O'Connor v. City of Union City

• Decision Date: 06 December 1971
• Citation: 117 N.J.Super. 575,285 A.2d 270
• Parties: John J. O'CONNOR, Plaintiff, v. CITY OF UNION CITY, a Municipal Corporation of the State of New Jersey, et al., Defendants.
• Court: New Jersey Superior Court

Page 575

117 N.J.Super. 575

285 A.2d 270

John J. O'CONNOR, Plaintiff, v. CITY OF UNION CITY, a Municipal Corporation of the State of New Jersey, et al., Defendants.

Superior Court of New Jersey,

Law Division.

Decided Dec. 6, 1971.

George J. Kaplan, Union City, for plaintiff.

Victor P. Mullica, Union City, for defendants City of Union City, James E. Lagomarsino and Harrison C. Hultman.

Richard J. Plaza, Bayonne, for defendant Libero D. Marotta.

LARNER, A.J.S.C.

This is an action in lieu of prerogative writs brought by plaintiff as a citizen and taxpayer of the City of Union City challenging the validity of a resolution adopted by the board of commissioners wherein they designated Libero D. Marotta as 'Special Counsel to the City of Union City for all matters pertaining to bond sales.' The matter came before the court on the return day of an order to show cause why the resolution should not be set aside as contrary to law and upon the application for preliminary restraints pending final hearing.

During the argument on the return date it became apparent that there are two issues to be determined in the litigation: (1) the validity of the resolution and the accompanying appointment of Marotta as special bond counsel, and (2) the reasonableness and propriety of the bill submitted by him in connection with the issuance of school bonds on June 1, 1971. Issue (1) is a legal one which can be determined in a summary manner at this time, as attested to by the stipulation of counsel. Issue (2) is a factual one requiring a plenary hearing.

It is plaintiff's contention that the appointment of Marotta by the board of commissioners in the manner expressed in the resolution creates a 'position' which can only be brought into valid existence by the adoption of an ordinance with all its legal formalities and not by a mere resolution. Defendants, to the contrary, assert that the designation of Marotta as bond counsel does not create an 'office' or 'position' but merely names him as an employee with the result that the resolution suffices for validity.

It is well settled that a municipal 'office' or 'position,' if not expressly provided for by statute, can be created only by ordinance. N.J.S.A. 40:48--1; Jersey City v. Department of Civil Service, 7 N.J. 509, 524, 81 A.2d 777 (1951); Handlon v. Belleville, 4 N.J. 99, 108, 71 A.2d 624 (1950); Wagner v. Lodi, 56 N.J.Super. 204, 206, 152 A.2d 389 (App.Div.1959); Orange v. Goldberg, 137 N.J.L. 73, 75--76, 58 A.2d 211 (Sup.Ct.1948); Serritella v. Water Commission, Garfield, 128 N.J.L. 259, 263, 25 A.2d 263 (Sup.Ct.1942); Toomey v. McCaffrey, 116 N.J.L. 364, 366, 184 A. 835 (Sup.Ct.1936).

The underlying rationale for this requirement is that the creation of a new office or position, involving as it does an additional financial burden for the public, should be preceded by the public notice and deliberation attendant upon the passage of an ordinance. See Kovalycsik v. Garfield, 58 N.J.Super. 229, 234, 156 A.2d 31 (App.Div.1959); Orange v. Goldberg, Supra; Davaillon v. Elizabeth, 121 N.J.L. 380, 381, 2 A.2d 369 (Sup.Ct.1938).

Courts in the past have drawn distinctions in definition and consequences between an 'office,' a 'position' and an 'employment.' Generally, it has been held that an 'office' involves employment which is governmental in character and duties which are certain and permanent; that a 'position' is analogous to an office in that the duties are also permanent and certain, but differs therefrom in that the duties may be nongovernmental and not established by law; that 'employment' differs from both an office and position in that the duties are neither certain, permanent nor governmental. See Wilentz ex rel. Golat v. Stanger, 129 N.J.L. 606, 614--615, 30 A.2d 885 (E. & A.1943); Newark v. Department of Civil Service, 68 N.J.Super. 416, 429, 172 A.2d 681 (App.Div.1961); Kovalycsik v. Garfield, Supra 58 N.J.Super. at 236, 156 A.2d 31; Board of Chosen Freeholders of Hudson County v. Brenner, 25 N.J.Super. 557, 562--564, 96 A.2d 776 (App.Div.1953); Fredericks v. Board of Health, 82 N.J.L. 200, 201--202, 82 A. 528 (Sup.Ct.1912). The cases have concluded that although the creation of an 'office' of 'position' requires an ordinance, a mere 'employment' may be created by resolution.

In this case the governing body by its resolution sought to invest Marotta with the right to represent the municipality in all public bond matters in perpetuity or until revoked by a subsequent governing body, without specifying the term of his incumbency and without specifying the compensation to be paid to him. In effect, it sought to create an appointment which is hybrid in nature and which does not necessarily fit into the cubbyhole designations of 'office,' 'position' or 'employment.'

On mature analysis, there should be no need for exact classification within the dichotomy dictated by the cited cases since rigid classification is of little usefulness in deciding the issue at bar. See Glasser, 'A New Jersey Municipal Law Mystery: What Is a 'Public Office'?' 6 Rutgers L.Rev. 503 (1952). It is clear that the appointment herein names Marotta as the attorney on a perpetual and continual basis to handle all bond matters in the municipality, although the appointment can be modified or repealed by any subsequent resolution of this governing body or any future governing body.

It is the court's opinion, however, that despite the absence of a set term and despite the right of termination, the appointment with its involvement of continuity and exclusivity is of sufficient importance to the community to fall into the category of those matters which require the deliberate process of an ordinance. As noted in Kovalycsik v. Garfield, Supra, 58 N.J.Super. at 237, 156 A.2d at 35: '(T)he trend of the cases makes clear that the policy of the Home Rule Act, effectuated by requiring positions to be created by ordinance, is best served by a strict interpretation of the employee category.'

Applying this strict construction policy, it would follow that the nature of this appointment should require for validity the adoption of an ordinance rather than a resolution.

It should be noted, of course, that this conclusion does not detract from the right of a municipality to retain special counsel for a particular piece of litigation or legal work through a letter or resolution or other form without the necessity of adoption of an ordinance. However, where th appointment is not limited to a particular case or a particular matter but purports to retain an individual as counsel in perpetuity for all matters pertaining to bonds, the situation is one which requires the ordinance procedure.

In light of the foregoing, the court will enter judgment in favor of plaintiff declaring the resolution and the appointment of Marotta as bond counsel in general, void and of no effect. However, it is apparent from the proofs that Marotta did perform certain services in connection with a particular bond issue involving the school system of Union City. Retention for such an individual transaction would be perfectly proper Sans ordinance. He would, therefore, be entitled to the reasonable value of his services based upon the proofs as to the value of those services to the municipality.

Since the foregoing determination involving the validity of the appointment of defendant as bond counsel, the court held a plenary hearing on the issue of the reasonable value of the legal services rendered by defendant. In passing, it should be noted that Union City is generally represented by its corporation counsel, Cyril J. McCauley, whose tenure in office was sustained by this court in litigation wherein the newly elected group of commissioners sought to appoint Marotta to the position held by McCauley. Lynch and McCauley v. Union City, Dockets L--37629--69 and L--37625--69 (October 5, 1970), aff'd App.Div. Dockets A--310--70 and A--311--70 (November 4, 1971). Having been frustrated in their effort to reward Marotta by the abortive appointment as corporation counsel, the members of the governing body adopted the resolution discussed Supra appointing him as 'Special Counsel * * * fof all matters pertaining to bond sales,' thereby setting the scene for shunting the salaried corporation counsel and the within litigation relating to Marotta.

The evidence reveals that on March 4, 1971 the governing body of Union City adopted an ordinance authorizing a bond issue for capital projects for two schools in the district in the amount of $2,100,000. In...