Township Committee of Hazlet Tp., Monmouth County v. Morales

• Decision Date: 24 March 1972
• Citation: 119 N.J.Super. 29,289 A.2d 563
• Parties: TOWNSHIP COMMITTEE OF the TOWNSHIP OF HAZLET, MONMOUTH COUNTY, Plaintiff, and Thomas O. Kelly, Plaintiff-Intervenor, v. Joseph A. MORALES and Hazlet Township Sewerage Authority, Defendants.
• Court: New Jersey Superior Court

Page 29

119 N.J.Super. 29

289 A.2d 563

TOWNSHIP COMMITTEE OF the TOWNSHIP OF HAZLET, MONMOUTH COUNTY, Plaintiff and Thomas O. Kelly, Plaintiff-Intervenor, v. Joseph A. MORALES and Hazlet Township Sewerage Authority, Defendants.

Superior Court of New Jersey,

Law Division.

March 24, 1972.

Francis X. Journick, Holmdel, attorney for plaintiff Township Committee of the Township of Hazlet.

Edwin A. Kolodziej, Sayreville, attorney for plaintiff-intervenor Thomas O. Kelly (Dennis M. Lamber, Sayreville, appearing of counsel).

Saling, Moore, O'Mara & Coogan, Eatontown, attorneys for defendants (John W. O'Mara, Eatontown, appearing of counsel).

LANE, J.S.C.

This matter is before the court on a motion for summary judgment on behalf of Thomas O. Kelly, plaintiff-intervenor, a taxpayer and resident of the Township of Hazlet. The complaint in lieu of prerogative writ contests the validity of defendant Joseph A. Morales' appointment as a member of the Hazlet Township Sewerage Authority.

On December 21, 1971 the Township Committee of Hazlet by a 3--2 vote appointed Morales to membership on the Sewerage Authority for the term of December 21, 1971 to January 31, 1975. At the time Morales was a participating member of the township committee and voted in the affirmative for his own appointment. In the November 1971 election he had been defeated for re-election to the township committee. A member of the Sewerage Authority receives a salary of $1500 a year.

On January 3, 1972 plaintiff township committee commenced this action in lieu of prerogative writ seeking an order declaring the invalidity of defendant Morales' appointment; declaring a vacancy on the Sewerage Authority; restraining defendant Morales from performing any acts as a member of the Sewerage Authority; and restraining defendant Hazlet Township Sewerage Authority from taking any action for which a majority vote of the membership of the Sewerage Authority is necessary where the majority vote in favor would not exist but for the affirmative vote of defendant Morales.

An earlier motion for summary judgment was made by plaintiff township. That motion was denied on the ground, among others, of doubt of the standing of the township committee to institute the action. The earlier denial of the township's motion is not Res judicata so far as the motion brought on behalf of Kelly which is now before the court.

N.J.S.A. 40:14A--1 et seq. provides for municipal and county sewerage authorities. N.J.S.A. 40:14A--5 provides in part:

(c) * * * neither the holding of any office or employment in the government of any county or municipality or under any law of the State nor the owning of any property within the State shall be deemed a disqualification for membership in or employment by a sewerage authority, and members of the governing body of a local unit may be appointed by such governing body and may serve as members of a sewerage authority. * * *

While N.J.S.A. 40:14A--5(c) allows a member of a governing body to serve as a member of a sewerage authority (see N.J.S.A. 40:46--5, prohibiting generally such dual appointments, and O'Keefe v. Dunn, 89 N.J.Super. 383, 215 A.2d 66 (Law Div.1965), aff'd o.b. 47 N.J. 210, 219 A.2d 872 (1966), holding that a statute allowing membership on a governing body and on a housing authority was an exception to the general provisions of N.J.S.A. 40:46--5), plaintiff argues that N.J.S.A. 40:14A--5(c) does not permit a member of a governing body to vote for himself for such appointment.

A public officer has the duty of serving the public with undivided loyalty, uninfluenced in his official actions by any private interest or motive whatsoever. He holds a position of public trust. He is under an inescapable obligation to serve the public with the highest fidelity, good faith and integrity. The law tolerates no mingling of self-interest; it demands exclusive loyalty. Driscoll v. Burlington-Bristol Bridge Co., 8 N.J. 433, 474--475, 86 A.2d 201 (1952), cert. den. Burlington County Bridge Commission v. Driscoll, 344 U.S. 838, 73 S.Ct. 25, 97 L.Ed. 652 (1952); Newton v. Demas, 107 N.J.Super. 346, 349, 258 A.2d 376 (App.Div.1969), cert. den. 55 N.J. 313, 261 A.2d 357 (1970); Aldom v. Roseland, 42 N.J.Super. 495, 500--501, 127 A.2d 190 (App.Div.1956).

A member of a municipal governing body may be disqualified from voting on a matter in which he is personally interested. See Griggs v. Princeton Borough, 33 N.J. 207, 219--220, 162 A.2d 862 (1960); Van Itallie v. Franklin Lakes, 28 N.J. 258, 267, 146 A.2d 111 (1958); McNamara v. Saddle River, 64 N.J.Super. 426, 429, 166 A.2d 391 (App.Div.1960); Aldom v. Roseland, Supra, 42 N.J.Super. at 501, 127 A.2d 190; Piggott v. Hopewell, 22 N.J.Super. 106, 110, 91 A.2d 667 (Law Div.1952). See generally, Annotation, 'Member of governmental board voting on measure involving his personal interest,' 133 A.L.R. 1257 (1941).

Generally, whether a particular interest is sufficient to disqualify is factual, depending upon the circumstances of the particular case. Van Itallie v. Franklin Lakes, Supra, 28 N.J. at 268, 146 A.2d 111; Aldom v. Roseland, Supra, 42 N.J.Super. at 503, 127 A.2d 190. The question is always whether the circumstances could reasonably be interpreted to show that they had the likely capacity to tempt the official to depart from his sworn public duty. Griggs v. Princeton Borough, Supra, 33 N.J. at 219, 162 A.2d 862; Van Itallie v. Franklin Lakes, Supra, 28 N.J. at 268, 146 A.2d 111. Actual proof of dishonesty need not be shown. LaRue v. East Brunswick, 68 N.J.Super. 435, 447, 172 A.2d 691 (App.Div.1961); S. & L. Associates, Inc. v. Washington Tp., 61 N.J.Super. 312, 329, 160 A.2d 635 (App.Div.1960), aff'd in part, rev'd in part 35 N.J. 224, 172 A.2d 657 (1961); Aldom v. Roseland, Supra, 42 N.J.Super. at 503, 127 A.2d 190.

The interest which disqualifies is a personal or private one, not such an interest as the public officer has in common with all other citizens. Kramer v. Bd. of Adjust., Sea Girt, 45 N.J. 268, 282, 212 A.2d 153 (1965); Aldom v. Roseland, Supra, 42 N.J.Super. at 507, 127 A.2d 190; Piggott v. Hopewell, Supra, 22 N.J.Super. at 111, 91 A.2d 667.

In Aldom v. Roseland, Supra, Justice, then Judge, Francis said:

The interest which disqulalifies is not necessarily a direct pecuniary one, nor is the amount of such an interest of paramount importance. It may be indirect; it is such an interest as is covered by the moral rule: no man can serve two masters whose interests conflict. Basically the question is whether the officer, by reason of a personal interest in the matter, is placed in a situation of temptation to serve his own purposes to the prejudice of those for whom the law authorizes him to act as a public official. And in the determination of the issue, too much refinement should not be engaged in by the courts in an effort to uphold the municipal action on the ground that his interest is so little or so indirect. Such an approach gives recognition to the moral philosophy that next in importance to the duty of the officer to render a righteous judgment is that of doing it in such a manner as will beget no suspicion of the pureness and integrity of his action. * * * (42 N.J.Super. at 502, 127 A.2d at 194)

However, a remote and speculative interest will not be held to disqualify. See Van Itallie v. Franklin Lakes, Supra, 28 N.J. at 269, 146 A.2d 111.

In most cases in which it has been held that a public officer had a disqualifying interest, a direct or indirect pecuniary or other benefit to the official himself or to a relative or employer was involved. See Griggs v. Princeton Borough, Supra, 33 N.J. at 207, 162 A.2d 862 (University was principal stockholder of a corporation which would benefit by the designation of a particular area as 'blighted'; determination by borough council was voided because two of the participating councilmen were professors of the University); Pyatt v. Mayor, etc., Dunellen, 9 N.J. 548, 89 A.2d 1 (1952) (zoning ordinances voided where councilmen voting for enactment were employees of a corporation substantially benefited); S. & L. Associates, Inc. v. Washington Tp., Supra, 61 N.J.Super. at 312, 160 A.2d 635 (zoning amendment enhancing value of property owned by certain participating members of the governing body invalidated); Aldom v. Roseland, Supra, 42 N.J.Super. at 503, 127 A.2d 190 (zoning ordinance voided where employer of councilman who voted for enactment would be benefited); Hochberg v. Freehold, 40 N.J.Super. 276, 283, 123 A.2d 46 (App.Div.), certif. den. 22 N.J. 223, 125 A.2d 235 (1956) (zoning amendment permitting enlargement of a horse track at which a participating councilman operated a horsemen's kitchen voided). But see Van Itallie v. Franklin Lakes, Supra, 28 N.J. at 258, 146 A.2d 111 (zoning amendment upheld although participating councilman's brother held a 'lower echelon' position in a benefited corporation); Wilson v. Long Branch, 27 N.J. 360, 142 A.2d 837 cert. den. 358 U.S. 873, 79 S.Ct. 113, 3 L.Ed.2d 104 (1958) (resolution by governing body designating area as blighted upheld although two members of planning board were officers in an institution which held mortgages on property within the area and a third member was a health official and lived 300 feet from the area).

In dealing with the issue of disqualifying self-interest, the courts frequently have made a distinction between quasi-judicial action and legislative action. See Pyatt v. Mayor, etc., of Dunellen, Supra, 9 N.J. at 554, 555, 89 A.2d 1; Bd. of Ed. of West Orange v. International Union Eng., 109 N.J.Super. 116, 120, 262 A.2d 426 (App.Div.1970); Aldom v. Roseland, Supra, 42 N.J.Super. at 508, 127 A.2d 190; Piggott v. Hopewell, Supra, 22 N.J.Super. at 110--111, 91 A.2d 667. The implication is that if the municipal action is legislative in nature, it may not be interfered with except upon a showing that it is tainted with fraud, or palpably not in the service of the...