Northwest Bergen County Utilities Authority v. Kathleen A. Donovan (075060) , 226 N.J. 432 ( 2016 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized).
Northwest Bergen County Utilities Authority v. Kathleen A. Donovan (A-36/37-14) (075060)
Argued April 11, 2016 -- Decided August 15, 2016
LaVECCHIA, J., writing for a majority of the Court.
In this appeal, the Court addresses the authority of the County Executive of Bergen County to take certain
actions affecting the Northwest Bergen County Utilities Authority (the Authority). Specifically, the Court is asked
to resolve (1) whether the County Executive had the authority to order the removal of certain commissioners; and
(2) whether by use of her veto power the County Executive could eliminate the Authority’s provision of (a) a $5000
stipend paid to commissioners, and (b) health benefits for the commissioners.
In 1985, the people of Bergen County adopted the “county executive plan” prescribed in N.J.S.A. 40:41A-
31 to -44 of the Optional County Charter Law (Charter Law). Under the plan, the “governing body” includes the
board of freeholders and the county executive, although the plan recognizes a separation of powers between the two.
Within Bergen County, the Authority operates to provide sewage treatment services in accordance with the
Municipal and County Utilities Authorities Law (MCUAL), N.J.S.A. 40:14B-1 to -78. Consistent with MCUAL
requirements, the freeholders passed a resolution in 1979, which authorized the reorganization of the Authority
under its present name, established staggered terms for reappointed members of the previous sewer authority, and
established a $5000 annual stipend for the first-appointed commissioners of the new reorganized Authority. The
term of the last of the commissioners appointed through the reorganizing resolution expired in 1984. Succeeding
commissioners have been paid an annual stipend of $5000 through monies incorporated in annual budget
submissions. There have not been any amendatory resolutions passed with respect to commissioner compensation
since the 1979 resolution. In or around 2004, the Authority began providing health benefits to commissioners by
including such benefits in annual budget submissions. The freeholders never passed a resolution or took other
legislative action to authorize those benefits for the commissioners.
The acts giving rise to this appeal commenced on November 1, 2011, when the Authority passed a
resolution approving its preliminary budget for 2012. The Authority forwarded the proposed budget to the County
Executive, Kathleen Donovan, who vetoed the portion of the meeting minutes that approved a budget containing
both a $5000 stipend and health care benefits for the Authority commissioners.
The Authority sought review of the County Executive’s veto before the Director of the Division of Local
Government Services within the Department of Community Affairs (DCA), who determined that the veto was valid
and binding. In response, the Authority held an emergency meeting on March 22, 2012, and voted to appeal the
Director’s decision to the Local Finance Board within the DCA. The County Executive vetoed the minutes of the
emergency meeting that authorized the appeal, contending that the Authority had violated requirements of the Open
Public Meetings Act (OPMA), N.J.S.A. 10:4-6 to -21. The Authority held another meeting on March 28, 2012, to
address the OPMA concerns. The Authority again passed a resolution authorizing an appeal to the Local Finance
Board, and the County Executive subsequently vetoed the portion of the minutes that authorized the appeal. The
County Executive also vetoed the portion of the minutes that approved use of Authority funds to finance the appeal.
After the Authority refused to amend its 2012 budget to remove the provision that funded a $5000 stipend and health
care benefits for the commissioners, the County Executive summarily dismissed seven of the nine commissioners.
The Authority filed a complaint in lieu of prerogative writs, alleging that the County Executive lacked the
authority to terminate the commissioners, to veto any of the meeting minutes that authorized the stipend and benefits
for the commissioners, or to veto the meeting minutes that authorized funding for an appeal. The trial court
reinstated the commissioners, finding that the County Executive could not terminate them without first finding that
they had committed misconduct or neglected their duties. In respect of the veto issues, the court concluded that the
veto of the meeting minutes that authorized the stipend and benefits was invalid, and that the acts of vetoing the
Authority’s administrative appeals and their funding were ultra vires.
1
Defendants appealed, and the Appellate Division affirmed in part and reversed in part. Most critically for
this appeal, the panel affirmed the trial court’s judgment on the termination issue, but reversed the judgment in other
respects, holding that the County Executive could veto the portion of the Authority’s meeting minutes that submitted
a 2012 Authority budget that included provision for the commissioners’ stipend and health care benefits.
The Court granted the Authority’s petition as well as defendants’ cross-petition. 220 N.J. 573 (2015).
HELD: The County Executive’s termination of the Authority commissioners was not conducted in accordance with
her authority, and her unilateral action was contrary to and in violation of N.J.S.A. 40:14B-16. Likewise, the County
Executive’s use of the veto power to diminish the compensation (the $5000 stipend) being paid to the commissioners
since 1979 violated N.J.S.A. 40:14B-17 and must be declared void. However, in respect of the health benefits provided
to the commissioners in more recent years, the County Executive’s supervisory authority to review and reject Authority
action through her veto power is broad and easily encompasses authority to disapprove such administrative action.
1. The dispute in this matter involves the proper interpretation of two statutory schemes -- the Charter Law and the
MCUAL. When interpreting multiple statutes touching upon the same subject, the goal is to seek and give effect to
the Legislature’s intent and to attempt to harmonize the provisions of all statutes that the Legislature has enacted
affecting the subjects involved. Here, the statutes can be reconciled and applied in a harmonious manner that fulfills
the legislative intent underlying each. (pp. 14-16).
2. The Court first considers the extensive authority of the County Executive over the administration of county
government and the tools at her disposal to carry out that responsibility. In addition to appointment power, the
county executive has general, but not unilateral, removal and suspension powers. The county executive has other
powers, such as veto power, which can be exercised in respect of the minutes of a county authority. On the other
hand, the MCUAL speaks directly to the commissioners’ right to hold office and protections during their terms.
With that statutory background, the Court reviews the removal of the seven commissioners. (pp. 16-19).
3. Review of the County Executive’s authority under the Charter Law and the MCUAL does not reveal a conflict
between the two statutory schemes. N.J.S.A. 40:14B-16 establishes that the commissioners hold their office for the
length of their term. However, the MCUAL recognizes limited, for-cause circumstances for which a member of a
utilities authority may be removed from office, subject to notice and hearing processes. That protection guaranteed
under the MCUAL does not conflict with the scheme for removal of persons under the Charter Law. Pursuant to the
Charter Law, the County Executive is the appointing authority for the members of the utilities authority, but her
power to remove is not unilateral. This appeal concerns office holders, protected from removal except for certain
cause bases, and entitled to serve out their terms and to continue in office until their successor is appointed. More
importantly, the County Executive did not follow the procedure that the Charter Law requires. In sum, the County
Executive’s termination of the commissioners was not conducted in accordance with her authority under N.J.S.A.
40:41A-37(c), and her unilateral action was contrary to and in violation of N.J.S.A. 40:14B-16. (pp. 20-24).
4. The Court notes a final reason for finding no conflict between the Charter Law and the MCUAL with respect to
removal of commissioners. The Charter Law specifically gave counties operating under the optional forms of
government the ability to reorganize, alter, or abolish county agencies, but carved out an exception for governmental
entities established under the MCUAL, N.J.S.A. 40:41A-30. That statutory section and the Sponsor’s Statement to
the 1997 amendment support the Court’s conclusion. (pp. 24-25).
5. Having determined that commissioners have protected rights under the MCUAL that must be respected if
harmonization is possible between that Act and the Charter Law, the Court turns to the County Executive’s veto of
the Authority’s minutes approving the $5000 stipend paid to commissioners. Although the county executive has
broad authority to exercise veto power over minutes on a wide range of topics, that power must be harmonized with
more specific protective legislation, such as N.J.S.A. 40:14B-17, which provides commissioners absolute protection
from reduction in compensation during the term of their office. The language of the 1979 resolution, establishing a
$5000 annual stipend for the first-appointed named commissioners of the new reorganized Authority, is ambiguous,
and the County Executive argues that the language merely authorized $5000 stipends for the named persons in the
resolution. Yet, for decades, the $5000 stipend has been treated as the compensation that came with appointment to
the position of commissioner. The Court is loath to interpret the 1979 resolution as not having set an annual
compensation that would be paid to commissioners upon appointment to a term on the Authority. (pp. 26-29).
2
6. With respect to health benefits, the County Executive’s determination to veto that portion of the minutes, and
thereby to prevent the provision of health benefits to the commissioners, was well within her prerogative. The
freeholders never authorized by resolution the provision of health benefits to Authority commissioners as part of any
compensation permitted under N.J.S.A. 40:14B-17. To the extent that the commissioners authorized those benefits
for themselves and included provision for those benefits within the budgetary line that encompassed benefits for
Authority employees, that action was subject to review by the County Executive. Her authority to reject Authority
action through her veto power under N.J.S.A. 40:41A-37(h) is broad and easily encompasses authority to disapprove
such action affecting the cost of services. (pp. 29-30).
The judgment of the Appellate Division is AFFIRMED IN PART and REVERSED IN PART.
JUSTICE SOLOMON, CONCURRING IN PART and DISSENTING IN PART, joins the majority’s
holding that the County Executive had the authority to veto the provision of health benefits to the commissioners,
but dissents from the majority’s conclusions that the County Executive did not have the authority under the Charter
Law to veto compensation for commissioners and to remove them from office. Justice Solomon expresses the view
that, to the extent there are the differences between the MCUAL and the Charter Law regarding the scope of the
County Executive’s veto and removal power, the MCUAL, as a general law, must yield to the provisions of the
Charter Law, which confer on the County Executive broad powers to veto any action taken by the Authority and
grant exclusive and discretionary power to remove commissioners of the Authority.
JUSTICE PATTERSON, CONCURRING IN PART and DISSENTING IN PART, joins the
majority’s holdings that the County Executive lacked the authority to remove the commissioners, and had the
authority to reject by veto the commissioners’ authorization of health benefits for themselves. Justice Patterson
disagrees with the majority’s holding that the County Executive lacked authority to veto the minutes providing for
the $5000 stipend to commissioners, and joins Justice Solomon’s separate opinion with respect to that issue.
CHIEF JUSTICE RABNER, JUSTICES ALBIN and FERNANDEZ-VINA, and JUDGE CUFF
(temporarily assigned) join in JUSTICE LaVECCHIA’s opinion. JUSTICE PATTERSON and JUSTICE
SOLOMON each filed separate opinions, concurring in part and dissenting in part.
3
SUPREME COURT OF NEW JERSEY
A-36/37 September Term 2014
075060
NORTHWEST BERGEN COUNTY
UTILITIES AUTHORITY,
Plaintiff-Appellant
and Cross-Respondent,
v.
KATHLEEN A. DONOVAN, COUNTY
EXECUTIVE OF THE COUNTY OF
BERGEN, and COUNTY OF BERGEN,
Defendants-Respondents
and Cross-Appellants,
and
BERGEN COUNTY BOARD OF CHOSEN
FREEHOLDERS,
Defendant.
Argued April 11, 2016 – Decided August 15, 2016
On certification to the Superior Court,
Appellate Division.
Jeffrey A. Zenn argued the cause for
appellant and cross-respondent (Sokol, Behot
& Fiorenzo, attorneys; Leon J. Sokol, of
counsel; Mr. Zenn, Mr. Sokol, and Steven N.
Siegel, on the briefs).
Frank P. Kapusinski argued the cause for
respondents and cross-appellants (Julien X.
Neals, County Counsel, attorney).
JUSTICE LaVECCHIA delivered the opinion of the Court.
1
We are called on to review the authority of the County
Executive of Bergen County to have taken certain employment and
other actions affecting the Northwest Bergen County Utilities
Authority (the Authority). The Authority initiated this action
by way of a complaint in lieu of prerogative writs that
challenged (1) the County Executive’s unilateral and immediate
termination of seven Authority commissioners; (2) the County
Executive’s veto of portions of the Authority’s budget related
to the commissioners’ salary and health benefits; and (3) the
County Executive’s vetoes of Authority action authorizing the
taking of an administrative appeal within the Department of
Community Affairs. We now affirm in part and reverse in part
the Appellate Division judgment that parsed the County
Executive’s ability to have taken those actions.
I.
This appeal requires us to address the intersection of
statutes governing the Authority and the form of government plan
adopted in Bergen County. Before detailing the actions and
counteractions taken by the parties, we set forth some
preliminary information about the statutory schemes pertaining
to each entity and some general background on the entities.
A.
Under the Optional County Charter Law (OCCL or Charter Law)
enacted in 1972, see L. 1972, c. 154 (codified originally as
2
N.J.S.A. 40:41A-1 to -144), the people of the counties of New
Jersey have the opportunity to select one of the optional forms
of government that the law sets forth. Although four plans are
authorized, we are concerned here with the county executive form
of government.
In 1985, pursuant to the procedures required under law, the
people of Bergen County adopted the “county executive plan”
prescribed in N.J.S.A. 40:41A-31 to -44 of the Charter Law.
That plan of government is subject also to the general
provisions set forth in Article 7 of the Charter Law and made
applicable to all optional plans under that law. See N.J.S.A.
40:41A-86 to -144 (Article 7).
Under the county executive plan, the term “governing body”
of the county is directed to be construed as including both the
board of freeholders and the county executive, N.J.S.A. 40:41A-
32(b), although the plan recognizes a separation of powers
between the two, ibid. Executive powers are conferred on the
county executive. See N.J.S.A. 40:41A-36 to -37. Legislative
and investigative powers are vested in the board of freeholders.
See N.J.S.A. 40:41A-38, -41; see also N.J.S.A. 40:41A-86
(stating general intent to invest boards of freeholders with
“such investigative powers as are germane to the exercise of its
legislative powers, but to retain in the head of the executive
3
branch full control over the county administration and over the
administration of county services”).
The county executive is responsible for the supervision,
direction, and control of the administrative departments of the
county. N.J.S.A. 40:41A-37(a). Consistent with that authority,
the county executive has the authority to appoint the heads of
county departments and their divisions. N.J.S.A. 40:41A-37(b).
The county executive also has appointment power over “the
members of all county boards, commissions and authorities,”
subject to the advice and consent of the board of freeholders.
Ibid.; see also N.J.S.A. 40:41A-41(a) (granting board power of
advice and consent over all appointments for which board
confirmation is specified).
B.
Within Bergen County, the Authority operates to provide
sewage treatment services in accordance with the Municipal and
County Utilities Authorities Law (MCUAL), N.J.S.A. 40:14B-1 to -
78. The Authority previously was known as Northwest Bergen
County Sewer Authority until it was reorganized under its
present name in 1979, pursuant to N.J.S.A. 40:14B-6 and -7.
The reorganization took place before Bergen County adopted
the county executive plan of government and therefore the 1979
reorganization occurred through freeholder action. Consistent
with MCUAL requirements, the county freeholders passed a 1979
4
resolution, accomplishing multiple purposes under the MCUAL.
The resolution authorized the reorganization, see N.J.S.A.
40:14B-4(a), established the required staggered terms for
reappointed members of the previous sewer authority, now newly
appointed named members of the seven-member utilities authority,
see N.J.S.A. 40:14B-4(a), (b)(1), and -6(b), and established a
$5000 annual stipend for the first-appointed named commissioners
of the new reorganized Authority, see N.J.S.A. 40:14B-17
(authorizing resolution, which creates reorganized sewerage
authority, to provide members with compensation for services
within annual or other limitations to be stated in such
resolution). The resolution did all that in relatively brief
language that stated, after authorizing the reorganization:
“the following persons [shall] be appointed as members of the
Bergen County Northwest Utilities Authority at an annual salary
of $5,000.00 effective immediately[.]” The resolution then
listed the reappointed members, by name, with specific term
limits fitting the statutory requirements for staggered terms of
varying length.
The MCUAL renders each commissioner an office holder,
entitled to retain office for a specific term and until a
successor is qualified. See N.J.S.A. 40:14B-16. The MCUAL also
provides that a commissioner’s compensation may not be reduced
during a member’s term of office except with consent. See
5
N.J.S.A. 40:14B-17. The dispute in this matter concerns the
meaning of those promises under the circumstances that occurred
in Bergen County.
The term of the last of the commissioners appointed through
the original reorganizing resolution expired in 1984.
Succeeding commissioners appointed to the Authority, including
the ones affected by the County Executive’s actions challenged
in this matter, apparently have been paid an annual stipend of
$5000 through monies incorporated in annual budget submissions.
Based on the record presented in this appeal, there have not
been any amendatory resolutions passed by the board of
freeholders since its 1979 resolution with respect to
commissioner compensation, at least not until the events that
are challenged in this matter began to unfold.
In or around 2004, the Authority also began providing
health benefits, under the State Health Benefits Program, to its
commissioners by including provision for same in annual budget
submissions. The record reveals that the Bergen County Board of
Freeholders never passed a resolution or took other legislative
action to specifically authorize those benefits for the
commissioners. As best as the record on appeal reveals, the
commissioners’ health benefits were not separately identified in
budget lines from expenses for the health benefits of the
Authority’s employees.
6
Finally, we note that, until this dispute, no veto action
previously was taken in respect of Authority minutes that
reflected the commissioners’ actions approving proposed budgets
containing expenditures for the stipends or providing for the
commissioners’ health benefits.
II.
The series of actions that provide the grist for this
appeal commenced with an Authority meeting conducted on November
1, 2011, when the Authority passed a resolution approving its
preliminary budget for 2012. The Authority forwarded the
proposed budget to the County Executive. Kathleen Donovan, the
County Executive during the contested actions involved in this
matter, vetoed the portion of the minutes of the Authority’s
meeting that approved a budget containing both a $5000 stipend
and health care benefits for the individual Authority
commissioners.
The Authority sought review of the County Executive’s veto
before the Director of the Division of Local Government Services
within the Department of Community Affairs (DCA), who determined
that the veto was valid and binding. In response, the Authority
held an emergency meeting on March 22, 2012, and voted to appeal
the Director’s decision to the Local Finance Board within the
DCA. The County Executive next vetoed the minutes of the
emergency meeting that authorized the appeal, contending that
7
the Authority had violated requirements of the Open Public
Meetings Act (OPMA), N.J.S.A. 10:4-6 to -21.
Although the Authority maintained that its meeting was not
flawed by any OPMA violations, it held another meeting on March
28, 2012, to address the County Executive’s OPMA concerns. The
Authority again passed a resolution authorizing an appeal to the
Local Finance Board. The County Executive subsequently vetoed
the portion of the minutes of that meeting that authorized the
appeal. The County Executive also vetoed the portion of the
minutes that approved use of Authority funds to finance the
appeal.
After the Authority refused to amend its 2012 budget to
remove the budgetary provision that funded a $5000 stipend and
health care benefits for the commissioners, the County Executive
summarily dismissed seven of the nine commissioners.1
The Authority filed a complaint in lieu of prerogative
writs, alleging that the County Executive lacked the authority
to terminate the commissioners, to veto any of the meeting
minutes that authorized the stipend and benefits for the
commissioners, or to veto the meeting minutes that authorized
1 Bergen County records show that, after the Authority was
reorganized, its seven-person membership increased to nine
members in 1981 and thereafter fluctuated but generally stayed
at a nine-member level, including at the time of the actions in
this matter.
8
funding for an appeal, as well as the appeal itself, to the
Local Finance Board. Defendants in this matter are Kathleen
Donovan (the County Executive), Bergen County, and the Bergen
County Board of Chosen Freeholders (collectively, defendants,
except where noted).
As a result of motions and cross-motions filed, the trial
court reinstated the commissioners, finding that the County
Executive could not terminate them without first finding that
the commissioners had committed misconduct or neglected their
duties. In respect of the veto issues, the court found that
compensation cannot be reduced while the commissioners are in
office; therefore, the court concluded that the veto of the
meeting minutes that authorized the stipend and benefits was
invalid. Moreover, the court determined that the County
Executive’s acts of vetoing the Authority’s administrative
appeals and their funding were ultra vires. Finally, the court
also noted that, if there was a conflict between the Charter Law
and the MCUAL (applied as a general law in Bergen County under
N.J.S.A. 40:41A-25), the MCUAL governs.2
2 While the matter was pending before the trial court, the Local
Finance Board reversed the Director of the Division of Local
Government Services, finding that they did not have jurisdiction
over the matter once the prerogative writs complaint was filed.
That ruling was not appealed. Therefore, we do not address it.
9
Defendants appealed. On August 1, 2012, while the appeal
was pending and in light of the trial court’s finding that the
incumbent commissioners were entitled to receive an annual
stipend and health care benefits, the Bergen County Board of
Freeholders passed a resolution terminating all stipends and
benefits for commissioners appointed after April 18, 2012. That
resolution is not challenged in the present action.
The Appellate Division affirmed in part and reversed in
part.
First, the panel held that the County Executive “exceeded
the bounds of the authority conferred upon her by statute when
she terminated the commissioners” and thereby affirmed the trial
court’s judgment on the termination issue. Noting that N.J.S.A.
40:41A-37(c) allows a County Executive “to remove an official in
the unclassified service of the county -- and there is no
dispute that the authority’s commissioners are in the
unclassified service,” the panel reasoned that the County
Executive must have unilateral appointment power over the
commissioners in order to exercise unilateral removal power.
Because the County Executive did not have the power to appoint
the Authority’s commissioners without the advice and consent of
the board of freeholders, the panel determined that she did not
have the power to remove the commissioners without the Board’s
involvement. And, equally important, the panel pointed to
10
N.J.S.A. 40:14B-16 as setting forth the bases for which a
commissioner could be removed. Pursuant to that statute, a
commissioner must be provided with a copy of the charges and
must be provided an opportunity to be heard by the governing
body, ibid., which, under the county executive form of
government, the panel explained citing N.J.S.A. 40:41A-32(b), is
comprised of the county executive and the board of freeholders.
The County Executive’s actions were determined to be ultra vires
for failing to follow that process.
Second, the panel held that the County Executive could veto
the portion of the Authority’s meeting minutes that submitted a
2012 Authority budget that included provision for the
commissioners’ stipend and health care benefits, thus reversing
the trial court’s judgment on those issues. According to the
panel, the Legislature gave the County Executive, through
N.J.S.A. 40:41A-37(h), the power to veto any action taken by a
county utilities authority and placed no limit on the matters
that could be vetoed. In response to the Authority’s argument
that the 1979 freeholder resolution authorized an annual stipend
of $5000 that would be awarded to succeeding commissioners
indefinitely, the panel read the resolution as “authoriz[ing]
the annual stipend of $5,000 to only those commissioners
identified in the resolution, none of whom [were] still in
office.” The panel also noted that the freeholders never passed
11
a resolution authorizing health care benefits for the
commissioners, as would be required by N.J.S.A. 40:14B-17
according to the panel.
In addressing the compensation and health benefits issue,
the panel also relied on N.J.S.A. 40:41A-26. The panel reasoned
that Charter Law counties like Bergen County are governed by the
Charter Law’s provisions, see N.J.S.A. 40:41A-25, and also are
subject to “general law,” see ibid., as that term is defined
under N.J.S.A. 40:41A-26. The panel determined that general law
such as the MCUAL applies when such law is not inconsistent with
the Charter Law, and here the panel declared the Charter Law
provisions paramount and controlling over MCUAL general law
provisions regarding reduction of the commissioners’
compensation through the County Executive’s exercise of her veto
power.
Finally, we note, for completeness, that the appellate
panel stated that the Authority had a constitutional right to
appeal the County Executive’s veto of Authority minutes to both
the Director and the Local Finance Board within DCA and,
consequently, to expend funds to finance an appeal. However,
the panel identified that issue on appeal to be moot because the
panel concluded that the County Executive could veto other
portions of the Authority’s minutes that dealt with the payment
of the commissioners’ annual stipends and benefits. The issue
12
of the appropriateness of using veto authority in such manner --
to block the Authority’s right to appeal vetoed action within
DCA administrative channels -- is not before us as the parties
are not pursuing the issue before this Court.
The Authority filed a petition for certification with this
Court and defendants filed a cross-petition. The Authority also
filed an emergent motion for stay of relief pursuant to Rule
2:9-8. A temporary stay of the termination of the
commissioners’ health care benefits was put in place on October
24, 2014. The full Court thereafter denied the Authority’s
motion for a stay on November 18, 2014.
We granted the Authority’s petition as well as defendants’
cross-petition. 220 N.J. 573 (2015).
III.
In the petition and cross-petition for certification filed
in this matter, the parties raise essentially the same issues
but from different perspectives. Common to each, we are asked
to resolve (1) whether the County Executive had the authority to
order the removal of the commissioners and whether the manner of
their removal comported with law; and (2) whether by use of her
veto power the County Executive could eliminate the Authority’s
provision of (a) the $5000 stipend paid to commissioners since
1979, and (b) the health benefits provided to the commissioners
in more recent years. The parties present differing arguments
13
in approaching those issues but, at bottom, those are the issues
to be resolved. Their arguments track those presented and
addressed by the trial court and Appellate Division, as
discussed above.
IV.
A.
The dispute in this matter is one involving the proper
interpretation of two statutory schemes that contain provisions
touching on the controversies that erupted in Bergen County.
The goal in cases of statutory construction is simple. It is
the court’s duty to seek and give effect to the Legislature’s
intent. See Brooks v. Odom, 150 N.J. 395, 401 (1997).
When interpreting multiple statutes touching upon the same
subject, the goal is the same but with this added component: We
must attempt to harmonize the provisions of all statutes that
the Legislature has enacted affecting the subjects involved.
Town of Kearny v. Brandt, 214 N.J. 76, 98 (2013) (citing Saint
Peter’s Univ. Hosp. v. Lacy, 185 N.J. 1, 14-15 (2005)). Indeed,
this Court has recognized that
[t]he Legislature is presumed to be familiar
with its own enactments, with judicial
declarations relating to them, and to have
passed or preserved cognate laws with the
intention that they be construed to serve a
useful and consistent purpose. And the courts
have the duty of reconciling them so as to
give effect to both expressions of the
lawmakers’ will.
14
[State v. Federanko, 26 N.J. 119, 129-30
(1958) (emphasis added) (citations omitted).]
To that end, “[s]tatutes that deal with the same matter or
subject should be read in pari materia and construed together as
a ‘unitary and harmonious whole.’” Saint Peter’s Univ. Hosp.,
supra, 185 N.J. at 14-15 (quotation marks and citation omitted).
That is our paramount concern in the present matter for we
presume that the Legislature intended for its two statutory
schemes -- the Charter Law and the MCUAL -- to generally work
harmoniously, not in conflict with one another.
Intertwined in the parties’ arguments are countering
positions over how to interpret N.J.S.A. 40:41A-26. Because
Bergen County has a county executive form of government, under
N.J.S.A. 40:41A-25, it is “governed by the plan adopted, by the
provisions of this law applicable to all optional plans, and by
all general laws.” The Charter Law defines “general law” as one
that:
a. Is not inconsistent with this act; and
b. Is by its terms applicable to or available
to all counties, or;
c. Is applicable to all counties or to any
category or class of counties, and deals with
one or more of the following subjects: the
administration of the judicial system,
education, elections, health, county public
authorities, taxation, and finance, and
welfare.
15
[N.J.S.A. 40:41A-26.]
Indeed, panels of the Appellate Division have wrestled with how
subsection (a) applies with (b) and (c). See In re Salaries for
Prob. Officers of Hudson Cty., 158 N.J. Super. 363, 367 (App.
Div.), certif. denied, 78 N.J. 339 (1978); Amato v. Bd. of
Chosen Freeholders of the Cty. of Essex, 240 N.J. Super. 313,
316-17 (App. Div. 1990). This case does not require us to
resolve that open question because we fail to see direct
inconsistency between the MCUAL and the Charter Law on the
issues before us. Rather, we find that the statutes can, and
should, be reconciled and applied in a harmonious manner that
fulfills the legislative intent underlying each.
B.
We consider first the extensive authority of the County
Executive over the administration of county government and the
tools placed at her disposal to carry out that responsibility.
Generally described, the county executive is vested with
the authority to “supervise, direct and control all county
administrative departments.” N.J.S.A. 40:41A-37(a). As
previously noted, as part of specifically enumerated powers, the
county executive is authorized to appoint the heads of county
departments and divisions and, among others, “the members of all
county boards, commissions and authorities,” subject to the
advice and consent of the board of freeholders. N.J.S.A.
16
40:41A-37(b); see N.J.S.A. 40:41A-41(a) (conferring advice and
consent authority on board).
Also, pursuant to N.J.S.A. 40:41A-37(c), the county
executive has general removal and suspension power over
individuals in the unclassified service, “over whose office the
county executive has power of appointment,” subject to the
provisions of N.J.S.A. 40:41A-87(b); see also N.J.S.A. 40:41A-
37(d) (authorizing county executive to retain or delegate
appointment and removal power over departmental employees,
subject to civil service or administrative code requirements
specifying otherwise).
The removal power is not unilateral. Under N.J.S.A.
40:41A-87(b), a provision generally applicable to all optional
forms of county government, the board of freeholders has
authority, after notice and upon action within a limited period
of time, to short-circuit the proposed removal, or suspension
for a definite term, of an employee by passing, by two-thirds
vote, a resolution of disapproval, which voids the termination
or suspension prior to a public hearing. Otherwise, the
employee receives a public hearing, at the conclusion of which
the board retains the ability to veto the county executive’s
disciplinary action. Ibid. A notable exception is provided for
the county administrator, who serves at the exclusive discretion
of the county executive. See N.J.S.A. 40:41A-42 (granting board
17
advice and consent over county administrator but withholding
from board ability to prevent administrator’s suspension or
dismissal by passage of resolution of disapproval); cf. N.J.S.A.
40:41A-41(d) (providing similarly that counsel to board serves
at board’s pleasure). Thus, where the Legislature intended to
confer on the county executive unilateral removal authority, it
knew how to do so.
In addition to appointment power over members of county
boards, commissions, and authorities, among other high-ranking
county officials, and the described removal powers, the county
executive also has other powers in connection with county
functions that are pertinent in this appeal. The county
executive is granted veto power, which can be used in respect of
ordinances passed by the board of freeholders, N.J.S.A. 40:41A-
37(g); cf. N.J.S.A. 40:41A-38(p) (allowing veto in limited
setting to board resolutions of consent to municipal ordinances
or resolutions regulating traffic or parking on county roads),
and such veto power can be exercised in respect of all or a part
of the minutes of a county authority, N.J.S.A. 40:41A-37(h).
Regarding the latter, the county executive’s veto of a county
authority’s minutes may be overridden by majority vote of the
full membership of the board of freeholders within ten days of
receipt of the veto action. Ibid.
18
On the other hand, the MCUAL speaks directly to the
Authority’s commissioners’ right to hold office and protections
during their term of office -- protections to which the
commissioners are entitled before removal or reduction in
compensation may occur.
Specifically, N.J.S.A. 40:14B-16 provides that
[e]ach member of a municipal authority shall
hold office for the term for which he was
appointed and until his successor has been
appointed and has qualified. A member of a
municipal authority may be removed only by the
governing body by which he was appointed and
only for inefficiency or neglect of duty or
misconduct in office and after he shall have
been given a copy of the charges against him
and, not sooner than 10 days thereafter, had
opportunity in person or by counsel to be
heard thereon by such governing body.
The MCUAL also authorizes, as noted, the provision of
compensation to commissioners, subject to any limitations
established in the original resolution reorganizing a county
sewerage authority as a municipal authority or as subsequently
amended by like resolution, and provides that compensation may
not be reduced during a member’s term of office except with
consent. See N.J.S.A. 40:14B-17.
With that statutory background, we turn to the
interpretative task at hand, beginning with review of the County
Executive’s action ordering the removal of the seven
commissioners.
19
V.
Our examination of the County Executive’s authority under
the Charter Law and the MCUAL provisions addressing utilities
authority commissioners’ terms of office and the manner of
removal of such office-holding commissioners does not reveal a
conflict between the two statutory schemes. There certainly is
not an irreconcilable conflict that prevents this Court from
fulfilling its duty to seek to harmonize these two statutory
schemes. See Saint Peter’s Univ. Hosp., supra, 185 N.J. at 14-
15.
N.J.S.A. 40:14B-16 establishes that the commissioners hold
their office for the length of their term. However, the MCUAL
recognizes limited, for-cause circumstances for which a member
of a utilities authority may be ousted from office. The
Legislature clearly recognized circumstances calling for removal
of a commissioner short of the completion of one’s term and the
appointment of a successor, and it established a safety valve by
providing a mechanism to accomplish that eventuality. A
utilities authority commissioner “may be removed . . . by the
governing body by which he was appointed . . . for inefficiency
or neglect of duty or misconduct in office.” Ibid.
Importantly, the MCUAL sets out notice and hearing processes to
be followed to accomplish such a removal, providing expressly
that a commissioner may be removed only after he has been “given
20
a copy of the charges against him” and after he has been given
an opportunity to respond. Ibid. That statutory language
recognizes a protected right conferred on the appointed office
holder to retain the office for a specific term, see ibid.
(creating right to hold office), and it is consonant with well-
established law governing due process rights attaching to such
property interests, cf. Nicoletta v. N. Jersey Dist. Water
Supply Comm’n, 77 N.J. 145, 150-51 (1978); see also Siss v. Cty.
of Passaic, 75 F. Supp. 2d 325, 341 (D.N.J. 1999) (“Under New
Jersey law, public employees may be discharged with or without
cause, unless their positions are otherwise protected, for
example, by . . . a fixed term.”), aff’d, 234 F.3d 1265 (3d Cir.
2000).
That protection guaranteed to commissioners under the MCUAL
does not conflict with the scheme for removal of persons under
the Charter Law. The Charter Law speaks clearly on the power of
appointment to county authorities under the county executive
plan of government: “With the advice and consent of the board,
[the Executive] shall appoint . . . the members of all county
boards, commissions and authorities.” N.J.S.A. 40:41A-37(b).
By that language, the County Executive is the appointing
authority for the members of the utilities authority, but her
21
power to remove is not unilateral.3 The analysis must return to
the statutorily designated roles for both the county executive
and the board under the county executive plan set forth in the
Charter Law.
When it comes to removal of even “unclassified persons”4 in
county service, there is a legislative role to be played by the
board in the checks and balances created under the county
executive form of government. The Charter Law allows the county
executive to initiate removal of unclassified employees, but
that authority cannot be exercised without affording such
persons notice of the contemplated action and a public hearing
if desired. And the Charter Law provides an important role for
3 In this respect, we disapprove of the Appellate Division’s
statement that whenever advice and consent is required for
appointment to a position, the body in which such advice and
consent is reposed also must be involved in the removal of the
appointed person from office. Our analysis relies on a
statutory role provided to the board in reaching our result on
the proper procedures to be followed to ensure a valid removal.
We do not endorse the panel’s contrary analysis.
4 Persons referenced to be “in the unclassified service” are
persons who do not enjoy the protections of those in the
classified status. Compare N.J.S.A. 11A:3-2 (career service),
with N.J.S.A. 11A:3-4 (State unclassified service), and N.J.S.A.
11A:3-5 (political subdivision unclassified service). Career
service employees are granted the right to a hearing and other
procedural and substantive protections prior to imposition of
certain discipline and removal. See N.J.S.A. 11A:2-6, -13.
Persons in unclassified service do not enjoy corresponding civil
service protections. The Charter Law acknowledges the county’s
obligation to adhere to civil service requirements in respect of
removal, where applicable. See N.J.S.A. 40:41A-37(d).
22
the board to play at the outset of such disciplinary action, by
authorizing the board to issue a resolution to stop the
processing of charges against an unclassified employee, and to
reject the termination or suspension for a definite period after
a public hearing is concluded. That checking process under the
Charter Law prevents the county executive from taking unilateral
action and establishes a hearing process for unclassified
individuals, who enjoy the statutory procedural protections of
prior notice of the proposed action and a public hearing
opportunity to answer the proposed action and protect
reputational interests. Ultimately, the board can decline to
impose discipline initiated by the county executive.
Here we have office holders, protected from removal except
for certain cause bases, entitled to serve out their terms and
to continue in office until their successor is appointed. The
for-cause protection from removal of N.J.S.A. 40:14B-16 is not
stripped from them by virtue of the authority conferred on a
county executive under N.J.S.A. 40:41A-37(c) for lesser-
protected employees. Such an interpretation of N.J.S.A. 40:41A-
37(c) would expand the authority conferred on the county
executive by the Legislature, an action that we are not
empowered to take.
More importantly, the County Executive here did not follow
the very procedure that the Charter Law requires, if it were to
23
be the sole statute to be complied with under these
circumstances, and it is not. The County Executive did not
provide to the commissioners notice of the proposed action or
opportunity for a public hearing, as N.J.S.A. 40:41A-37(c)
requires. She sought to immediately and unilaterally terminate
them. That she could not do. Compare N.J.S.A. 40:41A-87(b)
(granting board role in termination and providing officer or
employee with notice right and opportunity for public hearing),
with N.J.S.A. 40:41A-42 (granting county executive unilateral
authority to terminate county administrator); see also Hudson
Cty. Bd. of Chosen Freeholders v. Clark, 203 N.J. Super. 102,
106-07 (App. Div.) (recognizing same), certif. denied, 102 N.J.
340 (1985). In sum, the County Executive’s action ordering the
immediate termination of the seven Authority commissioners was
not conducted in accordance with her authority under N.J.S.A.
40:41A-37(c), and her unilateral action was contrary to and in
violation of N.J.S.A. 40:14B-16, with which she had to comply.
Finally, we note another reason for finding no conflict
between the Charter Law and the MCUAL with respect to removal of
commissioners. There are several provisions under the Charter
Law that reference the MCUAL. The Charter Law specifically gave
counties operating under the optional forms of government the
ability to reorganize, alter, or abolish county agencies, so
long as required services continued to be provided. But the
24
statute carved out an exception for governmental entities
established under the MCUAL:
All county offices, boards, commissions and
authorities authorized or established by
statute, other than an authority organized
under the “municipal and county utilities
authorities law,” P.L.1957, c.183 (C.40:14B-1
et seq.), those boards and offices which are
subject to the provisions of subsection b. of
section 125 of P.L.1972, c.154 (C.40:41A-125),
and other than educational institutions
authorized or established pursuant to Title
18A of the New Jersey Statutes, shall be
considered to be county agencies for the
purposes of this section.
[N.J.S.A. 40:41A-30 (emphasis added).]
The Sponsor’s Statement to the 1997 amendment that added the
language exempting utilities authorities provided as follows:
This bill would prohibit the board of
freeholders of a county organized under the
“Optional County Charter Law,” P.L. 1972, c.
154 (C. 40:41A-1 et seq.), from purging the
members of a county utilities authority
through its power to “reorganize” an authority
pursuant to section 30 of P.L. 1972, c. 154
(C. 40:41A-30). The “municipal and county
utilities authorities law,” P.L. 1957, c. 183
(C. 40:14B-1 et seq.), contains sufficient
procedures for dissolving an authority or
removing authority members for inefficiency,
neglect of duty or misconduct in office that
a freeholder board should not need to resort
to a vague “reorganization” power that has a
great potential for political abuse.
[Sponsor’s Statement to S. No. 1891 (1997).]
We find that statutory section and history supportive of our
conclusion.
25
Accordingly, we affirm the judgment of the Appellate
Division, and that of the trial court, that declared the County
Executive’s termination of the seven commissioners to be ultra
vires and void.
VI.
With respect to the Authority’s challenge to the County
Executive’s exercise of her veto power over the Authority’s
minutes approving the inclusion of the $5000 stipend paid as
compensation to Authority commissioners, as well as inclusion of
funds for the provision of health benefits to the commissioners,
we take each issue in turn.
A.
Having determined that commissioners have protected rights
under the MCUAL that must be respected if harmonization is
possible between that Act and the Charter Law, we turn to the
stipend question. N.J.S.A. 40:14B-17 provides utilities
commissioners absolute protection from reduction in
compensation, unless they consent to a reduction, during the
term of their office. Under N.J.S.A. 40:14B-17, the
compensation to be paid to commissioners was placed in the hands
of the governing body when the Authority was reorganized. The
board of freeholders held the power to set compensation in the
reorganizing resolution that created the modern Authority
existing in Bergen County and to make the compensation subject
26
to annual or other limitations established in that original 1979
resolution.
Although the county executive has broad authority to
exercise her veto power over Authority minutes on a wide range
of substantive topics, see N.J.S.A. 40:41A-37(h), that power
must be harmonized with other more specific protective
legislation, such as N.J.S.A. 40:14B-17. Hence, our analysis
depends on an interpretation of the 1979 resolution when the
board of freeholders exercised the authority granted to it under
N.J.S.A. 40:14B-17.
The resolution is not a model of clarity for it is brief in
structure yet encompasses the accomplishment of many tasks
called for in an original reorganizing resolution. As noted
previously, the resolution authorized the reorganization, see
N.J.S.A. 40:14B-4(a), established the required staggered terms
for reappointed members of the previous sewer authority, who
were named newly appointed members of the seven-member utilities
authority, see N.J.S.A. 40:14B-4(a), (b)(1), and -6(b), and
established a $5000 annual stipend for the first-appointed named
commissioners of the new reorganized Authority.
The County Executive argues, and the Appellate Division
determined, that the language in the 1979 resolution merely
authorized $5000 stipends for the named persons in the
resolution. That is one possible reading. However, it does not
27
take into account that the resolution had to name individually
the reappointed commissioners from the predecessor sewer
authority and that the resolution had to identify the specific
staggering of terms for the reappointed commissioners to the
newly created entity under the directions provided by statute.
In that context, the board had the opportunity to provide for
compensation to be paid to the commissioners and it did so,
referencing an annual $5000 stipend. It did not add any
specific limitation that gives the direction that the County
Executive, and the Appellate Division, read into the language.
The language is ambiguous. Yet, we have the benefit of
decades of practice that treated the $5000 stipend as the
compensation that came with appointment to the position of
commissioner. It is unreasonable to ignore that past practice.
It is unreasonable to ignore that the Board held in its hands
the opportunity to alter the compensation practice being
uniformly followed by passing a subsequent resolution. See
N.J.S.A. 40:14B-17. It did not do so until after this dispute
between the County Executive and the Authority arose. In light
of the totality of circumstances, we are loath to interpret the
ambiguous wording of the 1979 resolution as not having set an
annual compensation (the $5000 stipend) that would be paid to
commissioners upon appointment to a term on the Authority. We
so hold and therefore reverse the judgment of the Appellate
28
Division. The County Executive’s use of the veto power to
diminish the compensation being paid to the Authority
commissioners violated N.J.S.A. 40:14B-17 and must be declared
void.
B.
We do not reach the same conclusion in respect of health
benefits to the commissioners. Applying the same analysis as
used in respect of the stipend, we find affirmance of the County
Executive’s use of her veto power to be straightforward.
It is apparent from the record that the Board of
Freeholders never authorized by resolution the provision of
health benefits to Authority commissioners as part of any
compensation permitted under N.J.S.A. 40:14B-17. To the extent
that the Authority commissioners took it upon themselves to
authorize those benefits for themselves and to include provision
for the cost of those benefits within the overall budgetary line
that encompassed benefits provided to Authority employees, that
action was subject to review by the County Executive during her
scrutiny of the minutes of the Authority’s meeting that approved
such budget action. Her supervisory authority to review and
reject Authority action through her veto power under N.J.S.A.
40:41A-37(h) is broad and easily encompasses authority to
disapprove such administrative action affecting the cost of
services by the Authority. The County Executive’s determination
29
to veto that portion of the minutes, and thereby to prevent the
provision of health benefits to the commissioners, was well
within her prerogative.
We therefore affirm the judgment of the Appellate Division
that affirmed that use of the County Executive’s veto authority.
VI.
The judgment of the Appellate Division is affirmed in part
and reversed in part.
CHIEF JUSTICE RABNER, JUSTICES ALBIN and FERNANDEZ-VINA,
and JUDGE CUFF (temporarily assigned) join in JUSTICE
LaVECCHIA’s opinion. JUSTICE PATTERSON and JUSTICE SOLOMON each
filed separate opinions, concurring in part and dissenting in
part.
30
SUPREME COURT OF NEW JERSEY
A-36/37 September Term 2014
075060
NORTHWEST BERGEN COUNTY
UTILITIES AUTHORITY,
Plaintiff-Appellant
and Cross-Respondent,
v.
KATHLEEN A. DONOVAN, COUNTY
EXECUTIVE OF THE COUNTY OF
BERGEN, and COUNTY OF BERGEN,
Defendants-Respondents
and Cross-Appellants,
and
BERGEN COUNTY BOARD OF CHOSEN
FREEHOLDERS,
Defendant.
JUSTICE SOLOMON, concurring in part and dissenting in part.
The people of Bergen County adopted, by a 1985 referendum,
the county executive form of government and, through a clear and
unambiguous mandate, conferred upon their County Executive broad
authority to manage county affairs. I join the majority’s
holding that the County Executive had the authority to veto the
provision of health benefits to the commissioners of the
Northwest Bergen County Utilities Authority (the Authority).
However, I cannot agree with the majority’s conclusions that the
County Executive did not have the statutory authority under the
1
Optional County Charter Law (the Charter Law), N.J.S.A. 40:41A-
31 to -41, to veto compensation for commissioners and to remove
them from office. I am compelled to dissent because “[i]t is
not our function to rewrite a plainly written statute or to
presume that the Legislature meant something other than what it
conveyed in its clearly expressed language.” Murray v.
Plainfield Rescue Squad, 210 N.J. 581, 592 (2012) (citing
DiProspero v. Penn, 183 N.J. 477, 492 (2005)).
I.
In 1972, the Charter Law was passed by the Legislature and
signed by the Governor, enabling voters to choose the form of
county government they believe will be most efficient and cost
effective. See N.J.S.A. 40:41A-26 (“The intent of this act is
to enable a county that has adopted a charter pursuant to this
act to cause any duty that has been mandated to it by the
Legislature to be performed in the most efficient and
expeditious manner[.]”).
The people of Bergen County specifically chose to have
their county “governed by [the county executive plan], by the
provisions of [the Charter Law] applicable to all optional
plans, and by all general laws[.]” N.J.S.A. 40:41A-25.
Recognizing that some of the newly adopted provisions under the
Charter Law clashed with general laws, the Legislature directed
2
that the Charter Law prevail over inconsistent provisions of a
general law:
For the purposes of this act, a “general law”
shall be deemed to be such law or part thereof,
heretofore or hereafter enacted, that:
a. Is not inconsistent with this act; and
b. Is by its terms applicable to or
available to all counties, or;
c. Is applicable to all counties or to any
category or class of counties, and deals
with one or more of the following
subjects: the administration of the
judicial system, education, elections,
health, county public authorities,
taxation, and finance, and welfare.
[N.J.S.A. 40:41A-26 (emphasis added).]
Therefore, provisions of the Municipal and County Utilities
Authorities Law, N.J.S.A. 40:14B-1 to -78 (MCUAL), as a general
law, must yield if inconsistent with provisions of the Charter
Law. At issue here are the differences between the MCUAL and
the Charter Law regarding the scope of the County Executive’s
veto and removal power.
II.
A.
Beginning with the County Executive’s veto powers, under
the Charter Law, the County Executive has discretion to veto
within ten days of delivery “all or part of the minutes of every
meeting of a county authority organized pursuant to the
3
provisions of [the MCUAL].” N.J.S.A. 40:41A-37(h). By
deliberately choosing the unambiguous language “all . . . of the
minutes of every meeting,” the Legislature unequivocally
provided the County Executive with broad veto power. See
O’Connell v. State, 171 N.J. 484, 488 (2002) (“Where a statute
is clear and unambiguous on its face and admits of only one
interpretation, a court must infer the Legislature’s intent from
the statute’s plain meaning.” (citing V.C. v. M.J.B., 163 N.J.
200, 217, cert. denied, 531 U.S. 926, 121 S. Ct. 302, 148 L. Ed.
2d 243 (2000))).
The majority cites N.J.S.A. 40:14B-17 of the MCUAL as a
limitation on the County Executive’s veto power. That section
allows the Board of Freeholders to pass a “resolution, ordinance
or parallel ordinances for the creation of a municipal authority
or for the reorganization of a sewerage authority as a municipal
authority,” and to set forth the level of compensation for
commissioners “within the limitations stated in such resolution,
ordinance or parallel ordinances.” N.J.S.A. 40:14B-17 further
provides that “[t]he said provisions or limitations stated in
any such resolution, ordinance or parallel ordinances may be
amended or added by subsequent resolution, ordinance or parallel
ordinances, as the case may be,” but may not “reduc[e] any such
[compensation] . . . as to any member of the municipal authority
4
then in office except upon the written consent of such member.”
N.J.S.A. 40:14B-17 (emphasis added).
My colleagues claim that N.J.S.A. 40:41A-37(h) of the
Charter Law, describing the County Executive’s veto power,
conflicts with N.J.S.A. 40:14B-17 of the MCUAL, but ignore the
Legislature’s 2010 amendment to the MCUAL which confirmed the
County Executive’s broad powers to veto any action taken by the
Authority. L. 2010, c. 52, § 3 (codified at N.J.S.A. 40:14B-
14(b)). Indeed, N.J.S.A. 40:14B-14(b) of the MCUAL specifically
provides that the minutes of every authority meeting are subject
to veto by the County Executive:
The minutes of every meeting of an authority
created by a county organized pursuant to the
provisions of the “county executive plan” of
the “Optional County Charter Law,” P.L.1972,
c.154 (C.40:41A-1 et seq.)5 shall be delivered
by the end of the fifth business day following
the meeting, except as otherwise provided in
subsection d. of this section, by and under
the certification of the secretary of the
authority to the county executive. Except as
otherwise provided in subsection d. of this
section, no action taken at a meeting by the
members of an authority shall be effective
1 Although the Authority was “created” before Bergen County
adopted the county executive plan, the Sponsor’s unqualified
Statement to the bill evidences that N.J.S.A. 40:14B-14(b) is
applicable to all counties “organized” under the “Optional
County Charter Law”: “This Bill gives the county executives in
counties organized pursuant to the provisions of the ‘Optional
County Charter Law’ . . . the power to review and approve or
veto, within 10 days of delivery, all or part of the minutes of
every meeting of . . . any county utilities organized pursuant
to the provisions of [the MCUAL].” Sponsor’s Statement to
Assembly No. 162 (1995).
5
until approved by the county executive or
until 10 days after the copy of the minutes
shall have been delivered. If, within the 10-
day period, the county executive returns to
the authority and to the board of freeholders
the copy of the minutes with a veto of any
action taken by the authority or any member
thereof at a meeting, together with a written
explanation of the reasons for his veto of the
action, that action shall be of no effect
unless the board of freeholders overrides the
veto of the action by a majority vote of its
full membership within 10 days of the receipt
of the veto action. The county executive may
approve all or any part of an action taken at
a meeting prior to the expiration of the 10-
day period. If the county executive takes no
action with respect to the minutes within the
10-day period, the minutes shall be deemed to
be approved. The veto powers accorded under
this subsection shall not affect in any way
the covenants contained in the bond indentures
of the authority, or any collective bargaining
agreement or binding arbitration decisions
affecting employees of the authority.
[(Emphasis added).]
Nevertheless, the majority perceives a conflict between the
Charter Law and MCUAL, and concludes that the Charter Law “must
be harmonized with other more specific protective legislation
such as N.J.S.A. 40:14B-17 [of the MCUAL],” ante at __ (slip op.
at 27), ignoring the Legislature’s 2010 amendment to the MCUAL
reflected in N.J.S.A. 40:14B-14(b). Even if an inconsistency
does exist, there is no basis for the majority to disobey our
Legislature’s directive that the Charter Law prevail over
inconsistent provisions of a general law, such as the MCUAL.
N.J.S.A. 40:41A-26.
6
Furthermore, if it is assumed that the unambiguous language
of the Charter Law does not resolve whether the County Executive
possessed the power to veto authority minutes providing salaries
to commissioners, it remains that: (1) the Legislature’s 2010
amendment to the MCUAL confirmed the County Executive’s broad
powers to veto any action taken by the Authority, N.J.S.A.
40:14B-14(b);6 (2) the Board of Freeholders passed a 1979
Resolution creating the Authority and establishing “annual”
compensation only for the commissioners named in the Resolution;
(3) the language of the Resolution specifically states that the
stipends to the named commissioners terminated at the end of
their respective terms; and (4) the Board did not pass a new
resolution, ordinance, or parallel ordinance providing
compensation for subsequently appointed Authority commissioners
pursuant to N.J.S.A. 40:14B-14.
Still, the majority attempts to justify its conclusions
regarding the County Executive’s power to veto stipends for
commissioners by noting that prior County Executives never
vetoed the Authority’s thirty-year-long practice of paying
stipends to its commissioners. The majority also claims the
Board of Freeholders condoned the Authority’s practice by not
passing a subsequent resolution to alter that practice. As
2 The majority agrees that the County Executive’s veto is valid
as to health benefits provided to commissioners.
7
noted above, however, N.J.S.A. 40:14B-17 of the MCUAL places an
affirmative obligation on the Board of Freeholders to pass a
resolution, ordinance, or parallel ordinance outlining
compensation for Authority commissioners. Plainly, the
compensation scheme for the inaugural members of the Authority
was to cease when their terms ended -– there is no other
“possible reading.” Therefore, subsequent commissioners’
compensation could not have enjoyed the purported protection of
the MCUAL.
B.
The majority’s decision to restrict the County Executive’s
removal power is similarly mistaken. N.J.S.A. 40:41A-37(c) of
the Charter Law provides that the County Executive “[m]ay, at
his discretion, remove or suspend any official in the
unclassified service of the county over whose office the county
executive has power of appointment in accordance with the
provisions of section [N.J.S.A. 40:41-]87(b).” Since it is
undisputed that “any official in the ‘unclassified service’” of
the county includes the commissioners of the Authority,7 and
3 Under N.J.A.C. 4A:3-1.3(a)(4), an official is in “unclassified
service” when “[a] specific statute provides that incumbents in
the title serve for a fixed term or at the pleasure of the
appointing authority[.]” The Authority commissioners here are
officials in the “unclassified service” of the county because
they serve at the pleasure of the County Executive. See
N.J.S.A. 40:41A-37(b) (granting County Executive authority to
appoint “members of . . . authorities”); see also N.J.S.A.
8
since the County Executive has the authority to appoint members
of county commissions subject to the Freeholder Board’s advice
and consent, N.J.S.A. 40:41A-37(b),8 the County Executive has
exclusive and discretionary power to remove commissioners of the
Authority. N.J.S.A. 40:41A-37(c). As stated previously, this
provision of the Charter Law trumps any inconsistency found in
the MCUAL regarding removal of commissioners. N.J.S.A. 40:41A-
26.
Nonetheless, if we, once again, consider the two statutes
in an effort to “harmonize” them, the MCUAL provides that the
“governing body”9 may remove “a member of a municipal authority”
for cause only:
A member of a municipal authority may be
removed only by the governing body by which he
was appointed and only for inefficiency or
neglect of duty or misconduct in office and
after he shall have been given a copy of the
charges against him and, not sooner than 10
days thereafter, had opportunity in person or
by counsel to be heard thereon by such
governing body.
40:41A-37(c) (granting County Executive discretionary authority
to remove Authority commissioners).
4 The majority concedes that the County Executive has the
appointment power over commission members. See also N.J.S.A.
40:41A-37(b) (stating that the County Executive, “[w]ith the
advice and consent of the board, shall appoint . . . the members
of all county boards, commissions and authorities”).
5 Under both the Charter Law and the MCUAL, “governing body” is
defined as both the Board of Freeholders and the County
Executive. N.J.S.A. 40:14B-3(3); N.J.S.A. 40:41A-32(b).
9
[N.J.S.A. 40:14B-16.]
The majority relies upon the legislative history of N.J.S.A.
40:41A-30 to argue that N.J.S.A. 40:41A-37(c) of the Charter Law
and N.J.S.A. 40:14B-16 of the MCUAL regarding removal of
commissioners are not inconsistent. However, the Sponsor’s
Statement for N.J.S.A. 40:41A-30 explains that N.J.S.A. 40:14B-
16 applies when the Board of Freeholders seeks to purge members
of a utilities authority by using its power to reorganize.
Sponsor’s Statement to Senate Bill No. 1891 (1997). Here, the
Authority is not being purged through reorganization10 by the
Board of Freeholders; seven of the nine commissioners are being
terminated by the County Executive in the exercise of her
authority under N.J.S.A. 40:41A-37(c) of the Charter Law. While
both the MCUAL and the Charter Law speak to the removal of
members of the Authority, the MCUAL’s allowance of removal of a
commissioner only for cause cannot be reconciled with the broad,
discretionary authority afforded to the County Executive under
the Charter Law and must yield to N.J.S.A. 40:41A-26.
I concede that the County Executive’s removal power under
the Charter Law is subject to the due process requirements of
N.J.S.A. 40:41A-87(b) and that the County Executive’s authority
6 There was no hearing conducted and no record established in
this regard.
10
to terminate the commissioners “effective immediately” is not
found in the Charter Law:
a. [T]he board may, by a resolution of
disapproval, adopted by a two-thirds vote of
the whole number of the board, prevent the
dismissal of certain employees under
conditions as set forth in subsection b. of
this section.
b. Suspensions will take effect immediately
upon personal service of notice setting forth
the order of suspension or dismissal.
Dismissal or suspension for a definite term
shall occur automatically in 30 calendar days
from receipt of notice. But, if the officer
or employee requests a public hearing on his
dismissal or suspension for a definite term,
no action beyond temporary suspension may be
taken until the individual to be suspended or
dismissed is given a public hearing not less
than 15 nor more than 30 days after personal
service of written notice of contemplated
action. A copy of such notice shall be filed
with the clerk to the board of freeholders
immediately upon service of notice to the
individual to be suspended or dismissed. In
the event that within 35 days of receiving
such notice, the board shall pass by a two-
thirds vote of the whole number of the board,
a resolution of disapproval, all proceedings
and any suspension or dismissal of the
individual shall be voided.
. . . .
If, however, the suspension or dismissal order
shall allege that the individual against whom
action is contemplated or pending has
committed a criminal act in the conduct of his
public trust, no resolution of the board shall
stay proceedings and the matter shall be
brought to a public hearing in the manner
prescribed above. If at that hearing probable
cause for prosecution is found, all evidence
11
shall immediately be forwarded to the county
prosecutor for further action.
[N.J.S.A. 40:41A-87(a), (b) (emphasis added).]
However, contrary to the majority’s conclusion that the
dismissed commissioners were denied their right to a public
hearing, N.J.S.A. 40:41A-87(b) requires a public hearing if
requested, or “the suspension or dismissal order . . . allege[s]
that the individual against whom action is contemplated or
pending has committed a criminal act in the conduct of his
public trust.” (Emphasis added). That is not the case here,
where the dismissals were not premised upon “a criminal act” by
commissioners in the conduct of their “public trust.”
Furthermore, all seven commissioners in this matter were
personally notified of the County Executive’s termination
decision by mail on April 16, 2012. Thereafter, no commissioner
sought relief from the County Executive’s action in accordance
with the appeals process provided by the Charter Law, N.J.S.A.
40:41A-87(b), which states that “[d]ismissal or suspension for a
definite term shall occur automatically in 30 calendar days”
unless the dismissed or suspended officer or employee requests a
public hearing after receipt of notice, or the Board of
Freeholders, by a two-thirds vote, vetoes the suspension or
removal before or after the hearing.
12
The dismissed commissioners never requested a public
hearing, and nothing in the record indicates that the
commissioners requested intervention by the Board of
Freeholders. Instead, the Authority -- not the dismissed
commissioners -- filed a complaint in lieu of prerogative writ
with the Superior Court seeking review of the County Executive’s
termination action. Therefore, the commissioners failed to
satisfy the procedural requirements of N.J.S.A. 40:41A-87 and,
hence, their termination was final thirty calendar days after
the commissioners received notice of their termination by mail
on April 16, 2012. Accordingly, the County Executive properly
exercised her statutory right to remove the seven commissioners
of the Authority.
III.
As the majority correctly points out, this Court has a duty
to “harmonize the provisions of all statutes that the
Legislature has enacted for implementation affecting the
subjects involved.” Ante at __ (slip op. at 14). However, that
duty does not permit this Court to ignore a clear legislative
directive. In light of the unambiguous command by the
Legislature, the MCUAL must give way to the Charter Law in cases
of conflict. There is no basis for the conclusion “that the
Legislature intended for its two statutory schemes -– the
Charter Law and the MCUAL -– to generally work harmoniously, not
13
in conflict with one another” and, therefore, I concur in part,
and dissent in part.
14
SUPREME COURT OF NEW JERSEY
A-36/37 September Term 2014
075060
NORTHWEST BERGEN COUNTY
UTILITIES AUTHORITY,
Plaintiff-Appellant
and Cross-Respondent,
v.
KATHLEEN A. DONOVAN, COUNTY
EXECUTIVE OF THE COUNTY OF
BERGEN, and COUNTY OF BERGEN,
Defendants-Respondents
and Cross-Appellants,
and
BERGEN COUNTY BOARD OF CHOSEN
FREEHOLDERS,
Defendant.
JUSTICE PATTERSON, concurring and dissenting.
I join the Court’s opinion insofar as it holds that
defendant Kathleen A. Donovan, County Executive of the County of
Bergen (County Executive), lacked the authority to remove the
commissioners of the Northwest Bergen County Utilities Authority
(Authority), under the applicable provisions of the Optional
County Charter Law, N.J.S.A. 40:41A-31 to -37, and the Municipal
and County Utilities Authorities Law, N.J.S.A. 40:14B-1 to -78.
See ante at ___ (slip op. at 20-26). I also join the Court’s
opinion to the extent that it holds that the County Executive
1
had the authority, pursuant to N.J.S.A. 40:41A-38(p), to reject
by veto the Authority commissioners’ authorization of health
benefits for themselves. See ante at ___ (slip op. at 29-30).
I respectfully disagree with the Court’s holding that the County
Executive lacked authority under N.J.S.A. 40:41A-38(p) to veto
the Authority’s minutes providing for the payment of salaries to
Authority commissioners. I join Justice Solomon’s concurring
and dissenting opinion with respect to that issue. See ante at
___ (slip op. at 3-8) (Solomon, J., concurring in part and
dissenting in part).
2