THOMAS MCKAY, ETC. VS. JOSEPH PRYOR (L-0039-16, WARREN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0097-16T2
THOMAS MCKAY, Mayor of the
Township of Lopatcong, County
of Warren, State of New Jersey,
Plaintiff-Appellant,
v.
JOSEPH PRYOR, Councilman; LOUIS
BELCARO, Councilman and MAUREEN
MCCABE, Councilwoman,
Defendants-Respondents,
and
MARGARET B. DILTS, Municipal Clerk;
MICHAEL B. LAVERY, Esq.; LAVERY,
SELVAGGI, ABROMITIS & COHEN and as
Successors in Interest to COURTER,
KOBERT and COHEN, PC,
Defendants.
_______________________________________
Submitted January 8, 2018 – Decided August 27, 2018
Before Judges Accurso and Vernoia.
On appeal from Superior Court of New Jersey,
Law Division, Warren County, Docket No.
L-0039-16.
Carter, Van Rensselaer and Caldwell, attorneys
for appellant (William J. Caldwell, on the
brief).
Bell & Shivas, PC, attorneys for respondents
(Joseph J. Bell and Brian C. Laskiewicz, on
the briefs).
PER CURIAM
Plaintiff Thomas McKay appeals from a July 22, 2016 Law
Division order granting summary judgment in favor of defendant
Lopatcong Township Councilmembers Joseph Pryor, Louis Belcaro, and
Maureen McCabe (the Council). On appeal, plaintiff asserts the
court erred in granting summary judgment in favor of the Council
because he had the exclusive authority under the Faulkner Act,
N.J.S.A. 40:69A-1 to -210, to make certain appointment and
budgetary decisions on behalf of the Township. We disagree, and
affirm.
I.
At the time relevant to this appeal, plaintiff was the duly-
elected Mayor of the Township of Lopatcong in Warren County, having
assumed office on January 1, 2015. Defendants Pryor, Belcaro and
McCabe were duly-elected Councilmembers. Plaintiff also named
Lopatcong's municipal attorney Michael B. Lavery, Lavery's law
firm, Lavery, Selvaggi, Abromitis & Cohen, and the Lopatcong
Municipal Clerk, Margaret B. Dilts, as defendants.
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On February 1, 2016, plaintiff filed a nine-count complaint
in lieu of prerogative writs and order to show cause, alleging
defendant Councilmembers violated their legislative duties and
"engaged in an unlawful, ultra vires pattern of actions designed
to unlawfully usurp the statutory authority of the Mayor." In
relevant part, plaintiff's allegations stem from various
appointments he made without the Council's advice and consent,
which the Council refused to accept, acknowledge or approve, and
his belief that he had exclusive authority over municipal
appointments and the municipal budget. Specifically, plaintiff
unilaterally appointed attorney Ryan Carey as the Township's
"labor counsel," and Robert S. Morrison as municipal auditor. In
his complaint and on appeal, plaintiff asserts that he "alone, has
the exclusive and lawful power of appointment," and has general
executive authority in the Township under N.J.S.A. 40:69A-121,
which provides that the Mayor exercises "[t]he executive power of
the municipality."
Plaintiff also alleged that the Council, in concert with the
municipal clerk, "unlawfully, willfully and deliberately refused
to acknowledge the authority of [plaintiff's] finance committee
appointment" of Pryor and Councilwoman Schneider, and prepared the
municipal budget despite his vehement disagreement with certain
budget expenses. Plaintiff alleged the Council unlawfully
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appointed Lavery and his law firm as the hold-over municipal
attorney without his prior approval, and that Lavery's February
5, 2014 appointment as municipal attorney terminated on December
31, 2014.
Plaintiff first sought injunctive relief, requesting an order
permanently restraining and enjoining the Council from interfering
with his "power of appointment," his "statutory authority to sign
checks," and his "right to prepare the [municipal] budget."
Plaintiff also sought an order permanently restraining and
enjoining the clerk from interfering with his "mandated duties"
and "right of access," and from "failing to perform her mandated
duties," as well as an order "[c]ompelling the Council to perform
their mandated statutory duty to oversee the clerk."
Plaintiff's complaint further sought declaratory judgments
that the position of municipal attorney became vacant on December
31, 2014, and that the hold-over provision in the Professional
Services Agreement between the Township and Lavery be declared
void, as well as an order restraining and enjoining the Lavery
firm from "holding themselves out as municipal attorney."
Plaintiff further sought a declaratory judgment confirming his
putative appointments of Carey and Morrison, as well as a judgment
for attorney's fees and costs.
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Plaintiff also alleged that he never authorized disbursements
made from the Township to Lavery or his firm, and that the Council
interfered with his exclusive power to make interim municipal
attorney appointments. Plaintiff sought an order demanding that
the Lavery firm pay back, with interest, all monies paid to them
through their interim appointment, and permanently restraining and
enjoining the Lavery firm from "seeking or receiving any public
funds . . . for services rendered since January 1, 2015."
Plaintiff further sought a declaratory judgment that he "alone has
the power of interim appointment to the position of municipal
attorney," and that "pending further deliberation by the Council
in its advice and consent function [plaintiff] is empowered to
make an interim appointment of a municipal attorney."
On March 11, 2016, the court denied plaintiff's requests for
injunctive relief in his order to show cause, finding in part that
his contentions were "based upon an over-simplified and
unsupported legal theory that is also based upon a misreading of
the applicable law," and that plaintiff erroneously interpreted
N.J.S.A. 40:69A-121 "to provide him with dictatorial powers." The
court noted that Lopatcong operates as a "Small Municipality Plan
A" under the Faulkner Act, which "consists of a Mayor and a four-
member Township Council, with all positions elected at-large on a
partisan basis in the November General Election." The court
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further noted that under this plan, the Council has "all
legislative powers," with the Mayor "having both voice and vote"
in Council sessions. Furthermore, although the Mayor has the
power of appointment for the municipal clerk, attorney, tax
assessor, tax collector and treasurer, "those appointments are
subject to Council confirmation." See N.J.S.A. 40:69A-122. Thus,
the court noted, under this form of government, "the shared
responsibility [between Mayor and Council] requires that neither
party can usurp the authority of the other." The court ultimately
concluded that plaintiff failed to establish a likelihood of
success on his claims regarding the appointment of the municipal
attorney, labor counsel and municipal auditor.
The court also determined that plaintiff's claims regarding
the municipal budget did not call for "immediate or injunctive
relief," because plaintiff and the Council are required to
cooperate with one another regarding the budget, and it was "within
their authority that the Council ha[d] taken affirmative steps to
prepare their own budget in the event the Mayor fails to present
one or if his proposed budget is not approved." The court denied
plaintiff's request for injunctive relief regarding the municipal
clerk's compliance with her statutory duties without prejudice
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because plaintiff failed to address these claims in his brief and
failed to establish imminent harm.1
The Council moved for summary judgment in May 2016, and on
July 22, 2016, the trial court issued a thorough written opinion
granting the Council's motion and dismissing plaintiff's claims.
Plaintiff's arguments on appeal only focus on his appointment of
interim municipal attorney, labor counsel and auditor, as well as
the court's determinations regarding approval of the municipal
budget and certain municipal expenses. We therefore limit our
discussion of the court's summary judgment findings with regards
to those issues, and note that plaintiff has waived argument on
the remaining claims and requests for declaratory judgments
addressed in the court's summary judgment decision. See Jefferson
Loan Co., Inc. v. Session, 397 N.J. Super. 520, 525 n.4 (App. Div.
2008) (finding an argument not briefed on appeal is waived);
Zavodnick v. Leven, 340 N.J. Super. 94, 103 (App. Div. 2001)
(same).
First, the court noted that Rule 4:69-6 provides a forty-
five-day time limit for actions in lieu of prerogative writs. The
1
Plaintiff's claims against municipal clerk Dilts were
voluntarily dismissed with prejudice and without costs by way of
stipulation of the parties dated August 24, 2016. We need not
further address those claims here.
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court found that since plaintiff presented his appointment of the
municipal attorney in January 2015 and did not nominate an attorney
at the January 2016 reorganization meeting, his claims regarding
the Council's failure to recognize his municipal attorney
appointment at the January 2015 Reorganization meeting were time-
barred under the Rule. The court further determined that any
claims relating to the Council's issuance of checks and
authorization of payments to Lavery without his approval prior to
December 17, 2015 were also time-barred under Rule 4:69-6.
The court further determined that plaintiff failed to offer
any opposition to the Council's assertion that plaintiff had no
authority "to prevent the payment of lawfully-approved municipal
bills" by virtue of his ministerial authority to sign checks. The
court determined there was "no genuine issue of material fact" as
to this issue, finding there was "no support in the applicable
[s]tatutes or . . . case law to support" plaintiff's position that
he had the authority to refuse to sign checks and block payment
of any authorized bills or expenses he disagrees with.
The court rejected plaintiff's assertions regarding his
purported exclusive power to prepare the municipal budget, noting
N.J.S.A. 40:69A-128 expressly provides the mayor prepares the
budget "with the assistance of the treasurer and the co-operation
of the other members of the council[,]" and, as such, there was
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no factual dispute that "the budget is a matter that requires some
degree of cooperation and participation from both" the Mayor and
the Council.
The court also rejected plaintiff's claimed entitlement to
appoint his trial counsel, William J. Caldwell, as interim
municipal attorney, finding that because the Township operates
under N.J.S.A. 40:69A-122 as a Small Municipality Plan A form of
government, an attorney must be "appointed by the Mayor with the
advice and consent of the Council." Relying on Woodhull v.
Manahan, 85 N.J. Super. 157, 168 (App. Div. 1964), where we held
in part that where the mayor and council fail to agree on a
municipal attorney, the existing municipal attorney serves in a
holdover capacity, the court further noted that "the law is . . .
clear that until a successor is appointed, unless otherwise
provided, the preexisting officeholder serves in a holdover
capacity." The court found that Lavery and his firm "were properly
appointed . . . as Municipal Attorney and in a holdover capacity,"
and that plaintiff "did not have the power to unilaterally appoint
. . . Caldwell . . . in an interim capacity," without the Council's
advice and consent pursuant to N.J.S.A. 40:69A-122.
The court rejected plaintiff's assertion that the Council
"could simply never provide its consent" to his municipal attorney
appointment, "thereby retaining . . . Lavery . . . as a holdover
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for an indefinite term." The court found that Lavery and his
firm's position as holdover municipal attorney was proper because
it "achieved its position by receiving past Mayoral appointments
that were consented to by the" Council.
As to plaintiff's appointment of labor counsel, the court
incorporated its previous findings in plaintiff's order to show
cause, noting that the "position of '[l]abor [c]ousel' is not a
statutorily created position," is "not statutorily defined," and
had not "been created [n]or recognized by any applicable Lopatcong
Township Ordinance." The court found that plaintiff failed to
provide any authority for the proposition that he may create the
position of labor counsel and appoint his own attorney "as he has
lost confidence in the current counsel," and to accept plaintiff's
position would "circumvent the Council's power to advise and
consent in an impermissible and illogical manner."
Lastly, as to plaintiff's appointment of a municipal auditor,
the court noted that plaintiff's only support for his assertion
that he had the power to unilaterally appoint a municipal auditor
was N.J.S.A. 40:69A-124, which provides in part that "[a]ll
officers and employees whose appointment or election is not
otherwise provided for in this article or by general law shall be
appointed by the mayor." The court found that plaintiff failed
to include his requested relief in the form of a judgment
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overriding the Council's rejection of his appointment of the
municipal auditor "within the requests for relief contained within
his Order to Show Cause." The court nevertheless addressed
plaintiff's argument and found that under N.J.S.A. 40A:5-4, the
power of appointment of a municipal auditor is expressly reserved
for the "governing body of every local unit," which consists of
the mayor and the Council, see N.J.S.A. 40:69A-116 (providing that
the governing body of each municipality includes "an elected
council and a mayor"), and not plaintiff alone.
Lavery and his law firm subsequently filed a motion for
summary judgment in July 2016. The trial court granted the motion
on August 19, 2016, dismissing plaintiff's claims against Lavery
and his law firm, and reaffirming its prior finding that plaintiff
"did not have the power to unilaterally appoint" his own interim
municipal attorney.2
On appeal, plaintiff presents the following argument for our
consideration:
POINT I
ON APPEAL REVIEWING THE GRANT OF SUMMARY
JUDGMENT DE NOVO SHOULD LEAD THIS COURT TO
FIND THAT THERE ARE GENUINE ISSUES OF MATERIAL
2
Plaintiff does not appeal the court's grant of summary judgment
to Lavery and his law firm, and they are otherwise not parties to
this appeal.
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FACT AND THEREBY REVERSE THE DECISION OF THE
TRIAL COURT BELOW GRANTING SUMMARY JUDGMENT
TO THE [COUNCIL].
II.
We review a grant of summary judgment de novo, applying the
same standard as the trial court. See State v. Perini Corp., 221
N.J. 412, 425 (2015) (citing Town of Kearny v. Brandt, 214 N.J.
76, 91 (2013); Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A.,
189 N.J. 436, 445-46 (2007)). In doing so, we "must view the
facts in the light most favorable to the non-moving party, which
in this case is plaintiff." Bauer v. Nesbitt, 198 N.J. 601, 605
n.1 (2009) (citing R. 4:46-2(c); Brill v. Guardian Life Ins. Co.
of Am., 142 N.J. 520, 540 (1995)).
To sustain its motion for summary judgment, the moving party
must show there is "no genuine issue as to any material fact
challenged and that the moving party is entitled to a judgment
. . . as a matter of law." Burnett v. Gloucester Cty. Bd. of
Chosen Freeholders, 409 N.J. Super. 219, 228 (App. Div. 2009).
We have carefully considered the record and plaintiff's
arguments supporting his contention the trial court erred by
granting the Council's summary judgment motion, and find they are
without merit sufficient to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E). We affirm the trial court's order
granting the Council's motion and dismissing those claims
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substantially for the reasons set forth in the trial court's
detailed and well-reasoned written opinion.
We add only that N.J.S.A. 40:69A-122 requires the Council's
advice and consent on the appointment of any attorney, including
labor counsel. It is well-established that our "primary goal"
when construing a statute "is to discern the meaning and intent
of the Legislature," and "the best indicator of that intent is the
plain language chosen by the Legislature." State v. Gandhi, 201
N.J. 161, 176 (2010). The plain language of these statutes could
not be any clearer.
N.J.S.A. 40:69A-122 provides that the mayor shall appoint "an
attorney" with the "advice and consent of the council." Here,
whether plaintiff intended to have one municipal attorney or, as
the court noted in its written decision, several "specialized
attorneys," the statute's plain language clearly provides that
plaintiff's appointment of "an attorney" requires the Council's
advice and consent. Plaintiff's argument that since "labor
counsel" is not specifically listed in N.J.S.A. 40:69A-122, he is
able to create the position and make the unilateral appointment
under N.J.S.A. 40:69A-124 is wholly without merit.
Plaintiff lastly argues we should exercise original
jurisdiction over the matter and decide his arguments on the
merits. As we have already determined summary judgment in favor
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of the Council was appropriate, this argument is also without
merit sufficient to warrant discussion in a written opinion. R.
2:11-3(e)(1)(E). We add only that it is well-established that the
exercise of original jurisdiction is discretionary, and we decline
to do so here. See R. 2:10-5; State v. Micelli, 215 N.J. 284, 293
(2013) (noting that an "appellate court may exercise such original
jurisdiction as is necessary to the complete determination of any
matter on review.").
Affirmed.
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