author: Michels, J. S. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOSEPH A. FUREY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued November 26, 1973
    Submitted for Determination March 25, 1974
    Decided April 10, 1974.

      Before Judges Collestek, Lynch and Michels.

      Mr. Jeffrey L. Gold for appellant (Messrs. Feinberg & Ginsburg, attorneys).

      Mr. L. Steven Pessin, Deputy Attorney General, for respondent (Mr. William F. Hyland, Attorney General of New Jersey, attorney; Mr. George F. Kugler, Jr., former Attorney General of New Jersey, of counsel).
   The opinion of the court was delivered by

Michels, J. S. C.

Between 1968 and 1971 the City of Wildwood had a commission form of government with three commissioners: defendant Joseph A. Eurey, who was and is a physician, Wilbur Ostrander and Charles Masciarella, who was also Wildwood’s mayor. Three indictments, the essential details of which are hereinafter stated, were returned against defendant.

Indictment No. 432-71 charged that defendant and Masciarella, together with one Nicholas Viscomi, conspired to purchase, obtain and act upon the granting of amusement games licenses for their personal gain.

Indictment No. 433-71 charged that defendant and Masciarella conspired with Viscomi to misuse their authority to alter an ordinance to increase the number of auction licenses in Wildwood from three to four and to offer $1,000 to Ostrander to act favorably upon such alteration, for their personal gain.

Indictment No. 434-71 charged defendant in three counts with misconduct in office in voting for and approving amusement games licenses in which he had an undisclosed interest, for his personal gain.

Defendant was tried alone and convicted by a jury of all .charges except those alleged in the second and third counts of indictment No. 434-71, which were dismissed at the end of the State’s ease. He was sentenced to a term of one to two years, which was suspended, and fined $1,000.

Defendant appeals, asserting a number of grounds for reversal.

I

We first consider defendant’s contention that the trial court erred in not granting his motions for acquittal on indictment Nos. 432 and 434 on the ground they charge no crime. The defense that an indictment fails to charge an offense may only be raised by motion either before trial or within ten days after a verdict of guilty, or within such further time as the court may fix during such ten-day period, or on appeal, and shall not be considered during trial. B. 3 :10 — 3. The record does not disclose that the motions to which defendant refers were made within one of the time periods specified in the foregoing rule. However, since the sufficiency of the two indictments is raised on appeal, we deem it appropriate to review the contentions.

Indictment No. 434 is predicated on N. J. S. A. 2A: 85-1, which denominates all offenses of an indictable nature at common law, not otherwise expressly referred to therein, as misdemeanors. This has been held to include misconduct in office. State v. Begyn, 34 N. J. 35 (1961); State v. Seaman, 114 N. J. Super. 19, 31 (App. Div. 1971), certif. den. 58 N. J. 594, cert. den. 404 U. S. 1015, 92 S. Ct. 674, 30 L. Ed. 2d 662 (1972); State v. Silverstein, 76 N. J. Super. 536, 540 (App. Div. 1962), aff’d 41 N. J. 203 (1963).

Misconduct in office means “any act or omission in breach of a duty of public concern, by one who has accepted public office.” 1 Burdick, Law of Crime (1946), § 272 at 387, quoted in State v. Weleck, 10 N. J. 355, 365 (1952). It has also been defined as “the violation of a prescribed duty to the public * * * for which the offender may be indicted at common law.” State v. Startup, 39 N. J. L. 423, 425 (Sup. Ct. 1877); State v. McFeeley, 136 N. J. L. 102, 107 (Sup. Ct. 1947). It is essential, said the court in Weleck, supra, at 10 N. J. 366, that an indictment for misconduct in office allege both a prescribed duty of the office and facts constituting a breach thereof. Such duties are those that are cast by law on the incumbent of the office. They may be imposed by some special or private law or by a general act of the Legislature, or they may arise out of the very nature of the office itself. Where they arise out of the very nature of the office, the source of the duty need not be alleged in the indictment, for the courts will take judicial notice of such duties. Weleck, at 366.

Upon analysis, it is evident that the first count of Ho. 434 charges the offense of misconduct in office. It alleges as follows:

(1) Continuously, between May 2, 1968 and July 15, 1970, defendant was a commissioner and the Director of Public Safety of Wildwood;

(2) As such commissioner and director he was charged with the official public duty of discharging the duties of his office, to be diligent and conscientious, to exercise his discretion reasonably, to display good faith, honesty and integrity, to be impervious to corrupting influences, and to transact the business of his office frankly and openly in the light of public scrutiny so that the public might know and be able to know and judge him and his work fairly;

(3) On May 9, 1969 defendant, together with Commissioner Maseiarella and Yiscomi, contributed moneys to purchase and operate an amusement games license together with the business and stock situate at 922-3924 Boardwalk, Wild-wood, from Paul and Anne Bugala and Anthony Polaskas, for $30,000, exclusive of stock;

(4) On May 9, 1969 defendant, contriving and intending to violate the powers and duties of his public office and to prostitute and betray the trust and confidence thereby imposed in him, unlawfully, wilfully, knowingly and corruptly allowed all agreements, leases, promissory notes, licenses and settlement sheets to be drawn in the name of Viscomi and his wife without the names of defendant and Masciarella appearing thereon;

(5) On June 17, 1969 defendant acted upon, voted for and passed a resolution approving an amusement games license to Viscomi for 3922 Boardwalk, in which defendant had a direct or indirect undisclosed interest from which he might realize a personal gain through his action;

(6) On March 17, 1970 defendant, in execution of “the said conspiracy” and to effect its object (sic, conspiracy is not otherwise alleged in this count), did act upon, vote for and pass a resolution approving an amusement games license to Joseph Cardamone and Manuel Wolf for 3922-24 Boardwalk ;

(7) Defendant did wilfully and corruptly prostitute, violate and betray the duties of his public office and the public trust and confidence reposed in him, contrary to the provisions of N. J. S. A. 2A:85-1.

In Driscoll v. Burlington-Bristol Bridge Co., 8 N. J. 433 (1952), cert. den. 344 U. S. 838, 73 S. Ct. 25, 97 L. Ed. 652 (1952), reh. den. 344 U. S. 888, 73 S. Ct. 181, 97 L. Ed. 687 (1952), the New Jersey Supreme Court, speaking of members of a board of chosen freeholders and of a bridge commission, said in language which is particularly apt here, as follows:

[They] are public officers holding positions of public trust. They stand in a fiduciary relationship to the people whom they have been elected or appointed to serve. [Citations omitted]. As fiduciaries and trustees of the public weal they are under an inescapable obligation to serve the public with the highest fidelity. In discharging the duties of their office they are required to display such intelligence and skill as they are capable of, to be diligent and conscientkms, to exercise their discretion not arbitrarily but reasonably, and above all to display good faith, honesty and integrity. [Citations omitted]. They must be impervious to corrupting influences and they must transact their business frankly and openly in the light of public scrutiny so that the public may know and be able to judge them- and their work fairly. When public officials do not so conduct themselves and discharge their duties, their actions are inimicable to and inconsistent with the public interest, and not only are they individually deserving of censure and reproach but the transactions which they have entered into are contrary to public policy, illegal and should be set aside to the fullest extent possible consistent with protecting the rights of innocent parties. [Citations omitted].
These obligations are not mere theoretical concepts or idealistic abstractions of no practical force and effect; they are obligations imposed by the common law on public officers and assumed by them as a matter of law upon their entering public office. The enforcement of these obligations is .essential to the soundness and efficiency of our government, which exists for the benefit of the people who are its sovereign. Constitution of 1947, art. I, par. 2. [8 N. J. at 474-^176]

Defendant contends that even though the indictment alleges a conflict of interest, which perhaps would be sufficient to disqualify him from voting, such conflict is not a crime. Uo case cited by him supports his thesis. While it is true that a municipal ordinance or resolution may be set aside if it is infected with the taint of self-interest of the officials who voted for it, cf. Pyatt v. Mayor, etc., Dunellen, 9 N. J. 548, 555 (1952), it is likewise true that such an official may be prosecuted for his misconduct. See Driscoll, supra, where the court said (8 N. J. at 476), “The citizen is not at the mercy of his servants holding positions of public trust nor is he helpless to secure relief from their machinations except through the medium of the ballot, the pressure of public opinion or criminal prosecution.” (Emphasis supplied). In State v. Garrison, 130 N. J. L. 350 (Sup. Ct. 1943), convictions were affirmed on charges which broadly involved the misuse by members of the Board of Aldermen of the City of Paterson of their positions as such members. The indictment was held sufficient.

A public official acts corruptly and is guilty of misconduct in office when he has an undisclosed interest in a venture which comes before the body of which he is a member, and he acts in favor of that interest through the office he holds. Indictment No. 434 plainly charges defendant with the crime of misconduct in office and is legally sufficient.

What we have said concerning Indictment No. 434 applies as well to Indictment No. 432. That indictment charges defendant and Masciarella with unlawfully conspiring, during the same time period alleged in No. 434, to purchase, obtain and act upon the granting of licenses, with bad motives and with wrongful and corrupt design or intent when they might realize a personal gain through their actions. The indictment then alleges overt acts identical to some of the acts alleged in No. 434. Similarly, we hold that Indictment No. 433 charges defendant in equally plain language with conspiracy to commit the crime of misconduct in office.

II

Defendant, saying that his presence and that of Masciarella were “necessary” to constitute a quorum of commissioners and that no action could be taken without the affirmative votes of two members, contends that the court erred in denying his motions for an acquittal based on the “doctrine of necessity” with respect to Indictments No. 432 and 434. This contention has absolutely no merit. The short answer is that defendant, having created the situation, may not escape his criminal liability through such a specious argument. Certainly, this court will not countenance the application of the “doctrine of necessity” where, as here, fraud or corruption is involved.

III

Defendant contends that the trial court erred in refusing to grant his pretrial motion to dismiss the indictments on the ground that he had not been properly apprised of his rights before testifying before the grand jury.

Defendant voluntarily appeared before the grand jury. Before he testified he was apprised of his constitutional rights by both the prosecutor on April 14, 1972 and by the grand jury on April 18, 1972. He signed waivers of immunity on both dates, and he well knew that he was the target of the grand jury inquiry, nevertheless, he contends that he did not understand the scope of the investigation, arguing that at no time before he voluntarily testified was he made aware that the grand jury was investigating anything to do with 3922-3924 Boardwalk, except as related to altering the ordinance. He specifically argues that at no time was he made aware that there was any investigation concerning the voting for amusement games licenses for which he was subsequently indicted and convicted. This argument lacks any merit whatsoever.

In addition to being apprised fully of his rights, .signing the waivers of immunity and knowing full well that he was the target of an investigation, defendant was expressly told by Captain Hickman on April 14, 1972 that they were investigating “the allegations of plans, proposal, or/and [sic] conspiracy to change an ordinance to allow another auction house on the Wildwood Boardwalk.” The scope of the investigation was explained adequately to defendant. The inquiry into defendant’s voting for amusement games licenses was within the scope of the investigation into defendant’s misconduct in office and conspiracy to alter the ordinance in question.

Defendant’s reliance on State v. Sarcone, 96 N. J. Super. 501 (Law Div. 1967), and State v. Rosania, 96 N. J. Super. 515 (Law Div. 1967), is clearly misplaced and neither provides any support for defendant’s argument. Accordingly, the trial court properly denied the motion to dismiss the indictments.

IV

Defendant argues that his conviction for conspiracy under Indictment No. 432 should be reversed because the co-conspirator named therein, Mayor Masciarella, was subsequently acquitted at a separate trial on that indictment. We disagree.

The gist of the crime of conspiracy is an unlawful agreement between two or more persons. See State v. Carbone, 10 N. J. 329 (1952). Thus, we agree that it is impossible for one person to conspire with himself alone (see State v. Collins, 120 N. J. Super. 48, 50 (Law Div. 1972)), and we recognize that there is authority that if all but one of the named co-conspirators are acquitted a conviction of the remaining one cannot logically stand. See State v. Collins, supra; State v. Goldman, 95 N. J. Super. 50, 52 (App. Div. 1967), certif. den. 50 N. J. 288 (1967). Cf. State v. Oats, 32 N. J. Super. 435, 440-441 (App. Div. 1954). However, this rule has no application in this case since Indictment No. 432 names a third co-conspirator, Nicholas Viscomi. While Viscomi was not indicted, and testified for the State under a grant of immunity, nevertheless, he was named in the indictment as a co-conspirator, and the evidence established that he was involved with defendant and Masciarella in the conspiracy charged in that indictment. Accordingly, the conviction of defendant on Indictment No. 432 must stand.

V

Defendant further contends that the trial court erred in refusing to permit defense counsel to cross-examine Commissioner Ostrander concerning his expectations for favorable treatment on his own indictment in consideration for his testifying for the State against defendant. We agree.

There can be no doubt that defense counsel should be afforded wide latitude in his cross-examination of a State’s witness in order to establish bias. State v. Pontery, 19 N. J. 457, 472 (1955). While Ostrander was not an accomplice of defendant, and while the questioning concerned a completely separate indictment from the one on which defendant was being tried, nevertheless, Ostrander’s expectation of favorable treatment in connection with his indictment in exchange for' his testimony as a State’s witness against defendant bore directly on the weight to be given such testimony. The jury should have been permitted to consider this evidence in determining Ostrander’s credibility. See State v. Mathis, 47 N. J. 455, 468-469 (1966); State v. Spruill, 16 N. J. 73, 78-79 (1954); State v. Curcio, 23 N. J. 521, 525 (1957); State v. Zwillman, 112 N. J. Super. 6, 18-19 (App. Div. 1970), certif. den. 57 N. J. 603 (1971).

Ostrander’s testimony was relevant solely to Indictment No. 433, which charged defendant and Masciarella with conspiracy to amend the Wildwood Auction Ordinance and to offer a $1,000 bribe to Ostrander to act favorably upon such amendment. Accordingly, defendant’s conviction on Indictment No. 433 is reversed and that matter remanded for a new trial on that indictment.

However, we disagree with defendant that his conviction on Indictments Nos. 432 and 434 should also be reversed. Ostrander’s testimony was not related to, nor did it furnish, any basis for defendant’s conviction on those indictments. Indictment No. 432, as pointed out above, charged defendant with conspiracy to purchase, obtain and act upon the granting of amusement games licenses for his personal gain, and Indictment No. 434 charged defendant with misconduct in office in voting for and approving amusement games licenses. Thus, Ostrander’s testimony did not go to these charges and could not form the basis of these convictions. Defendant was convicted thereon on the basis of entirely different evidence, and therefore his convictions on Indictments Nos. 432 and 434 were proper.

VI

Finally, defendant contends that the verdict against him on each of the indictments was contrary to the weight of the evidence. We disagree. Onr review of the entire record established that the evidence produced by the State, together with all the favorable inferences which reasonably could be drawn therefrom, was sufficient for a reasonable jury to find defendant guilty of the charges set forth in Indictments Nos. 432 and 434 beyond a reasonable doubt. See State v. Reyes, 50 N. J. 454, 458-459 (1967) ; State v. Yormark, 117 N. J. Super. 315, 343 (App. Div. 1971), certif. den. 60 N. J. 138 (1972).

In view of our ruling that the conviction on Indictment No. 433 should be reversed, we do not deem it necessary to comment on the sufficiency of the evidence with respect to that conviction.

Accordingly, the judgments of conviction on Indictments No. 432 and No. 434 are affirmed, and the judgment of conviction on Indictment No. 433 is reversed and remanded for a new trial.

       Hereinafter the court year in which the indictments were returned are omitted for the sake of brevity.

      We have already noted that the second and third counts were dismissed at trial.


source: Caselaw Access Project

author: Fulop, J. S. C.

license: Public Domain

text:
    JEAN MOSELY, ROBERT McNANY, JOSEPH T. KURZEJA AND EARL N. COCHARIO, PLAINTIFFS, v. HARRY C. KATES, CITY CLERK AND THE CITY OF SUMMIT, NEW JERSEY, A MUNICIPAL CORPORATION, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided April 16, 1974

      Mr. Robert B. Bourne for the plaintiffs (Messrs. Joshua M. Levin and Jonathan Plaut on the brief and of record).

      Mr. Russell T. Kerby, Jr. for defendants.
   Fulop, J. S. C.

This action was instituted by citizens and residents of the City of Summit against the municipality and the city clerk to have the apportionment of the city declared ■unconstitutional and to require the adoption of some other plan which would provide more just representation in municipal affairs to plaintiffs and others who live in the same area as they do.

The City of Summit was incorporated in 1899 under a statute (L. 1899, c. 52) now, as supplemented, an act saved from repeal, N. J. S. A. 40:109 — 3(1) to 40:109 — 3(3 02), applicable to cities having a population of less than 12,000. The statute was inoperative in any such city until adopted by a majority of the voters. The statute was adopted in Summit on April 11, 1899 by 804 votes in favor and 163 against. Only one other city in the State, Englewood, adopted the statute.

According to the 1970 census, the City of Summit has a population of 23,620. Its area is 6,01 square miles. It is still operating under the 1899 charter.

Plaintiffs live in a section of the city which they refer to as “East Summit,” a popular designation for an undefined area in the eastern portion of the city. Plaintiffs allege that East Summit is composed of former voting districts 9, 10, 11, 12 and 13. At least one witness disagreed with this definition, expressing the view that old district 9 is not a part of East Summit. In any event, these designations have been superseded by a redistrieting plan adopted in February 1973 and first utilized in the 1973 elections.

From 1899 to 1973 the city was divided into two wards separated by the Erie-Laekawanna Railroad tracks. The 1970 census showed that there were 9,376 residents in Ward I and 14,244 residents in Ward II. This action was instituted on October 24, 1972. On January 30, 1973 the Common Council of the City of Summit adopted an ordinance providing for the appointment of a commission pursuant to N. J. S. A. 40:44-1 to 40:44-8, inclusive, to change the lines and boundaries of the two wards to equalize the population therein. The ordinance provided for the retention of two wards.

The mayor appointed two registered Republicans and two registered Democrats to the Commission, as provided in N. J. S. A. 40:44-2. Under N. J. S. A. 40:44-6 the mayor is authorized to call a meeting of the commissioners and to break a tie vote if one should occur.

The mayor and .the two Republican commissioners submitted a plan under which each of the two wards would have exactly the same number of voters as shown in the 1970 census, and this became the official apportionment. The minority members dissented and offered other plans which perhaps would have provided greater representation for East Summit.

What plaintiffs designate as East Summit now falls in Districts 1, 2, 3, and 4 and part of Districts 5 and 6 in the Second Ward, and District 2 of the First Ward. According to the statistics furnished by plaintiffs, the population of East Summit is 5,461. Of these 1,460 or 27% are now in Ward I and 4,001 or 73% in Ward II. The total population of each ward is (or was as of the date of the redistricting) 11,810, or one-lialf of the city population.

As heretofore, there are seven members of city council — three members are elected from each of the two wards, one each year for three years. One councilman is elected from the whole city at large for a 2 year term. The mayor is elected at large for a four-year term. These officeholders receive no salary. At present all are and have long been Republicans.

In November 1973 there were 13,605 registered voters in the city, of whom approximately 7,049 voted (two districts in Ward I are missing from the figures in evidence). In Ward I there were 6,752 registered voters of whom approximately 3,646 voted. In Ward II there were 6,853 registered voters of whom 3,863 voted.

Governor Byrne, the Democratic candidate, carried every district in the city. The vote for councilman-at-large totaled 3,752 for the Republican candidate and 3,408 for the Democratic candidate. The vote for member of the common counoil from the First Ward was 1,943 for the Republican and 1,661 for the Democrat. In the Second Ward, the vote was 1,993 for the Republican and 1,644 for the Democrat. The East Summit districts were generally carried by the Democratic candidates.

The statistics presented from census records show that the population of Census Tract 380, most of East Summit, includes 14.3% of black citizens while the rest of the city has only 3.1% of black persons. In the same tract 42.4% are foreign-born or second generation Americans, while the rest of Summit has only 28.7% of such residents. In Tract 380, 52.8% are high school graduates while in the rest of the city 79.9% are. Incomes and property values are lower in Tract 380 than in the rest of Summit as a whole.

Comparisons are between medians and means in Tract 380 and in the rest of the city. The evidence establishes that there are people and residences in many parts of the city in the same classifications as in East Summit as to financial means, color, national origins, education, etc.

East Summit is not a well defined area and its characteristics may vary with the selection of boundaries. The area defined by plaintiffs is not a slum or ghetto, and does not contain a homogeneous population of any racial, religious or political group, but a mixture of people. The population is mobile, as is demonstrated by the removal of one of four plaintiffs during the pendency of this action and the removal from the area of the councilman-at-large while in office and his subsequent reelection to office by the entire city.

There is no evidence whatsoever of discrimination on the basis of race, religion or national origin. The evidence shows no obstacle to voting by the residents of the districts referred to. It further shows that a very substantial proportion of city employees are residents of the area. The city has expended more money for education and recreation in this section than in other parts of the city. The evidence presented is undisputed that the city is well governed.

The two plaintiffs who testified, Mrs. Mosely, a black woman, and Mr. Cochario, a native of Summit of Italian parentage, found no fault with the actions of the governing body. They had no particular grievances. Their only complaint is that none of the members of the council are elected from East Summit. They feel that councilmen living elsewhere in the ward have not the same interest in their neighborhood and are not as available to hear complaints as an area councilman would be. Of the other two plaintiffs one has removed from the city. The other was away at the time of trial and did not testify.

The other witnesses for the plaintiffs were all nonresidents of East Summit. These were:

Michael Goodman, statistician.

William Holub, minority member of the Redistricting

Commission.

Mrs. Jean Sinden, former president of the League of

Women Yoters.

Mrs. Helen Kadota, an active member of the League of

Women Yoters.

These witnesses were impressive. The position of the League of Women Yoters, arrived at after extensive study, is particularly so because it is based on study and not upon self-interest. As expressed in a position paper in evidence it

* * * perfers division into four words, with three [eounselmen] at large. It is the simplest and easiest to achieve and would, in our opinion make the Council more representative, more responsive and improve its decision making capability. * * *

* * * * ,.*> i’r *

The basis of our position on the need for more than two wards is our feeling that there are ethnic, racial and political differences which are submerged in multi-member voting districts. In studying the census data we have developed information on the diversity of the community.

The City also presented impressive testimony by Mayor Elmer J. Bennett and Oouncilman-At-Large and President of the City Council Prank H. Lehr. City Clerk Harry C. Kates, Councilman Watson B. Smith, Jr., Joseph R. Angelo, Jr., seli-styled “Mayor of East Summit,” and Frank Liberato, a Republican Election Board member residing in East Summit, also testified. The last two expressed satisfaction with things as they are in East Summit.

The essence of the incumbents’ argument is that East Summit residents are fully represented on the city council, participating in the choice of three councilmen in each ward, one elected each year, as well as the councilman-at-large and the mayor. They contend that men elected from half of the city are less likely to take a narrow provincial view but represent the best interests of the city as a whole. This arrangement is said to be less divisive and more unifying than having one councilman for each small local group of people.

In 1946 the United States Supreme Court refused to deal with unequal districting within the states. In Colegrove v. Green, 328 U. S. 549, 556, 66 S. Ct. 1198, 1201, 90 L. Ed. 1432, 1436 (1946), Mr. Justice Frankfurter said: “Courts ought not to enter this political thicket.” That case has since been overruled. Baker v. Carr, 369 U. S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962).

In 1964, in Reynolds v. Sims, 377 U. S. 533, 84 S. Ct. 1362, 12 L. Ed. 2d 506, the United States Supreme Court held that the unequal apportionment of state legislative districts was a violation of the Equal Protection Clause of the Constitution of the United States. Mr. Chief Justice Warren there held: [377 U. S. at 555, 84 S. Ct. at 1378, 12 L. Ed. 2d at 523-524]

The right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government. And the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote as effectively as by wholly prohibiting the free exercise of the franchise.

In Avery v. Midland County, Texas, 390 U. S. 474, 88 S. Ct. 1114, 20 L. Ed. 2d 45 (1968), the United States Supreme Court held that the right of each resident to have .his vote given equal weight with the vote of every other resident applies to units of local government and is constitutionally protected. Mr. Justice White said for the court:

Although the forms and functions of local government and the relationships among the various units are matters of state concern, it is now beyond question that a State’s political subdivisions must comply with the Fourteenth Amendment. The actions of local government are the actions of the State. A city, town or county may no more deny the equal protection of the laws than it may abridge freedom of speech, establish an official religion, arrest without probable cause, or deny due process of law.

When the State apportions its legislature, it must have due regard for the Equal Protection Clause. Similarly, when the State delegates lawmaking power to local government, and provides for the election of local officials from districts specified by statute, ordinance or local charter, it must insure that those qualified to vote have the right to an equally effective voice in the election process. [390 U. S. at 480, 88 S. Ct. at 1118, 20 L. Ed. 2d at 50-51]

The attack here is solely upon the multimember districts. Such districts were sustained in Fortson v. Dorsey, 379 U. S. 433, 85 S. Ct. 498, 13 L. Ed. 2d 401 (1965); Dusch v. Davis, 387 U. S. 112, 87 S. Ct. 1554, 18 L. Ed. 2d 656 (1967), and Whitcomb v. Chavis, 403 U. S. 124, 91 S. Ct. 1858, 29 L. Ed. 2d 363 (1971). However, in Fortson it was said:

It might well be that, designedly or otherwise, a multi-member constituency apportionment scheme, under the circumstances of a particular case, would operate to minimize or cancel out the voting strength of racial or political elements of the voting population. When this is demonstrated it will be time enough to consider whether the system still passes constitutional muster. [379 U. S. at 439, 85 S. Ct. at 501, 13 L. Ed. 2d at 405]

In Whitcomb, on the other hand, the court said:

As our system has it, one candidate wins, the others lose. Arguably the losing candidates’ supporters are without representation since the men they voted for have been defeated; arguably they have been denied equal protection of the laws since they have no legislative voice of their own. This is true of both single-member and multi-member districts. But we have not yet deemed it a denial of equal prolection to deny legislative seats to losing candidates, even in those so-called “safe” districts where the same party wins year after year. [403 U. S. 153, 91 S. Ct. at 1874, 29 L. Ed. 2d at 381]

In White v. Regester, 412 U. S. 755, 93 S. Ct. 2332, 37 L. Ed. 2d 314 (1973), Mr. Justice White said for the court:

We affirm the District Court’s judgment, however, insofar as it invalidated the multimember districts in Dallas and Bexar Counties and ordered those districts to be redrawn into single-member districts. Plainly, under our eases, multimember districts are not per se unconstitutional, nor are they necessarily unconstitutional, when used in combination with single-member districts in other parts of the State. 91 * * But we have entertained claims that multimember districts are being used invidiously to cancel out or minimize the voting strength of racial groups. * *' * To sustain such claims, it is not enough that the racial group allegedly discriminated against has not had legislative seats in proportion to its voting potential. The plaintiff’s burden is to produce evidence to support findings that the political processes leading to nomination and election were not equally open to participation by the group in question — that its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice. Whitcomb v. Chavis, supra, 403 U. S. at 149-150, 91 S. Ct. at 1872. [412 U. S. at 765, 93 S. Ct. at 2339, 37 L. Ed. at 324]

The question presented in this case is not whether it would be wiser or better to divide the city into more single member districts. The issue is rather whether the action taken by the mayor and city council deprives plaintiffs of their constitutional rights.

It is not enough to show that the voters of some districts have been outvoted by the voters in other districts in the same ward. In every contested election some are outvoted under our system, no matter what the size of the ward. In single member wards those voting against the successful candidate are as much defeated as the majority in the districts called East Summit. There cannot be a councilman for each voter. There is no constitutional requirement as to the number of people who shall make up a “cluster” of people entitled to a councilman. Every minority cannot be represented.

The representation of citizens in municipal governments has never been equal and cannot be. Minorities cannot in all cases be represented. Even under proportional representation or under any system of elections the views of some will certainly not be represented and cannot be in a representative government with majority or plurality rule.

The entire system of unequally dividing portions of the state into municipalities with local governmental bodies inherently produces unequal representation. Compare the share in municipal government of the 14 residents of the Borough of Peterborough, Bergen County, the 23 residents of the Borough of Pine Valley, and the 12 residents of the Borough of Tavistock in Camden County, with the 382,417 residents of Newark, 260,545 residents of Jersey City, and 112,664 residents of Elizabeth. Every resident of Summit has much less voice in local government than the residents of the tiny municipalities mentioned, and much more than the residents of the large cities. The losers in these big city elections are much more numerous than the East Summit residents and are as unrepresented as the losers in East Summit.

The City of Summit is relatively small. It would not be unreasonable to elect all councilmen at large. It cannot therefore be unreasonable that some be elected from each half of the city.

The evidence does not establish that smaller single member wards would necessarily more fairly represent the people of the community. It would be constitutionally permissible to provide for four or six wards with one councilman from each. It might be wiser to do so. But the plan adopted by the city is also constitutionally permissible.

The Court has no power to substitute its own view for the discretion entrusted by law to the municipal officials. See Reisdorf v. Mayor, etc., Mountainside, 114 N. J. Super. 562 (Law Div. 1971) where Judge Eeller wrote:

Courts are enjoined by our Constitution and Home Rule Act to interpret statutes liberally in favor of the existence of local power to deal with local needs. Whelan v. New Jersey Power and Light Co., 45 N. J. 237, 251, 212 A. 2d 136 (1965).
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The judiciary does ont pass upon the wisdom of a municipal ordinance, nor does it nullify decisions of a governing body merely because there is disagreement as to the wisdom of municipal action, or a debatable issue has been presented. Fred v. Mayor, etc., Old Tappan, 10 N. J. 515, 92 A. 2d 473 (1952).
Furthermore, factual support for local legislative action is presumed. Barring a showing contra, the assumption is that the measure has a rational basis within the knowledge and experience of municipal law makers. Guill v. Mayor, etc., Hoboken, 21 N. J. 574, 581, 122 A. 2d 882 (1936).
The wisdom of legislative action is reviewable only at the polls. The judicial role is tightly circumscribed. We may act only if tbe presumption in favor of the ordinance is overcome by a clear showing that it is arbitrary or unreasonable. Kozesnik v. Montgomery Tp., 24 N. J. 154, 167, 131 A. 2d 1 (1957).

Judgment will therefore be entered in favor of the defendants denying the relief sought.


author: Antell, J. S. C.

text:
    LINCOLN HIGHWAY REALTY, INC., A NEW JERSEY CORPORATION, PLAINTIFF, v. STATE OF NEW JERSEY, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided April 17, 1974.

      Mr. David M. Baer for plaintiff (Messrs Baer and Arbeiter, attorneys).

      Mr. Alan B. Roihstein, Deputy Attorney General, argued the cause for defendant (Mr. William F. Hyland, Attorney General, attorney).
   Antell, J. S. C.

On this motion plaintiff asks summary judgment for specific performance of an option to purchase, allegedly exercised by the defendant. Defendant responds that because the option was not exercised in the manner prescribed by statute the facts presented do not give rise to an enforceable agreement. There is no genuine issue as to the following material facts.

In June 1967 plaintiff entered into a 25-year lease agreement with the New Jersey Commission for the Blind, a state agency. Paragraph 36 contains the following provision:

Landlord grants unto the Tenant the option to purchase the leased premises for the sum of TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00), such option to be exercisable only during the sixth year of the term of the Lease Agreement, and if not then exercised then this Option shall be null and void * *' *.

On May 11, 1973 the Director of the Division of Purchase and Property wrote the following letter to the plaintiff:

Gentlemen:
In accordance with paragraph Thirty-six as contained in the lease agreement dated June, 1967 this letter will serve as formal notice that the State of New Jersey intends to exercise the purchase option in accordance with the said paragraph for the sum of $250,000.00.

On May 17 plaintiff acknowledged the foregoing and supplied information requested by the Director’s letter. Nothing further transpired until June 27, 1973 when plaintiff inquired by letter of the Director as to the proposed schedule for the performance of their respective obligations. The Director replied on June 28, 1973:

Since May, 1973. when I wrote you concerning the above captioned premises, I have had several appraisals completed concerning the property. On the basis of these appraisals and all other pertinent facts considered, I must withdraw my original offering of $250,000.00 and resubmit a new offering of $180,000.00 for the concerned property.

Ordinarily, these circumstances would leave little doubt as to the lessor’s right to relief. But this defendant is a governmental body, the powers of which are created and limited by law, and the provisions of N. J. S. A. 52:34-6 et seq. are applicable. Section 6 provides:

All purchases, contracts or agreements, the cost or contract price whereof is to be paid with or out of State funds shall, except as otherwise provided in this act, be made or awarded only after public advertisement for bids therefor, in the manner provided in this act.

Section 7 authorizes the Director of the Division of Purchase and Property to proceed without advertising where the aggregate amount does not exceed $2,500. This is one exception. The other is created by section 8, and it is this section with which we are here concerned. It provides:

Any such purchase, contract or agreement where the cost or contract price exceeds §2.500.00 may, with the written approval of the State Treasurer, be made, negotiated or awarded by the Director of the Division of Purchase and Property without advertising when the subject matter thereof is that described in section 4 of this act. [N. J. S. A. 52:34-9] * ''r * [Emphasis supplied]

N. J. S. A. 52:34-9 (d) specifies as subject matter appropriate for the foregoing exception:

* * *' the acquisition of any real property by gift, grant, purchase or any other lawful manner in the name of and for the use of the State for the purpose of the administration of the State’s business in accordance with appropriations made therefor when moneys are required for the acquisition * *' * [Emphasis supplied]

The substance of these statutory excerpts requires that all state contracts involving more than $2,500 be awarded only after a public advertisement for bids except where the subject matter is the acquisition of real property. The exception is made subject to two conditions: (1) that the Director act with the written approval of the State Treasurer, and (2) in accordance with appropriations made therefor. It is conceded that neither of the conditions has been satisfied. The question presented is whether these failures constitute a legal defense to the action.

That no appropriation was made for the proposed acquisition does, not bar the entry of a judgment against the State, even though its satisfaction may depend upon the willingness of the Legislature to accept the judgment and provide for payment. P, T & L Const. Co. v. Comm’r, Dept. of Transp., 55 N. J. 341, 346 (1970). It will not be assumed that a coordinate branch of government will be indifferent to the judgments of the courts.

Issues of a different order arise from the lack of written approval by the Stats Treasurer.

The requirement of competitive bidding reflects a legislative purpose to preserve to the State all the economic benefits of full and free competition and to guard against favoritism, improvidence, extravagance and corruption in the awarding of contracts. These statutes are enacted for the benefit of the taxpayers and should be construed with sole reference to the public good. Hillside Tp. v. Sternin, 25 N. J. 317, 322 (1957). However, in recognition that the inexpedience of this safeguard might sometimes outweigh its advantages, provision has been made sanctioning departures where defined justifications appear. In those cases the acquiescence of the State Treasurer is substituted to serve the prophylactic functioni provided by competitive bidding as a condition of the Director’s power to contract on behalf of the State. This does not suggest a legislative intent to abandon the goals and benefits advanced by the former procedure. Nothing, in fact, could more clearly reveal the Legislature’s continued preoccupation with those values than the plain and unambiguous mandate of section 8, by which the power of the Director to award contracts without competitive bids comes about only under carefully specified circumstances, and only where the designated official of cabinet rank confers his written approval.

Plaintiff’s argument that the only purpose of requiring written approval is to inform the State Treasurer as to the movement of all state funds is not convincing. If this is all that was intended it would have been sufficient for the Legislature to require only that’notice of such contracts be given to the State Treasurer, as it did for the State Auditor in N. J. S. A. 52:34-11, providing that:

Notice of such purchases, contracts or agreements made, negotiated or awarded under section 3 of this act [N. J. S. A. 52:34-8], and written approvals thereof, shall be given to the State Auditor.

By requiring his “approval” the lawmakers clearly intended to protect the public interest by drawing upon the judgment of the State Treasurer and validating the transaction only upon his watchful concurrence in the judgment of the Director. This condition is not merely a matter of form. Its fulfillment is vital to the very conception of any power in the Director to contract for the acquisition of property except after a public solicitation of bids. The court will not read this exception in the statute as having been intended to dilute the underlying policy of the law to the point that it is defeated. E. g., Suburban Golf Club v. State Highway Comm’r, 92 N. J. Super. 125, 134 (Law Div. 1966). We are governed by the rule that a public officer can make for the government he represents only such contracts or agreements expressed or implied as he is authorized to make. State v. Erie R. R., 23 N. J. Misc. 203, 213, 42 A. 2d 759 (Sup. Ct. 1945).

405 Monroe Co. v. Asbury Park, 40 N. J. 457 (1963), presents somewhat comparable facts. There a 25-year lease had been entered into pursuant to an ordinance passed by defendant municipality. Defendant, which at the time was under the control of the Municipal Finance Commission, sought to disaffirm on the ground of illegality arising from the enactment of the ordinance “without the assent in writing of the commission,” in the face of a statutory prohibition thereon. Although the defense was rejected by the court for deficiencies of proof in that case, the court’s language at pages 467-468 of the opinion is alive with the proposition that the failure to obtain “assent in writing” would have precluded formation of a contract.

From a detached view the result here reached should cause no offense to an equitable sense of justice. Even assuming its availability against a governmental agency, the prerequisites to an estoppel have not been proven. Certainly, no injurious change of position by plaintiff occurred in reliance upon the Director’s letter of May 11, 1973 to the date of its revocation on June 28, 1973. Furthermore, the limitations upon his authority can hardly be said to have been concealed from plaintiff's knowledge. As the court observed in State v. Erie R. R., supra:

‘Statutes delegating powers to public officers must be strictly construed, and all persons dealing with public officers must inform themselves as to their authority, and acts which are within the apparent but in excess of the actual authority of officers will not bind the government which they represent, unless ratified by it.’
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The defendant knew or should have known the limitation of the powers of the state’s agents. The rule is stated as follows in 59 Oorp. Jur. 173: ‘The powers of state officers being fixed by law, all persons dealing with such officers are charged with knowledge of the extent of their authority or power to bind the state and are bound at their peril to ascertain whether the contemplated contract is within the power conferred.’ [23 N. J. Misc. at 213]

Also see Driscoll v. Burlington-Bristol Bridge Co., 10 N. J. Super. 545, 569 (Ch. Div. 1950), mod. other grounds 8 N. J. 433 (1952), cert. den. 344 U. S. 838, 73 S. Ct. 25, 97 L. Ed. 652-53 (1952), reh. den. 344 U. S. 888, 73 S. Ct. 181, 97 L. Ed. 687 (1952); Hume v. United States, 132 U. S. 406, 414, 10 S. Ct. 134, 33 L. Ed. 393, 397 (1889); 81 C. J. S., States, § 113; 63 Am. Jur. 2d, Public Officers and Employees, § 271; e.g., 10 McQuillin Municipal Corporations (rev. vol. 1966), § 29.04.

No rigihts or relationships are projected by plaintiff's claim which merit vindication by a court of equity. It is an instance where the maxim prevails that equity follows the law.

Courts of equity may no more disregard statutory and constitutional requirements and provisions than can courts of law. They are bound by positive provisions of a statute equally with courts of law, and, where the transaction or the contract is declared void because not in compliance with express statutory or constitutional provision, a court of equity will not interpose to give validity to such transaction or contract or any part thereof. Wherever the rights of the parties are clearly governed by rules of law, courts of equity will follow such legal rules. [2 Pomeroy, Equity Jurisprudence § 425, at 189 — 190 (1941)]

Also see 1 Story’s Equity Jurisprudence § 64 (1918).

Plaintiff's motion for summary judgment, for the reasons given, is denied.


author: Gruccio, J. S. C.

text:
    EDWARD D. LORD, INC., A NEW JERSEY CORPORATION, PLAINTIFF, v. MUNICIPAL UTILITIES AUTHORITY OF THE TOWNSHIP OF LOWER CAPE MAY COUNTY, STATE OF NEW JERSEY, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided April 2, 1974.

      Mr. Les M. Hymerling for plaintiff. (Archer, Greiner and Read, Esquires).

      Mr. William M. Balliette, Jr., for defendant Municipal Utilities Authority of Lower Cape May Township (Cafiero and Balliette, attorneys).

      Mr. Lawrence E. Stanley, Deputy Attorney General, for defendant State of New Jersey (Mr. William F. Hyland, Attorney General of New Jersey, attorney).
   Gruccio, J. S. C.

Edward D. Lord, Inc. (Lord) instituted this suit in contract against the Municipal Utilities Authority of the Township of' Lower Cape May (M.U.A.) to recover the outstanding balance allegedly due from a contract for the construction of a sewerage treatment plant. Defendant has counterclaimed against plaintiff for the difference between the amount of a collusive subcontract and the real cost to plaintiff to obtain the electrical work. The State of New Jersey has intervened on behalf of defendant since state funds were used to finance the construction of the sewerage facilities. The United States Government has agreed to be bound by the decision of this court, since federal funds are involved. The litigants have stipulated to the material facts and to the amount of damages so that the issue of liability will be decided by this court sitting without a Pry.

M.U.A. was created in 1965 for the purpose of managing the installation of a sanitary sewerage system for Lower Cape May County. M.U.A., after conducting feasibility studies, applying for state and federal grants and engaging the firm of Van Note-Harvey Associates as consulting engineers, authorized bidding by the lump sum procedure in order to select the general contractor for the construction of the sewerage treatment plant. Of the two bids submitted, M.U.A. accepted the lower bid tendered by plaintiff Lord. Lord was awarded the contract for the sewerage treatment project on July 7, 1969.

This controversy arose out of the fraudulent conduct of two electrical subcontractors, Audubon Electric and Martin Electric Company. Prior to the awarding of the contract the two bidding general contractors, Lord and Edward Ellis, Inc., had requested and received quotations on the electrical work from the two electrical subcontractors. Both of the general contractors incorporated these quotations in order to arrive at their final lump sum bid. However, unbeknownst to the general contractors, the electrical subcontractors had covertly agreed to set their quotations well in excess of the actual cost plus a reasonable profit. In addition, they agreed to cross their bids to the general contractors so that the fraudulent quotations would be reflected in the lump sum bids of both general contractors.

Subsequently, Lord awarded the electrical subcontract to Audubon Electric. However, before Audubon commenced any of the electrical work Lord discovered the covert agreement between Audubon and Martin. Lord immediately notified M.U.A. and cancelled the subcontract with Audubon. Lord requested new bids, and R. C. Smith of Woodbury, New Jersey, was awarded the electrical subcontract at a price which amounted to a $113,416 reduction from Audubon’s fraudulent bid.

All work under the contract between Lord and M.U.A. has been completed and the M.U.A. has paid Lord the full contract price less the $113,416. Lord claims that this balance is owing under the original contract and asserts that any fraudulent conduct by its subcontractors does not affect the enforceability of the contract price based upon a lump sum bid.

Lord’s position is based upon the inherent risks and uncertainty of lump sum bidding. Basically, such a bid is wager because of the various unpredictable contingencies which the general contractor must weigh against the priority of submitting the lowest bid in order to obtain the contract at a reasonable profit. Plaintiff also asserts that the subcontractors’ fraudulent quotations were not binding bids but merely an informal estimate which is used by the general contractor in arriving at its own bid. Defendant M.U.A. and the State of New Jersey, Department of Environmental Protection, maintain that the $113,416 is essentially a windfall profit which was not a part of the bargain but which occurred because of this fraudulent activity. Therefore, it is asserted that this portion of the contract should not be enforced because it violates public policy. Plaintiff is entitled to compensation for the work performed, along with a reasonable profit, but Lord should not benefit from the fraud of its subcontractors.

The litigants have also stipulated to the amount of damages. In the event that Lord prevails, plaintiff’s recovery would be in the amount of $112,120.52, which represents the principal claim. If M.U.A. prevails, a judgment of $1,296 would be entered against plaintiff Lord, that amount representing an overpayment made by M.U.A. to plaintiff. In addition, the prevailing party will be responsible for any amount determined to be due Audubon in an action now pending before the bankruptcy court.

Erom the evidence present it is apparent that Lord and M.U.A. were both innocent of any malfeasance or knowledge of the fraud committed by the electrical subcontractors. Lord’s conduct, evidenced by its discovery and immediate disclosure to all pertinent parties, exemplified the highest form of business integrity. Conversely, there is no indication of any negligent or improper conduct on the part of M.U.Á. Therefore, the issue before this court is who between these two innocent parties should suffer a loss perpetrated by the fraud of the electrical subcontractors.

This unique factual situation presents this court with a novel and perplexing controversy on which there are no legal precedents in New Jersey. It is this court’s opinion, and the parties have orally stipulated on the record, that the fraudulent nature of this case requires the utilization of fundamental equitable principles in order to resolve this controversy.

In an action by the mortgagee against the mortgagor for payments which the mortgagor made to the mortgagee’s agent, who then fraudulently retained the payments, the court held chat between two innocent parties, the loss should be sustained by the one who first rendered the injury possible. Therefore, the mortgagee was held to be accountable for the payments stolen by bis agent. Zabriskie v. Mack, 132 N. J. Eq. 516 (Ch. 1942). And in an action by the mortgagee’s assignee against the mortgagor for foreclosure, the court stated that between two innocent parties, the loss should be sustained by the one whose conduct has made the fraud possible. Judgment was entered against defendant mortgagor who had innocently made the payments to the original mortgagee. Schultz v. Partrick, 110 N. J. Eq. 295 (Ch. 1932).

In cases dealing with fraudulent transfer of property, it has been generally held that where the real owner has placed the wrongdoer in the position where he could obtain the title necessary to perpetrate a fraud, he should suffer the loss. Elison v. Wilburn, 281 U. S. 457, 50 S. Ct. 382, 74 L. Ed. 962 (1932) ; Motor Credit Corp. v. Woolverton, 99 So. 2d 286 (Fla. Sup. Ct. 1957). Similarly, in situations where the complainants gave their agents opportunity to transfer property to innocent third parties, the court held against the principals responsible for placing the wrongdoer in a position of confidence and thereby making the loss possible. Stone v. Limouze, 111 N. J. Eq. 421 (E. & A. 1932); Parkview B. & L. Ass’n of Newark v. Rose, 90 N. J. L. 614 (E. & A. 1917).

Furthermore, in an action by an owner against a purchaser who purchased the real estate from a third party who had obtained the deed and recorded it pursuant to an agreement with plaintiff-owner, the court held for the defendant and ruled that the plaintiff was estopped from claiming title against the defendant. Moore v. Riddle, 82 N. J. Eq. 197 (Ch. 1913).

From the above decisions certain equitable maxims are exhibited which provide some assistance in resolving the issue raised by the case at bar. Therefore, between two innocent parties to a fraud, the loss should be borne by the party whose conduct made the fraud possible. Parkview B. & L. Ass’n of Newark v. Rose, supra; Hofstetter v. Bernett, 118 N. J. Eq. 143 (Ch. 1935); Schultz v. Partrick, supra; Lawson v. Carson, 50 N. J. Eq. 370 (Ch. 1892). In addition, it has been held that between two innocent parties to a fraud, the loss should be imposed upon the party whose act first could have prevented the fraud. Cambridge Acceptance Corp. v. American National Motors Inns, Inc., 96 N. J. Super. 183 (Ch. Div. 1967), aff’d 102 N. J. Super. 435 (App. Div. 1967.)

This fraud was perpetrated by two subcontractors. These wrongdoers were selected twice by plaintiff, first to submit quotations for its lump sum bid and later to bid for the electrical subcontract itself. Defendant M.U.A. had nothing to do with Lord’s selection, and since the quotations were not binding bids there appears to be no reason why Lord could not have selected some other electrical subcontractor for this project.

Plaintiff was in a more advantageous position to detect and thereby prevent the collusive bids. This is evident when the size of the total contract, over two million dollars, is compared to the relatively small electrical subcontract between Lord and Audubon. Furthermore, Lord, who is an experienced general contractor, possessed a greater and more comprehensive knowledge oí not only the construction trade but also of the prices and practices particular to Cape May. M.U.A., even with the benefit of the engineering consultants, would not possess the expertise required to detect the collusive bids. Clearly, if anyone should have made the discovery, it was the plaintiff, Lord, and not M.U.A.

Lord alleges that a judgment in M.U.A.’s favor would unjustly enrich defendants and place upon Lord the burden of the entire loss. However, it would be erroneous to state that a windfall has fallen to M.U.A., for it has only received what it has paid for, i. e., construction of a sewerage treatment plant. Likewise, Lord does not really suffer a loss, for in addition to its profit it has been adequately compensated for the services rendered to M.U.A.

Of paramount importance in this case is the fact that the public will be directly affected by the decision of the court. All of the monies which will go into this public project are either local, state or federal monies. The purpose of the bidding statutes is to protect the public interest. The entire procedure is designed to obtain the highest possible quality of work for the lowest possible cost. The avowed objects of bidding statutes are a protecting of public interest and yet fairly and adequately compensating private concerns for the work and services rendered to the utility. This purpose in the instant case can only be accomplished by a just payment equitably arrived at for work performed. The true intent of both of the parties is accomplished by denying Lord the relief he seeks. To do otherwise would in fact improperly, illogically and unjustly enrich him. No one, not even an innocent party, should be unjustly enriched, at the public expense, by fraudulent action.

It is, therefore, this court’s decision that plaintiff Lord should not receive a windfall which was caused by fraudulent third parties. In accordance with the stipulation of the litigants as to the amount of damages, judgment will be entered in favor of defendant M.U.A. in the amount of $1,296. The parties are also instructed to comply with the other provisions of their stipulation.


author: Kolovsky, P. J. A. D.

text:
    BOROUGH OF ELMWOOD PARK, FORMERLY BOROUGH OF EAST PATERSON, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. ROBERT E. FALLON, JR., DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued March 5, 1974
    Decided April 22, 1974.

      Before Judges Kolovsky, Feitz and Ceane.

      Mr. Stephen R. Spector argued the cause for appellant (Messrs. Ferrara, Glock & Spector, attorneys).

      Mr. Joseph L. Conn argued the cause for respondent (Messrs. Conn & Kluger, attorneys).

      Mr. William. F. Hyland, Attorney General of New Jersey, attorney for Civil Service Commission (Mr. George F. Kugler, Jr., former Attorney General of New Jersey, and Mrs. Erminie L. Conley, Deputy Attorney General, filed a Statement in lieu of brief).
   The opinion of the court was delivered by

Kolovsky, P. J. A. D.

After a hearing before the governing body, of the borough, respondent- Fallon, a police officer, was found -guilty., on several charges. ■ The penalty imposed was removal from office. Eallon appealed to the Civil Service Commission. Following a hearing before a hearing officer, at which Fallon elected not to testify, the Civil Service Commission found Fallon guilty of some but not all of the charges, concluded that removal was not warranted and substituted a penalty of six months suspension, effective January 6, 1912, the date Fallon was originally suspended pending a hearing on the charges against him.

The borough appeals, arguing that Fallon’s conduct and derelictions warranted his dismissal from the police department. We agree and reverse.

The record in this case consists only of the testimony offered by the borough in addition to admissions made by Fallon’s attorney at the hearing. On the record here, and in the absence of any testimony or explanation by Fallon, there is no warrant for not giving full credence to the evidence offered by the borough. As the court said in Wratchford v. Millburn Tp., 105 N. J. L. 651 (E. & A. 1929), in affirming the township’s dismissal of a police officer:

The omission of a party to an action to testify to facts or to produce evidence in explanation, except where the evidence is not peculiarly within his power, or is merely cumulative, raises a presumption against his claims, [at 658]

The first charge of which the Commission found Fallon guilty was that he had had in his possession and had transported across a state boundary line “a certain quantity of marijuana.” The proofs were that in February 1911, some two months after Fallon was appointed a police officer and while he was attending a police academy, he visited a rock concert in Massachusetts and brought back a glassine bag containing marijuana to show to a fellow police officer who bad never seen the substance. The latter officer, concerned? with the impropriety of possession of the marijuana, turned! it in to police headquarters. With respect to this charge, the Commission concluded:

Although appellant concedes he was in possession of a small portion of marijuana, the circumstances of that possession, a.) for the purpose of showing a fellow officer engaged in a Police Training Course which discussed that topic; b.) the fact that charges were never brought by either the officer or the Chief of Police, who were aware of that possession, and c.) the fact that marijuana is not a narcotic drug, convinced the Hearer that removal was too strong a penalty.

That marijuana is no longer classified, as it was prior to 1970 by N. J. S. A. 24:18-2(9), since repealed, as a narcotic drug, is of no moment and should have played no part in the Commission’s conclusion. Its possession is still prohibited. One possessing 25 grams or less thereof is a disorderly person; one possessing more than 25 grams is guilty of a high misdemeanor. N. J. S. A. 24:21-20. Nevertheless, in the circumstances shown, were this the only incident demonstrative of Eallon’s insensitivity to and disregard of his obligations as a police officer, “a special kind of public employee, [whose] primary duty is to enforce and uphold the law,” Moorestown Tp. v. Armstrong, 89 N. J. Super. 560, 566 (App. Div. 1965), certif. den. 47 N. J. 80 (1966), we would be inclined to agree that dismissal therefor, in the case of a then novice police officer, was too harsh a penalty.

- But that incident does not stand alone. Eallon’s conduct thereafter, on the two occasions when he left his post without authority, showed a continued insensitivity to and disregard of the obligations of his office which fully justified the borough’s determination that his removal as a police officer was warranted.

The Commission’s conclusion minimizes the seriousness of these derelictions by stating:

The appellant did, in. violation of police rules, leave his post without calling police headquarters. However, the location of his departure from his post, or the length of time, were not sufficient proof for this Hearer to gauge the seriousness of the offense.

■ The conclusion ignores the uncontroverted testimony as to the two incidents and the improper conduct of Eallon revealed thereby.

The first incident occurred on April 26, 1971 when Fallon was assigned to a walking patrol on the north side of Route 4. Without seeking permission or reporting his intent to police headquarters, Fallon left his post and entered the Patio Restaurant on the south side of Route 4 at about 5 p.m. on that day, remaining there for 15 to 20 minutes.

Unbeknownst to Fallon, Detective Gould was then in an office, adjacent to the restaurant, which was equipped with a “one way mirror which enables you to view the entire restaurant without being seen from anyone inside the restaurant.” He was stationed there to listen through a receiver to conversations between an undercover agent carrying “electronic surveillance equipment,” including a microphone, and one Timothy McGinnis, whom Gould had previously arrested for a narcotics violation.

According to Gould, Fallon approached McGinnis and the undercover agent and engaged them in a conversation, all of which Gould was able to hear via the electronic equipment. While Gould did not know whether Fallon was acquainted with the undercover agent, he was aware that Fallon knew McGinnis and of his prior arrests. Less than a week before, on April 20, 1971, Fallon, who had no connection with McGinnis’ arrest or prosecution, had asked Gould whether he had “received the results of a urine test” taken from McGinnis on the occasion of his arrest. Gould answered “no” and reported the incident to the chief of police.

In the conversation overheard by Gould, Fallon and Mc-Ginnis spoke of the latter’s arrest by Gould some weeks prior thereto and of an arrest of McGinnis made by another officer for driving while under the influence of narcotics. Fallon told McGinnis that his arrest by Gould was illegal since Gould didn’t have a search warrant or probable cause to make the arrest and that “it would be thrown out of court.”

As to McGinnis’ arrest for driving while under the influence of narcotics, Gould testified :

* * * apparently the ticket that was issued to Mm was issued in error, the date was wrong, and Patrolman Fallon told Timmy McGinnis not to let the police get a hold of his copy, that it’s possible that the ticket could be thrown out if the police were not aware of the incorrect date at the time of the trial.

Despite this uncontradicted testimony the Commission concluded :

There was insufficient first-hand testimony to lend credible support to the charge that appellant had conversed with questionable persons while on post or in any other fashion violated section 132(E) of the Rules and Regulations of the East Paterson [now Elmwood Park] Police Department. ■ — ■ —

A section of the regulations which, the borough’s resolution indicates, provides:

that a police-officer shall not converse with persons while on duty except on police business and then as briefly as possible.

However, we need not resolve whether Fallon’s conduct in the Patio Eestaurant violated the cited section of the regulations. What is significant is that such conduct was clearly at variance with, a police officer’s sworn duty and emphasizes the error of 'the Commission in treating Fallon’s admitted absence from his post on April 26, 1971 as a trivial offense.

The same is to be said of Fallon’s admitted absence from his post on the second occasion. The proofs showed that about 10:30 p.m. on October 23, 1971 Fallon drove his police automobile from the post at the south end of the borough to which he had been assigned to the home of George Mills located in the northerly end of the borough. Again Fallon had no authority to leave his post and failed to notify police headquarters that he was doing so or to note on his activity sheet that he had done so.

The uncontradicted testimony of Mr. Mills as to what transpired on that occasion underscores Fallon’s unfitness to continue as a police officer. Mills.testified that after Fallon had knocked on tire door and had been admitted:

A * * * He sat down and he made a statement to me saying that, “We didn’t know you lived here” and “We’re not going to rob your apartment now.”
Q Now, did you say anything to him after this statement was made to you? A Yes. Well, T was a little bit stunned and kind of asked him why he w-as on the force. And he gave me the feeling from what he was saying that —
MR. CONN: I’m going to object to any feelings.
THE WITNESS: Okay. Well then —
Q Just tell me exactly what he said.
A To the best of my recollection, he said, “It enables me to” —.

An objection, which was improperly sustained by the hearing officer, prevented the witness from detailing the balance of Fallon’s statement. But what was testified to is damning enough. After about 10 or 15 minutes Fallon left the apartment when the radio of his police automobile sounded a call for him.

Mills’ report of the incident to the chief of police, on the background of the previous incidents, triggered an investigation which culminated in an interview between the chief and Fallon on January 6, 1972. According to the chief:

I narrated all the specifics that 1 had [of the marijuana incident, the conversations in the Patio Restaurant overheard by Detective Gould, the report he had received from Mr. Mills and other incidents about which the Chief had some information] to Patrolman Fallon. I asked him if he would clear the air as to — that’s the words that I did use, to clear the air, and to clear the name of the department in view of the confidence that the public must have of us and to what did he have to say on it of which Patrolman Fallon never answered. He denied them with a smile on Ms face.

The chief asked Fallon to submit to a polygraph test “to cl< ar yourself and the department.” Fallon refused and the chief suspended him from duty.

We agree with the Commission that Fallon “was lawfully entitled to refuse” to submit to the polygraph test, and that his refusal afforded no basis for a disciplinary charge against him. However, the fact that the chief exceeded his authority in ordering Fallon to submit to a polygraph test did not prevent the borough from establishing by other evideuce, as it did, Fallon’s several derelieitions — derelictions which demonstrated an “attitude of mind and approach to the obligations of his office fundamentally at variance with his sworn duty.” Asbury Park v. Dept. of Civil Service, 17 N. J. 419, 429-430 (1955).

Apposite is what we said in Moorestown Tp. v. Armstrong, supra:

It must be recognized that a police officer is a special kind of public .employee. His primary duty is to enforce and uphold the law. He carries a service revolver on his person and is constantly called upon to exercise tact, restraint and good judgment in his relationship with the public. He represents law and order to the citizenry and must present an image of personal integrity and dependability in order to have the respect of the public, particularly in a small community such as Moorestown. [89 N. J. Super, at 566]

The decision of the Civil Service Commission is reversed and the municipal order of removal of Fallon from his office as patrolman in the borough’s police department is reinstated.


text:
    PATROLMAN’S BENEVOLENT ASSOCIATION OF MONTCLAIR, NEW JERSEY, LOCAL No. 53, PLAINTIFF, v. TOWN OF MONTCLAIR, A MUNICIPAL CORPORATION, AND THEODORE MacLACHLAN, DIRECTOR OF DEPARTMENT OF PUBLIC SAFETY, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided April 5, 1974.

      Mr. Andrew F. Zazzali, Jr. for plaintiff (Messrs. Zazzali and Zazzali, attorneys).

      Mr. Frank X. McDermott for defendants (Messrs. Apruzzese & McDermott, attorneys).
   Antell, J. S. C.

By its verified complaint plaintiff claims to be the representative “designated and selected” for all the police officers of the Town of Montclair for purposes of collective negotiation and seeks an order compelling defendant employer to negotiate in good’ faith as to terms and conditions of employment. The threshold question is whether plaintiff’s disputed status as negotiating representative may be resolved by the court without a prior exhaustion of administrative remedies.

The application is made under the New Jersey Employer-Employee Relations Act, N. J. S. A. 34:13A-1 et seq. Provision for ascertaining negotiating representatives is made in section 5.3 thereof in the following language:

Representatives designated or selected by public employees for tbe purposes of collective negotiation by the majority of the employees in a unit appropriate for such purposes or by the majority of the employees voting in an election conducted by the commission as authorized by tbis act shall be the exclusive representatives for collective negotiation concerning the terms and conditions of employment of the employees in such suit.

It is apparent that two alternatives are envisioned. The first merely requires that the exclusive representatives shall be whichever are “designated or selected” by the public employees. The other is more specific, leaving their selection to the outcome oí an election conducted by the Commission Public Employee Eelations. Plaintiff argues that since, under the first alternative, the statute is indefinite as to the mode by which the selection must be made, omitting any reference to Commission participation, the Legislature intended the supervised election as the sole administrative remedy obtainable from the Commission; that resort to the administrative process is therefore necessary only where the provision for a supervised election is invoked, and unnecessary where the exclusive representative has been, or will be, otherwise designated or selected. In this instance plaintiff maintains that no election is required; that its status as negotiating representative was achieved through organization membership by a majority of the employees and voluntary recognition thereof by the defendant within the sense of federal cases decided under the National Labor Relations Act, 29 U. S. C. A. § 151 et seq. Both bases for the claim are denied by defendant, and it is this dispute which the court is asked to resolve.

• The Legislature has declared as the public policy of this State that the best interests of the people are served by the voluntary mediation of public employer-employee disputes under the guidance and supervision of “a governmental agency.” N. J. S. A. 34:13A-2. Section 5.1(a) of the act establishes a Division of Public Employment Eelations, having as its exclusive concern matters of public employment related, among other things, to determining “negotiating units, elections, certifications * * *” (Emphasis supplied). Within the Division was created the New Jersey Public Employee Relations Commission, This body is charged with the duty of regulating and making policy for employer-employee relations in public employment, “including enforcement of statutory provisions concerning representative elections and related matters.” (Emphasis supplied). N. J. S. A. 34:13A-5.2. More specifically, the Commission is empowered

* * * resoiye questions concerning representation of public employees by conducting a secret ballot election or utilizing any other appropriate and suitable method designed to ascertain the free choice of the employees. [N. J. S. A. 34:13A-6(d), emphasis supplied]

Other paragraphs of the foregoing section vest the Commission with ancillary powers necessary to carry out its primary obligations. Various provisions of its regulations demonstrate that the Commission intended to exercise its full authority under the act and understands that its power to resolve representation questions goes beyond the mere conduct of an election. Under N. J. A. C. 19 :10-1.1 the “Representation Proceeding” is defined as

* * * a procedure under these rules and regulations for the purpose of determining the majority representative of employees, if any, in an appropriate collective negotiating unit or a question of controversy concerning the representation of public employees for the purpose of collective negotiations.

Nothing in the foregoing language suggests that the proceeding is limited to the conduct of an election.

The representation proceeding before the Commission is begun by the filing of a petition for certification by any public employee, group of public employees, or any individual or employee organization claiming to be the majority representative of public employees in an appropriate unit. N. J. A. C. 19:11-1.1. “Certification” is defined in N. J. A. C. 19 :10-1.1 as “the designation by the Executive Director or the Commission of the employee organization as the majority representative of employees in an appropriate unit.” N. J. A. C. 19:11 — 1.2 sets forth the required contents of the petition, and included therein is a “showing of interest as de>fined in Section 1.1 (Definitions) of this Subtitle of not less than 30 per cent of the employees in the unit alleged to be appropriate.” Some idea of the variety of ways, other than an election, by which the Commission has chosen to inform itself of the employees5 choice may be gathered from the following definition of “showing interest” as it appears in N. J. A. C. 19:10-1.1:

* * * a designated percentage of public employees in an allegedly appropriate negotiating unit, or a negotiating unit determined to be appropriate, who are members of an employee organization or have designated it as their exclusive negotiating representative or have signed a petition requesting an election for certification or decertification of public employee representatives. Such designations shall consist of written authorization cards or petitions, signed and dated by employees, aritiiorizing an employee organization to represent such employees for the purpose of collective negotiations or requesting an eleeiion for certification or decertification of public employee representatives ; current dues records; an existing or recently expired agreement ; or other evidence aj)proved by the Executive Director or the Commission.

By N. J. A. C. 19:11 — 1.12 the executive director of the' Commission is required to “resolve expeditiously” the question concerning representation in any one of a number of specified ways. N. J. A. C. 19:11-1.14 provides for recognition of the negotiating representative where enumerated criteria have been satisfied.

It is concluded from the foregoing review that the Commission is empowered to resolve representational disputes, not only through the instrumentality of an election but by any other appropriate method falling within the broad compass of section 5.3 so long as it is designed to ascertain the freo choice of the employees.

The rule requiring the prior exhaustion of administrative remedies rests on the premise that such remedy is “certainly available, clearly effective and completely adequate to right the wrong complained of.” Baldwin Const. Co. v. Essex Cty. Bd. of Taxation, 24 N. J. Super. 252, 274 (Law Div. 1952), aff’d 27 N. J. Super. 240 (App. Div. 1953). See also Mutual Home Dealers Corp. v. Comm’r of Banking & Ins., 104 N. J. Super. 25, 30 (Ch. Div. 1968), aff’d 55 N. J. 82 (1969). Of course, circumstances may sometimes appear in particular eases which would justify detouring the administrative agency. As Chief Justice Hughes, then a judge of the Superior Court, wrote in Baldwin, supra:

Traditionally, the former prerogative writs quickened where justice pointed to the urgency of relief and the futility of the administrative process, as where the jurisdiction of the statutory tribunal was questioned short of final judgment (Schwartz v. Essex County Board of Taxation, 130 W. J. L. 177 (E. & A. 1943)) ; where a constitutional question existed, insoluble in the administrative forum (Schwartz v. Essex County Board of Taxation, 129 N. J. L. 129, supra) ; where the facts and the applicable law were clear (Lane v. Bigelow, 135 N. J. L. 195 (E. & A. 1947)) ; where a pure legal question existed (Conaway v. Atlantic City, 107 N. J. L. 404 (Sup. Ct. 1931)) ; where the statutory remedy was not final and effective (as to accomplish an ouster from office) (Koven v. Stanley, 84 N. J. L. 446 (Sup. Ct. 1913)); where “important principles of law” required a prompt “judicial construction” (State v. Betts, 24 N. J. L. 555 (Sup. Ct. 1854)). [24 N. J. Super, at 274]

That the wholesome policy favoring resort to administrative remedies may not be lightly disregarded is demonstrated by the action 'of the court in Essex Council #1, N. J. Civ. Serv. Ass’n v. Gibson, 118 N. J. Super. 583 (App. Div. 1972). Although expressing its inclination to favor the substantive determination made by the trial court on the merits of the controversy, it nevertheless reversed on the ground that such a determination should not be made in the first instance by a trial court if the expertise of an administrative agency is available. It was further observed that the interests of justice did not there dictate the extraordinary course of hy•passing administrative remedies made available by the Legislature.

In the ease at hand it certainly cannot he said that the administrative remedy is not “certainly available, clearly effective, and completely adequate to right the wrong complained of,” or that the interests of justice, tested by the sampling of standards catalogued in Baldwin, supra, dictate that the facts presented be treated as an exception to the rule. The relief sought is recognition of plaintiff’s representative status, and this by statute and regulations promulgated thereunder is fully within the power of the Commission to grant. The administrative remedy is therefore altogether viable. In this respect the case is different from P. B. A. #208 v. Camden Cty. Bd. of Freeholders, 124 N. J. Super. 119 (Law Div. 1973), where the court specifically stated (at 123) that its exercise of jurisdiction to compel adherence by the public employer with the New Jersey Employer-Employee Relations Act was based upon its judgment that the unfair labor practice there involved lay beyond the reach of any available administrative remedy.

Gases cited by plaintiff supporting the view that representative status may be achieved by an employee organization as the result of voluntary recognition by the employer, i. e., N. L. R. B. v. Frick Company, 423 F. 2d 1327 (3 Cir. 1970); N. L. R. B. v. Broad Street Hosp. & Med. Center, 452 F. 2d 302 (3 Cir. 1971), do not treat the narrow question presented as to whether the court may adjudicate the claim of voluntary recognition where it has not first been dealt with by an administrative tribunal. In the cases cited the opinions were based upon records brought up on review of administrative action.

The order to show cause will be denied for failure to exhaust available administrative remedies. Submit order consented to as to form or to be settled on notice.