Northwest Bergen County Utilities Authority v. Kathleen A. Donovan (075060)

143 A.3d 290, 226 N.J. 432, 2016 N.J. LEXIS 853
CourtSupreme Court of New Jersey
DecidedAugust 15, 2016
DocketA-36/37
StatusPublished
Cited by17 cases

This text of 143 A.3d 290 (Northwest Bergen County Utilities Authority v. Kathleen A. Donovan (075060)) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Northwest Bergen County Utilities Authority v. Kathleen A. Donovan (075060), 143 A.3d 290, 226 N.J. 432, 2016 N.J. LEXIS 853 (N.J. 2016).

Opinions

Justice LaVECCHIA

delivered the opinion of the Court.

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 [436]*436in 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 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 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 [437]*437county. 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 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 [438]*438at 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 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 amenda-tory 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.

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 [439]*439expenditures for the stipends or providing for the commissioners’ health benefits.

II.

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Bluebook (online)
143 A.3d 290, 226 N.J. 432, 2016 N.J. LEXIS 853, Counsel Stack Legal Research, https://law.counselstack.com/opinion/northwest-bergen-county-utilities-authority-v-kathleen-a-donovan-075060-nj-2016.