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McCurrie v. Town of Kearny

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 20, 2001

Robert M. Czech held the positions of municipal clerk and administrator for the Town of Kearny for a three-year term to expire on July 17, 1998. At a special meeting of the Town Council (Council) on December 31, 1997 a resolution was passed accepting Czech’s resignation from his positions in return for payment to him of $27,500, plus accrued vacation time and other employment benefits. In a subsequent resolution Council also authorized reimbursement to Czech for his costs to defend this lawsuit. Plaintiffs, a group of taxpayers, filed this action pursuant to N.J.S.A. 2A:49-1 to -3,*fn1 to challenge Council’s actions, arguing that an ordinance, rather than a resolution, was required to effectuate the resignation agreement. The Law Division agreed and vacated the resolution, holding that the money paid to Czech for his resignation was the equivalent of a salary which had to be fixed by ordinance. The court ordered Czech to repay the money, but ruled that it was permissible for Czech to receive reimbursement for counsel fees he incurred to defend this suit. We disagree with the judge’s conclusion that the consideration paid to Czech for terminating his employment was salary. We also find Czech has neither a statutory nor common-law right to counsel fees under the facts of this case. Accordingly, we reverse on both issues.

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