CITY COUNCIL OF THE CITY OF ORANGE TOWNSHIP VS. WILLIS EDWARDS, III (L-1805-13, ESSEX COUNTY AND STATEWIDE) (A-3729-15T4)
The Mayor of the City of Orange Township appointed defendant as Acting Business Administrator. Plaintiff did not confirm the appointment, and the municipal ordinance required the mayor to remove acting persons after ninety days. In contravention of the Council's directive and the applicable law, the mayor appointed defendant as Deputy Business Administrator. Defendant thereafter performed functions, signed official documents and collected a salary as the Business Administrator. Following the entry of an order to show cause directing defendant to cease performing all functions of a Business Administrator, defendant left the position. The mayor then appointed him as chief of staff. A second judge vacated certain portions of the order to show cause, but left intact the provision that only a department director had authority to appoint a deputy. Nevertheless, defendant resumed the title and salary, and performed the functions of Business Administrator. N.J.S.A. 40:69A-43.1 provides that only the director of a department may appoint a deputy director. Therefore, the mayor had no authority to appoint defendant to the position. Furthermore, the City abolished the position of deputy business administrator in 1985 by municipal ordinance. The panel finds defendant's appointment as deputy was an illegal act — an act that was ultra vires in the primary sense and, therefore, void. The panel rejects defendant's argument that he accepted the position of Deputy Business Administrator in good faith and with the "reasonable understanding" that the mayor had the authority to appoint him to the post. Defendant is a highly educated man who had served in the state legislature and taught college courses in municipal government and public administration. He acknowledged having reviewed the Faulkner Act, N.J.S.A. 40:69A-1 to -210, and the City ordinances that pertained to his employment. Defendant did not demonstrate any factual dispute in the events surrounding his appointment, nor any ambiguity in the controlling statutes. Because he lacked good faith in accepting and remaining in the post, the panel rejects defendant's argument that he should be permitted to retain his salary under equitable theories of quantum meruit or equitable estoppel. The sole remedy to make the aggrieved taxpayers whole is to disgorge defendant of the monies paid to him during his service in the unlawful appointment.
