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Legal Q & A

Forfeiture of Public Office and the Removal of the Municipal Attorney


Deborah M. Kole
League Staff Attorney
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Deborah M. Kole, League Staff Attorney

Q A policeman in our municipality was driving while off-duty when he ran a red light and hit a pedestrian. He did not stop his car, but rather returned home. The pedestrian died, and the officer was implicated by a witness to the accident. He was found guilty of third degree leaving the scene of an accident. I have heard that he was forced to forfeit his position as a police officer, and was barred forever from any public employment or office. I can understand why this conviction would make it inappropriate for him to continue being a policeman, but why does it bar him from any public employment?

A Your instinct is correct that the standard for forfeiture of public office is more cut and dried in this situation than the permanent ban. The governing statute, N.J.S.A. 2C:51-2a (1), provides that “A person holding any public office…who is convicted of an offense shall forfeit such office or position if: 1) He is convicted under the laws of this State of…a crime of the third degree.” Therefore, forfeiture is obviously appropriate in the situation you describe. The portion of the law that deals with the permanent ban, N.J.S.A. 2C:51-2d., says “…any person convicted of an offense involving or touching on his public office…shall be forever disqualified from holding any office or position of honor, trust or profit under this State or any of its administrative or political subdivisions.”

In a recent case, State of New Jersey v. Jose Rodriguez, Docket No. A-5914-01T5 (March 13, 2006), the Appellate Division dealt with the meaning of the statutory language “…involving or touching on his public office…” in a situation similar to the one you describe. The Court noted that prior case law concerning the application of this provision to police officers has made it clear that the officer need not be on duty when committing the offense for the statute to require future disqualification from office. In finding that the statute required such disqualification of the defendant under these circumstances, the Court said “In light of the fact that reporting to accident scenes and attending to the safety of the public are important parts of any police officer’s duties…”leaving the scene of a fatal accident clearly “involved or touched” on his public office as a member of the police force.

 

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Q My municipality is governed under the mayor-council form of government under the Faulkner Act. Our mayor died only a few months into his term, and the Council President became Acting Mayor. The Acting Mayor almost immediately removed the Corporation Counsel, who heads the Law Department, from his position. Does an acting mayor have the power to remove the municipal attorney from office when less than a year has passed since the appointment? I thought municipal attorneys served a fixed one year term by statute.

A N.J.S.A. 40A:9-139 provides that the term of office for “a municipal attorney…unless otherwise provided by law…shall be 1 year.” In the case of De La Roche v. Mount Olive, Docket No. A-5480-03T5, decided April 25, 2006, the Appellate Division ruled that a mayor-council community that did not have a Law Department was controlled by that statute, and the attorney in that community had a fixed term of one year and could not be replaced when a new administration took office.

However, a different result was reached by the Appellate Division when the municipal attorney in a mayor-council municipality was the head of the Law Department. In Karen DeSoto v. Jersey City, Docket No. A-6730-03T1, decided on March 1, 2006, the Court held that the Acting Mayor-Council President did have the power to remove the corporation counsel appointed by his predecessor after the appointee had served less than a year in that position. Noting that the general statute concerning a fixed one year term for a municipal attorney states that this term only applies if no other law provides for a different term of office, the Court found that the provisions of the Faulkner Act’s N.J.S.A. 69A-43 controlled in such a community when the municipal attorney is also the head of a department. This statute allows the mayor in a mayor-council community to remove any department head “…after notice and an opportunity to be heard…”and that “…such removal (is) effective on the 20th day after the filing of such notice unless the Council shall prior thereto have adopted a resolution by a two-thirds vote…disapproving the removal.”

Therefore, it would seem that, since the corporation counsel in your community heads the Law Department, the Acting Mayor does have the power to remove him after less than a year of service

This column is for informational purposes only, and is not intended as legal advice.

 

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