Pillsbury v. Board of Chosen Freeholders of Monmouth County

• Decision Date: 11 April 1975
• Citation: 337 A.2d 632,133 N.J.Super. 526
• Parties: John M. PILLSBURY, Plaintiff, v. The BOARD OF CHOSEN FREEHOLDERS OF the COUNTY OF MONMOUTH and Richard T. O'Connor, Defendants, BOARD OF CHOSEN FREEHOLDERS OF thr COUNTY OF MONMOUTH, Plaintiff, v. John M. PILLSBURY, Defendant.
• Court: New Jersey Superior Court

Page 526

133 N.J.Super. 526

337 A.2d 632

John M. PILLSBURY, Plaintiff, v. The BOARD OF CHOSEN FREEHOLDERS OF the COUNTY OF MONMOUTH and Richard T. O'Connor, Defendants, BOARD OF CHOSEN FREEHOLDERS OF thr COUNTY OF MONMOUTH, Plaintiff, v. John M. PILLSBURY, Defendant.

Superior Court of New Jersey Law Division.

April 11, 1975.

Robert V. Carton, Asbury Park, for plaintiff and defendant John M. Pillsbury (Carton, Nary, Witt & Arvanitis, Asbury Park, attorneys).

Robert I. Ansell, Asbury Park, for defendant and plaintiff Bd. of Chosen Freeholders of Monmouth County (Anschelewitz, Barr, Ansell & Bonello, Asbury Park, attorneys).

Richard T. O'Connor, pro se (Cerrato, O'Connor, Mehr & Saker, Freehold, attorneys).

HORN, A.J.S.C.:

Cross-actions in lieu of prerogative writs were instituted by the above-named parties, John M. Pillsbury (Pillsbury) and the Board of Chosen Freeholders of Monmouth County (board). Richard T. O'Connor is named a party defendant in the action brought by Pillsbury.

Because the actions are interrelated and involve common questions of law as well as fact, they were consolidated by consent, and also by consent the venue thereof was transferred to Atlantic County.

The primary issue which emerges from a review of each of the complaints is whether a county counsel whose three-year term of office has not expired may be compelled, without more, to terminate his services simply because a majority of the members of the freeholder board assert they have no confidence in him as county attorney.

An outgrowth of the controversy is whether the board may transfer the duties and responsibilities of the office of county counsel to another without legally terminating the term of the incumbent.

Upon the return of respective orders to show cause the arguments of counsel indicated there were no substantial factual questions. For all practical purposes the return was treated as though there were cross-motions for summary judgment.

The complaints and affidavits reveal that Pillsbury's three-year term as county counsel will not expire, according to the resolution appointing him, until October 19, 1976. His appointment was made pursuant to N.J.S.A. 40A:9--43, which specifically directs that the term of office of the county counsel shall be three years.

On January 2, 1975 the board adopted two resolutions. By one, Richard T. O'Connor was appointed special counsel 'to serve the County of Monmouth' for a term of one year. The duties of the special counsel were defined as follows:

* * * to review and approve all contracts, deeds, instruments and documents prior to the execution thereof by or on behalf of the County, and to serve as legal advisor to the various departments of the County unless otherwise specified, and to perform such other legal services as directed by the Board of Chosen Freeholders from time to time.

The second resolution requested county counsel Pillsbury to report to the board in writing on or before January 20, 1975 a detailed list concerning all matters then outstanding in which the county was involved, including, but not limited to, information as to each matter. Such a report was submitted to the board on or about January 20, 1975.

On January 21, 1975 the board adopted a motion directing Pillsbury to turn over all records and files to special counsel and further requested that he submit his resignation. Pillsbury declined both requests.

On February 4, 1975 the board enacted another resolution directing Pillsbury to turn over all records, materials and files to the director of the board, in order that it could review same

* * * and assign the legal work in its discretion as it deems necessary and desirable with a view toward avoiding expensive litigation, yet providing most efficient and thorough professional legal services to the County. The Board shall assign the legal work with due regard to the status of the matter and the nature of the work to be performed.

This resolution also provided that Pillsbury 'need no longer appear at the Workshop or Public meetings of this Board.'

Pillsbury countered, advising the director of the board that he would not permit actions that would relieve county counsel of all legal work and thereby result in that office becoming an empty shell. Shortly thereafter these actions were instituted.

Pillsbury's complaint, after recounting substantially what is stated above, asserts that Mr. O'Connor has usurped the office of county counsel, taken upon himself the privileges thereof, and since January 2, 1975 has interfered with Pillsbury's performance of his duties as county counsel.

The relief sought by Pillsbury is: (1) a judgment determining and establishing the duties of county counsel; (2) enjoining and restraining the board from interfering with or denying the exercise by him of the full and complete duties and privileges of said office, and (3) restoring to him as such all rights, duties and privileges inherent in said office.

The complaint filed in behalf of the board asserts that Pillsbury has refused to turn over the files held by him as county counsel for review by the board, and that Pillsbury has failed to supply information concerning certain particular legal matters. It seeks judgment directing Pillsbury to turn over all files and records in the county in his possession for review by the board and ancillary relief.

It has been established that county counsel is an office (as distinguished from a position) and that a board of chosen freeholders is powerless to remove the occupant thereof, in the absence of cause, prior to the expiration of the statutory term for which the incumbent in appointed. Murphy v. Hudson Cty. Freeholders, 92 N.J.L. 244, 247, 104 A. 304 (E. & A.1918). The court stated, in passing:

* * * (I)t may not be amiss to say that the resolution (of dismissal) is particularly vicious in the present case, because it is based upon the assumed power of the board of chosen freeholders to dismiss a man from office who is apparently in the possession of it for a fixed term; and that without any charges laid against him, without any opportunity afforded to him to be heard, and without any suggestion of the basis upon which the action of the board was rested.

A similar holding was made by our former Supreme Court in Gallaher v. Camden City., 129 N.J.L. 290, 29 A.2d 406 (Sup.Ct.1942). In that case the court reviewed two resolutions adopted by the board of chosen freeholders. One of the resolutions removed plaintiff from the position of county counsel and the other resolution appointed another person to that position for a fixed term. At the time of the adoption of the resolutions plaintiff (like Pillsbury in the instant case) was an incumbent of the office of county counsel for a term of three years, which had not as yet expired.

Citing Murphy v. Hudson Cty. Freeholders, Supra, the court likewise held that both resolutions were without authority--the first because there was no statutory authorization for removal, and the second because there was no vacancy in the office and no statutory provision authorizing the appointment of more than one person to the office.

Even before Murphy and Gallaher, implicit in the holding of State, Hoxey, pros., v. Paterson, 40 N.J.L. 186 (E. & A.1878), was a similar holding. There the city charter authorized the board of aldermen to annually appoint certain officers, including city counsel, to hold their several offices for one year, unless sooner removed for cause upon a two-third vote. The ordinances prescribed the duties of city counsel.

The specific issue was whether the city had the right under its charter to employ and pay for legal services rendered by one other than the person who for the time being held the office of city counsel.

The court held that the corporate authorities would have the power under the charter provisions to employ associate counsel in defending suits brought against the corporation, or in which the city was interested; that the board of aldermen were the judges of the necessity of such employment in any particular case, and that the exercise of that discretion weas not a question for review in a court of law.

However, the court went on to say:

* * * (T)he power of the corporation to employ associate counsel does not involve the right, on the part of the city authorities, under the guise of such employment, to withdraw and take out of the hands of the city counsel any particular case or class of cases and to confide their management to others. (at 189)

* * * If the board of aldermen, or any committee of the board, can withdraw part of the law business of the corporation from the control of the city counsel, they can, in like manner, dispose of the whole; and if they possess this power in relation to the duties of the city counsel, they have the same power in relation to the duties of every city officer. Neither the consent of the officer nor his incompetency or neglect of duty, could form any valid excuse for the action of the city authorities; while holding the office he cannot voluntarily relieve himself of the obligations to perform all of the duties; and for incompetency or unfaithfulness, the only remedy is the amotion of the officer pursuant to the provisions of the charter.

See also, Byrne v. Wildwood, 95 N.J.L. 287, 112 A. 305 (Sup.Ct.1920).

Essentially, the board's contention is that the statute, N.J.S.A. 40A:9--43, providing for a mandatory term of office for county counsel, is incompatible with the rule-making power of the Supreme Court and is therefore unconstitutional, or at least must be subject to the rules of that court.

The asserted incompatibility arises from the fact that it is said that the statutory fixed-term requirement collides with the unique attorney-client relationship which traditionally permits the client to discharge his attorney at any time. This contention relies on DR2--110(B)(4), which provides that a lawyer shall withdraw...