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Legal Q & A

Lien Priority, Forfeiture of Office and Non-Resident Employees

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

Q I am a member of the municipal council in our community. A public agency has used eminent domain to take privately-owned business property in our municipality for a road project. The property needed environmental remediation. The public agency deposited $50,000 in escrow with the court. This amount is the assessed value of the property without regard for the costs of remediation. In its complaint the agency sought a declaration that the defendants-owners were liable for the clean-up costs. It has since cleaned up the property and seeks reimbursement of these costs. There is a $35,000 municipal property tax lien on the property. Can the municipality satisfy that lien from the money on deposit with the court, since the municipal tax lien has “first lien” priority over other liens? I know that a state lien under the Spill Act would have priority, but the Spill Act was not utilized here.

A The Appellate Division has ruled on a case with a similar fact pattern, Casino Reinvestment Development Authority v. Teller et al, A-3808-04T5, decided April 10, 2006. While the Court agreed that the municipal tax lien has priority over other liens on the property, it found that the remediation costs expended by the condemner, the Casino Reinvestment Authority, had to be paid back to it before any other interests in the property were satisfied. Therefore, since well over $200,000 had been expended in remediation of the property, the full amount in escrow with the court, $55,200, belonged to the Authority. The cost of remediation in such a situation is a set aside, and is not subject to normal lien priorities. The court pointed out that even though the municipality could not satisfy its lien from the escrow deposit, it ultimately benefited from the clean-up.

Q If a municipality has an ordinance requiring residency for its employees, can it still employ a director of public safety and a treasurer who live outside the community?

A Yes. N.J.S.A. 40:A 9-1.1 and 9-1.2 provide that, notwithstanding any law to the contrary, a municipality can appoint nonresidents to these positions by ordinance.





Q I have just been elected to my municipality’s governing body for the first time, and I, along with several other new members, ran on a platform of a clean and open government. Therefore, I was somewhat taken aback to discover that a person who has worked in our municipal clerk’s office for 15 years was convicted of a weapons possession offense, a crime of the third degree, 11 years ago. Apparently, no one thought of pursuing his forfeiture of office at the time (or since). Furthermore, when we explored the possibility of doing something about it now, we found that he recently had his conviction expunged from his record, and we were told that we can no longer pursue the matter. We do not like having someone with a criminal record working in the municipal offices. Is there anything we can do at this point to enforce forfeiture.

A The Appellate Division considered a similar situation in a recent case, In the Matter of the Forfeiture of Public Office of Francois D. Nunez, a/k/a Francisco Nunez, Docket No. A-6187-04T1, decided April 4, 2006. The Court concluded …”that the expungement of (the employee’s) conviction relieved him of the forfeiture of public employment mandated by N.J.S.A. 2C:51-2.” Expungement can be granted ten years after conviction of most crimes (excluding murder, manslaughter, rape, robbery, arson, perjury, and endangering the welfare of a minor ) after successful completion of whatever sentence was imposed if the individual was not convicted of a prior or subsequent crime or more than two disorderly persons offenses or petty disorderly persons offenses.

The Court noted that, when a person petitions for and is granted expungement of a prior crime “…the arrest, conviction and any proceedings related thereto shall be deemed not to have occurred.” The decision cited language from an earlier New Jersey case explaining that the purpose of expungement is the “elimination of the collateral consequences {of a criminal conviction} imposed upon {an} otherwise law abiding citizen…’ (In re T.P.D., 314 N.J. Super. 643, 648 , Law Div.1997, aff’d, 314 N.J. Super. 535 (App.Div.1998). The Court concluded that a conviction that is now, post expungement, considered “not to have occurred” could not be the basis of a forfeiture of public office, and that such a forfeiture was one of the “collateral consequences” of a conviction that expungement is designed to eliminate.

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


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