Visone v. Reilly

• Decision Date: 04 October 1963
• Docket Number: No. A--616,A--616
• Citation: 194 A.2d 248,80 N.J.Super. 494
• Parties: James M. VISONE and Marie Visone, Plaintiffs-Appellants, v. Harold V. REILLY, City Manager of the City of Hackensack, et al., Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 494

80 N.J.Super. 494

194 A.2d 248

James M. VISONE and Marie Visone, Plaintiffs-Appellants, v. Harold V. REILLY, City Manager of the City of Hackensack, et al., Defendants-Respondents.

No. A--616.

Superior Court of New Jersey Appellate Division.

Argued Sept. 23, 1963.

Decided Oct. 4, 1963.

Irving C. Evers, Hackensack, for appellants.

George A. Brown, Hackensack, for respondents.

Before Judges GOLDMANN, KILKENNY and COLLESTER.

The opinion of the court was delivered by

GOLDMANN, S.J.A.D.

The sole issue on this appeal is whether an appointment made by a city manager pursuant to the authority vested in him by R.S. 40:82--4(d), N.J.S.A. requires the approval of the governing body in a municipality operating under the municipal manager form of government, L.1923, c. 113; R.S. 40:79--1 et seq., N.J.S.A., as amended.

The City of Hackensack operates under the Municipal Manager Act. Plaintiffs, citzens and taxpayers of the city instituted a proceeding in lieu of prerogative writs in the Superior Court, Law Division, Bergen County, challenging the validity of defendant City Manager Reilly's appointment of one Conforti to a vacancy in the office of deputy chief of police. They contended that the appointment was invalid because not approved by the municipal council, such approval being necessary under R.S. 40:82--4, N.J.S.A. An answer was filed on behalf of the city manager as well as the city council in which defendants, by way of separate defenses, alleged that (1) the appointment had been made in accordance with the statute, R.S. 40:82--4(d), N.J.S.A. and paragraph (b) of section V of ordinance No. 654 governing the police department of Hackensack; and (2) Conforti had been validly appointed and lawfully held the office of deputy chief. Plaintiffs then gave notice of motion for summary judgment based upon the pleadings and a stipulation of facts attached to the notice. Among the facts stipulated was that the city manager had appointed Conforti to a vacancy in the office of deputy chief on October 10, 1962, had reported the appointment to a meeting of the city council held November 5, 1962, and that the city council had taken no confirmatory or formal action with respect to the appointment. The Law Division judge denied the motion, holding that the appointment need not be confirmed by the city council.

Defendants thereafter moved for summary judgment on the pleadings. The motion was granted, the trial judge again holding that Conforti's appointment need not be confirmed by the city council, and that the complaint did not set forth a cause of action upon which relief could be granted.

R.S. 40:82--4, N.J.S.A. deals with the duties and powers of a municipal manager. Subsection (d) provides that the municipal manager shall

'Appoint and remove all department heads and all other officers, subordinates, and assistants for whose selection or removal no other method is provided in this subtitle (R.S. 40:79--1 et seq., N.J.S.A.), supervise and control his appointees, and report all appointments or removals at the next meeting thereafter of the municipal council.'

The final paragraph of R.S. 40:82--4, N.J.S.A. reads:

'The municipal manager shall in all matters act under the direction and supervision and subject to the approval of the municipal council.'

Ordinance No. 654 governing the Hackensack Police Department provides, in section V, paragraph (b):

'Appointments to the Department, the filling of vacancies and promotions shall be made by the City Manager in accordance with the rules and regulations of the State of New Jersey, Department of Civil Service, and as otherwise prescribed by the Statutes of the State of New Jersey with respect thereto, and ordinances pursuant thereto * * *.'

Plaintiffs do not contend that the office of deputy chief of police is not to be filled by appointment of the municipal manager. Recognizing that he has such power, they argue that the appointment must be confirmed by the city council, reliance being placed on the final paragraph of R.S. 40:82--4, N.J.S.A., quoted above.

Under the municipal manager form, the municipal council is the governing body of the municipality. R.S. 40:81--9, N.J.S.A. It 'shall continue or create, and determine and define the powers of (the several) executive and administrative departments, boards and offices * * * as it may deem necessary for the proper and efficient conduct of the affairs of the municipality by law.' R.S. 40:81--10, N.J.S.A. The only power it has over appointments is that set out in R.S. 40:81--11, N.J.S.A., as amended, which provides that the municipal council 'shall appoint a municipal manager, an assessor, or where required by law a board of assessors, an auditor, a treasurer, a clerk, and an attorney.' Such appointees hold office during the pleasure of the council. The municipal council may appoint advisory boards with power to make investigations and recommendations. R.S. 40:81--13, N.J.S.A. It also appoints the municipal magistrate. N.J.S. 2A:8--5, N.J.S.A. It has no other appointment powers than those expressly conferred by statute.

The municipal manager is the chief executive and administrative officer of the municipality. R.S. 40:82--4(a), N.J.S.A. The Legislature has conferred plenary powers upon him so that he may effectively and efficiently discharge the duties of his office. R.S. 40:82--4, N.J.S.A. It has protected the manager from council interference by expressly providing in R.S. 40:81--16, N.J.S.A. that

'It is the intention of this subtitle that the municipal council shall act in all matters as a body, and it is against the spirit of this subtitle for any of its members to seek to influence the official acts of the municipal manager, or any other officer, or to interfere in any way with the performance by such officers of their duties. * * *'

In conferring broad powers of appointment upon the municipal manager under R.S. 40:82--4(d), N.J.S.A. the Legislature did not require that his appointments be confirmed by the municipal council. The manager's only responsibility is to report appointments or removals. Basic to the municipal manager form of government is that the council shall be the policy-making body, and the manager the chief administrator. The council does not and should not attempt to dictate or confirm appointments, nor importune the manager on appointments, or indeed on any other administrative matter. See Ridley and Nolting, The City Manager Profession, page 30 (1934). Had the Legislature desired to depart from this basic principle of municipal manager government, it could have so provided in R.S. 40:82--4(d), N.J.S.A. by requiring council approval of appointments. See, for example, the provision in the very next subsection, R.S. 40:82--4(e), N.J.S.A., where, in contrast to subsection (d), the Legislature has specifically provided that the manager's negotiation of contracts is subject to the approval of the municipal council.

It should also be noted that subsection (d) is not limited to appointments only, for it also speaks of the removal of appointees and their supervision and control. Thus, the municipal manager is given complete charge of personnel administration under the...