Georgia v. Suruda

• Decision Date: 14 October 1977
• Citation: 154 N.J.Super. 439,381 A.2d 821
• Parties: Joseph F. GEORGIA, Joseph Scott, Thornton Smith and Robert Janiszewski, Plaintiffs, v. William A. SURUDA, Beatrice Baily, Rev. Victor R. Yanitelli and Dominick J. Pugliese, Defendants.
• Court: New Jersey Superior Court

Page 439

154 N.J.Super. 439

381 A.2d 821

Joseph F. GEORGIA, Joseph Scott, Thornton Smith and Robert Janiszewski, Plaintiffs, v. William A. SURUDA, Beatrice Baily, Rev. Victor R. Yanitelli and Dominick J. Pugliese, Defendants.

Superior Court of New Jersey, Law Division.

Oct. 14, 1977.

Seymour Margulies, Jersey City, for plaintiffs (Brigadier & Margulies, Jersey City, attorneys).

Eric A. Summerville, Jersey City, for defendants (Summerville, Radding & Campbell, Jersey City, attorneys).

CALISSI, J. S. C.

The Board of Education of Jersey City consists of nine members. Presently there are 12. This anomaly results from the fact that both outgoing Mayor Paul T. Jordan and newly elected Mayor Thomas X. Smith have each appointed three members to the school board to fill the same three vacancies.

Plaintiffs seek to have themselves declared the lawful members of the school board and to oust defendants from their positions as members. They contend that the appointments of all defendants are in violation of N.J.S.A. 40:69A-208 and N.J.S.A. 40A:9-156. The pertinent provisions of those statutes provide respectively as follows:

N.J.S.A. 40:69A-208.

(a) No subordinate board, department, body, office, position or employment shall be created and no appointments shall be made to any subordinate board, department or body, or to any office, employment or position, including without limitation patrolmen and firemen, between the date of election of officers and the date the newly elected officers take office under any optional plan.

N.J.S.A. 40A:9-156

* * * No appointment of any officer shall be made by the mayor or other chief executive officer or by the governing body of any municipality where the term of the office is to commence after the expiration of the term of the officer making the appointment or of any member of the governing body.

Defendants counter by arguing that N.J.S.A. 40:69A-208 is inapplicable to the facts of this case and that N.J.S.A. 18A:12-8 mandates that appointment of members of the board of education in first-class cities shall be made in June with their terms to commence July 1. That statute provides:

In districts, other than those in cities of the first class, the members of the board shall be appointed between January 2 and January 15 and their terms of office shall begin on February 1, next succeeding, and in districts in cities of the first class they shall be appointed during the month of June and their terms of office shall begin on July 1, next succeeding. (Emphasis supplied)

Defendants also contend that N.J.S.A. 40A:9-156 does not apply to the appointment of members of the board of education, and even if it were assumed that the statute applied, the appointments of Suruda and Baily were not prospective, and therefore not violative of that provision.

The appointment of Pugliese involves factual issues varying from those involved in the appointments of Suruda and Baily, and will therefore be considered separately. (Rev. Yanitelli resigned following the commencement of this action).

The parties have filed cross-motions for summary judgment.

The relevant facts are not in dispute. Jersey City is a Type I School District ¹ with a board of education consisting of nine members ² appointed by the mayor ³. In first-class cities members are appointed during the month of June and their term of office commences on July 1. ⁴

On June 28, 1977, at a regular meeting of the board of education, Wellington Davis, a member of the board, announced his intention to resign. Following the meeting he proceeded to the mayor's office where a letter of resignation effective June 28, 1977 was prepared by the mayor's secretary, signed by Davis and submitted to then Mayor Jordan. The following day the mayor appointed defendant Pugliese to the vacancy created by Davis' resignation. On the same day Pugliese submitted a letter to the city clerk, of resignation from his position on the municipal council, effective June 29, 1977 at the close of the business day. Pugliese took the oath of office as a school board member after 4 p. m. on June 29, 1977. ⁵

On June 28, 1977 Mayor Jordan appointed defendants Suruda, Baily and Rev. Yanitelli to the board of education, for a term of three years, to commence July 1, 1977 and end June 30, 1980.

Mayor Jordan did not seek re-election, and in the May 10, 1977 mayoralty election Mayor Smith was elected. He took the oath of office July 1, 1977. On that date the new mayor appointed plaintiffs to the office of member of the board of education for a term beginning July 1, 1977 and ending June 30, 1980.

Plaintiffs have questioned the effectiveness of the resignations of Davis and Pugliese. N.J.S.A. 40A:9-11 states that a vacancy arises when the resignation of an officer is accepted by the proper authority. ⁶ In this case the proper authority was Mayor Jordan, the officer authorized to fill the vacancy. State ex rel. Kuberski v. Haussermann, 113 N.J.L. 162, 172 A. 738 (Sup.Ct.1934). As the affidavits indicate, this was done, and therefore Davis' resignation was effective at 4 p. m. on June 28. Regarding Pugliese's resignation from the city council, N.J.S.A. 40:45B-6 governs the means of resigning from governing bodies. ⁷ Subsection (b) states that one way is to file a written resignation with the municipal clerk. As Pugliese's affidavit indicates, this was done on June 29. This sequence of events shows that Davis duly resigned from the board of education, creating a vacancy which was filled by Pugliese after he had effectively resigned from the municipal council. Plaintiffs' argument that the Pugliese appointment violated N.J.S.A. 40A:9-156 and that he held inconsistent offices simultaneously, is incorrect.

The fact that only one day remained in Mayor Jordan's term when Pugliese took office does not invalidate the appointment. In Bakely v. Nowrey,68 N.J.L. 95, 52 A. 289 (Sup.Ct.1902), aff'd 68 N.J.L. 732, 54 A. 833 (E. & A.1903), the term of office of the mayor-elect of Camden began at 12 noon on January 1, 1902, at which time his predecessor's term expired. On that morning the incumbent mayor appointed two police officers to existing vacancies on the police force, and they were sworn in at 10:30 a. m. The new mayor removed the two police officers. After reviewing the facts the court ruled in favor of the two appointees of the incumbent mayor on the basis that "Any vacancy in office occurring from any cause, prior to twelve o'clock noon on January 1, 1902, and which vacancy the mayor could fill, the outgoing mayor of Camden had a right to fill." No case or statute has modified that principle. The Bakely case has recently been affirmed in Thomas v. McGrath, 145 N.J.Super. 288, 367 A.2d 898 (App.Div.1976), where the court held that the fact that appointments were made in the waning hours of an official's term of office is irrelevant. Although it may have been made in the final days, Pugliese's appointment was not prospective within the meaning of N.J.S.A. 40A:9-156.

The appointments of Pugliese, Suruda and Baily to the Jersey City Board of Education raises an ostensible conflict of law between N.J.S.A 40:69A-208(a) and N.J.S.A. 18A:12-8. The latter provision, as previously stated, requires that in cities of the first class members of the board of education shall be appointed during the month of June for terms to commence July 1. N.J.S.A. 40:69A-208(a) states that no appointments shall be made to any office between "the date of election of officers and the date the newly elected officers take office under any optional plan." By themselves, there is no necessary conflict between the two statutes. If, for example, municipal officers are elected in November and take office in January, there is no conflict. Since Jersey City, however, has adopted Plan C of the Faulkner Act (N.J.S.A. 40:69A-1 et seq.), the mayor is elected in May and his term of office commences on July 1. In Type I school districts (like Jersey City) the mayor is also empowered to appoint the members of the board of education. Consequently, in election years or when the mayor is not a candidate for re-election or is defeated, the incumbent has the power to appoint members of the school board during the period between the election of officials and the time they take office. This has occurred here regarding all three defendants Suruda, Baily and Pugliese as all three were appointed during the month of June. The question before the court is whether N.J.S.A. 40:69A-208(a) works to invalidate the appointments. No case concerning that issue has been decided by our courts.

Except for the interpretation of § 208, Downey v. Jersey City Bd. of Ed., 74 N.J.Super. 548, 181 A.2d 795 (App.Div.1962), only tangentially touches on the main issue involved here. It concerned the appointment of members of the board of education between the time a new mayor was elected and the time he took office. During that period the municipality was also awaiting the effective date of a Faulkner Act form of government. It was held that N.J.S.A. 40:69A-208(a) worked to invalidate the appointments of the outgoing mayor. The decision was two-fold. First, the court found that even though N.J.S.A. 18A:12-8 is a specific statute, and N.J.S.A. 40:69A-208 is general, § 208 controlled. The court stated that the intent of the Legislature in enacting § 208 was to give Faulkner Act communities a "new broom," and therefore to allow N.J.S.A. 18A:12-8 to control would subvert that purpose. The second part of the decision construed the words "any office" to include board of education members.

The crucial factual difference here is that the case at bar involves a change of administration and not the transition from a Walsh Act form of government to a new plan under the Optional Charter Act. The rationale of Downey was that the mayor was a holdover from a previous form of government and that N.J.S.A. 40:69A-208(a) prohibited appointments by officials who remained...