                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-3729-15T4

CITY COUNCIL OF THE CITY
OF ORANGE TOWNSHIP,                     APPROVED FOR PUBLICATION

                                             June 19, 2018
     Plaintiff-Respondent,
                                          APPELLATE DIVISION
v.

WILLIS EDWARDS III,

     Defendant-Appellant.
_____________________________

         Argued May 2, 2018 – Decided June 19, 2018

         Before Judges Alvarez, Currier, and Geiger.

         On appeal from Superior Court of New Jersey,
         Law Division, Essex County, Docket No.
         L-1805-13.

         Michael A. Cifelli argued the cause for
         appellant   (Florio    Kenny   Raval,  LLP,
         attorneys; Michael A. Cifelli and Edward J.
         Florio, of counsel and on the briefs;
         William J. Maslo, on the briefs).

         Robert L. Tarver, Jr., argued the cause for
         respondent (Law Offices of Robert L. Tarver,
         Jr., attorneys; Jeff Thakker, of counsel and
         on the brief; Robert L. Tarver, Jr., on the
         brief).

     The opinion of the court was delivered by

CURRIER, J.A.D.
      In    this     matter,        we   consider        whether      the    appointment        of

defendant Willis Edwards III to the position of Deputy Business

Administrator in the City of Orange Township (City) was unlawful

and   whether      defendant        knowingly       remained         in    the   unauthorized

position.       If so, we must determine whether disgorgement of

defendant's salaries is the appropriate remedy for the illegal

action.

       We   conclude,         upon       review    of     the      record    and   applicable

principles of law, that the appointment was ultra vires because

the   mayor     lacked        the    authority          to    place       defendant      in    the

position.     As defendant was aware that serving in the position

was a violation of state and local law, he did not act in good

faith in remaining in the position and collecting a salary.

Therefore,      we      are    satisfied          that       the    equitable      remedy       of

disgorgement       is     appropriate        under        these      circumstances.             We

affirm.

      In July 2012, the mayor of the City1 appointed defendant to

the   position       of   Acting         Business       Administrator.             The    City's

ordinances permitted defendant to hold the position for a term

not to exceed ninety days; the appointment did not require the

advice and consent of City Council.                          At the end of defendant's


1
    The mayor at the time of                       these      events       was   an   attorney
practicing law in this state.



                                              2                                          A-3729-15T4
ninety-day       term,      the    mayor    appointed      him    to    the   full-time

position of Business Administrator, which did require the advice

and consent of City Council.

       The municipal government of the City is organized as a

"Mayor-Council Plan D" form of government under the Faulkner

Act, N.J.S.A. 40:69A-1 to -210. This Act, in conjunction with

City ordinances, requires persons appointed to the position of a

department director, such as the Business Administrator, receive

the advice and consent of City Council.                      On October 2, 2012,

plaintiff,       City       Council    of    the    City     of    Orange      Township

(plaintiff       or   City     Council),     voted    against          confirmation     of

defendant    to       the     position.      The    following      day,       the   mayor

appointed defendant as Deputy Business Administrator, setting a

yearly salary of $105,000.2

       City Council objected to the appointment.                       A letter to the

mayor on October 16, 2012 memorialized City Council's objections

and    informed         him       defendant's      term     as     Acting      Business

Administrator had expired and the Council had not confirmed him

as    Business    Administrator.            The    mayor    had    no     authority    to

appoint a deputy; only the department head had that authority.


2
   He received an additional stipend of $10,000 for his service
as Affirmative Action Officer.   At the time of his resignation
on December 31, 2015, defendant's compensation had increased to
$120,000.



                                             3                                  A-3729-15T4
Nevertheless,    defendant     continued     in   the   position,    signing

official documents as the Business Administrator and collecting

a salary.

     In March 2013, plaintiff presented an Order to Show Cause

and verified complaint against the mayor3 and defendant, seeking

to   enjoin     defendant      from   serving      as    Deputy     Business

Administrator.      A March 8, 2013 order required defendant and the

mayor to appear and show cause why the court should not issue a

preliminary injunction.        Defendant filed an answer and third-

party   complaint    against   five   City   Council    members     in   their

individual and official capacities.

     After oral argument, the court issued an order on April 18,

2013, stating:

                 1. [Defendant] shall not perform any of
            the functions of Business Administrator or
            Acting Business Administrator after May 30,
            2013, unless appointed to those positions
            through the advice and consent of City
            Council.

                 2. On or before the date of May 30,
            2013, the City of Orange Township shall
            appoint a Business Administrator or Acting
            Business    Administrator   to   head   the
            Department of Administration as required by
            Statute and Ordinance.




3
   On the eve of trial, the parties stipulated to the dismissal
of the mayor from the lawsuit.   Therefore, we refer to Willis
Edwards III as defendant.



                                      4                              A-3729-15T4
                  3. The City shall be required to comply
             with . . . N.J.S.A. 40:69A-43.1 and 43.2 in
             the appointment of any Deputy Director and
             any such appointment shall be made by the
             Director of the Department and the salary of
             that Deputy must be approved by the City
             Council.

                  4. The Counterclaim and Third Party
             Complaint filed by [d]efendant . . . shall
             be   dismissed  in  its   entirety without
             prejudice.

As   a    result   of   this    order,    defendant    subsequently       left      the

position      of   Deputy      Business       Administrator      and    the      mayor

appointed him Chief of Staff.4

         Defendant and the mayor filed motions for reconsideration,

which were granted by a different judge than had considered the

Order to Show Cause.           On February 28, 2014, in an oral decision,

the second judge found it improper for his predecessor to have

issued      injunctive    relief     without       hearing       testimony.          He

therefore     vacated    paragraphs       one   and   two   of    the   April     2013

order, and amended paragraph four to reinstate one count of the

third-party complaint.

         Following the ruling, plaintiff's counsel queried: "Judge,

just so that I'm clear and I get this, . . . is it the [c]ourt's

intention by vacating [c]ounts 1, 2 and 4 that Mr. Edwards can

now serve as the deputy business administrator because . . .

4
   Defendant received the same salary for Chief of Staff as he
was paid as Business Administrator.



                                          5                                   A-3729-15T4
that   was    the    thrust    of     the    initial        complaint."        The   judge

responded: "The effect of the order vacating [the prior] order

does just that.           The factual effect of it, you know, remains to

be executed.         All I did was vacate the order based upon the

reasons I stated."          (Emphasis added).           Following the issuance of

this order, defendant re-assumed the position of Deputy Business

Administrator.

       Trial5     was     scheduled    for        January    4,     2016   before    Judge

Christine A. Farrington.              Defendant resigned from the position

of Deputy Business Administrator on December 31, 2015.                                 As a

result,      he   contended     the     matter       was     moot    and     requested      a

dismissal.6

       Testimony at trial from a current councilwoman corroborated

City   Council's        rejection     of     the    appointment       of   defendant        as

Business Administrator and that a City ordinance required the

mayor to remove acting persons after ninety days if the Council

did    not   approve       them.       The    councilwoman          also     advised    the

appointment of defendant as Deputy Business Administrator was

contrary     to     the    municipal       ordinance.         Only     the    head     of   a


5
    A trial initially began in September 2015.  After opening
statements, the parties entered into a settlement agreement.
Shortly thereafter, material terms of the agreement were
breached, and the court vacated the settlement.
6
    The court reserved decision on the motion.



                                              6                                  A-3729-15T4
department could appoint a deputy director.                       The mayor had no

authority to appoint a Deputy Business Administrator.                             That was

the province of the Business Administrator.

       The councilwoman further stated that even when defendant

briefly left the position pursuant to court order and assumed

the job of Chief of Staff, he continued to perform duties of the

Business     Administrator.          Finally,       the    councilwoman       confirmed

City Council did not approve defendant's salary, which exceeded

the salary of other deputies by $25,000 to $30,000.

       Plaintiff's second witness, the municipal clerk, testified

that the position of Deputy Business Administrator had never

been     lawfully    created.        A      position      of    Assistant         Business

Administrator was created in 1985 but repealed that same year.

Therefore, the positions of both Deputy and Assistant Business

Administrator       were   unlawful      after      that       time.        She    further

advised the City had never enacted an ordinance creating a Chief

of Staff, and it did not approve the salary of defendant in that

post.7

       Defendant also testified.                In addition to his Bachelor of

Arts     degree,    he   holds   a   dual       Masters   degree       in   finance     and

business management from Columbia University.                      He was currently


7
    The clerk acknowledged that previous people have held the
title of Chief of Staff.



                                            7                                     A-3729-15T4
pursuing his MBA from New Jersey Institute of Technology and was

a   Ph.D.   candidate     at   Seton   Hall   University.       Defendant    had

served as a New Jersey state legislator and on numerous boards

in both New York and New Jersey.            Defendant advised as a college

professor    for   more   than   twenty     years,   he   was   familiar    with

municipal government because he taught courses in government and

public administration.

       Defendant's testimony conflicted on whether he ever read

the pertinent statutes and municipal ordinances regarding his

position.     At times, defendant testified he did not read the

applicable ordinances and statutes, at other times, he thought

the statutes, codes, and court orders were subject to differing

interpretations.      He was adamant the mayor appointed him to the

position, thus rendering defendant blameless for any wrongdoing,

and claimed ignorance of the unlawfulness of his position.                     He

also denied knowledge of his removal from the position by court

order or that the Deputy Business Administrator position was

unauthorized.

       In    a     comprehensive,       well-reasoned       opinion,       Judge

Farrington determined defendant's appointment to the position of

Deputy Business Administrator was ultra vires in the primary

sense as the mayor had no authority to appoint a Deputy Business

Administrator. She stated the actions of defendant and the mayor




                                        8                              A-3729-15T4
were     purposeful      and    designed           to    circumvent         City    Council's

decision to deny confirmation.

       Judge Farrington found both the councilwoman and municipal

clerk    knowledgeable         and    credible.               In    contrast,      the     judge

described defendant as "argumentative, combative and evasive."

She     noted     his    "impressive           education           credentials"     and       his

background       of     serving      as    a       state      legislator      and       college

professor conflicted with his numerous declarations that he did

not     understand      questions         posed,        was    ignorant      of     the      City

ordinances and applicable statutes, and had a lack of knowledge

and recall.

       Judge Farrington further concluded defendant was a de facto

officer and he had not rendered his services in good faith as

either    the    Deputy    Business        Administrator             or   Chief    of     Staff.

Reiterating that defendant was not credible, the judge found, in

light    of     his   extensive      experience          working       in   government        and

advanced degrees in public administration, "[h]is attempts to

present himself as an innocent party and cast blame for the

appointments on the [m]ayor are unconvincing and disingenuous.

. . . [H]e knew or had the ability to know the requirements of

state and local law."

       The judge concluded disgorgement of defendant's salary was

the appropriate remedy for his deliberate and knowing actions.




                                               9                                        A-3729-15T4
Because defendant intentionally violated the statutes and City

ordinances,    she    rejected      defendant's     contention        that    he    was

entitled to his salary under a quantum meruit theory.                       The court

ordered remuneration for all salary defendant received serving

in the unauthorized position of Deputy Business Administrator.8

       "Final determinations made by the trial court sitting in a

non-jury    case    are   subject    to    a    limited    and    well-established

scope of review."         D'Agostino v. Maldonado, 216 N.J. 168, 182

(2013) (quoting Seidman v. Clifton Sav. Bank, SLA, 205 N.J. 150,

169 (2011)).        Although our review of legal determinations made

by the trial court is de novo, we do not disturb the factual

findings of the trial court "unless we are convinced that they

are so manifestly unsupported by[,] or inconsistent with[,] the

competent, relevant[,] and reasonably credible evidence as to

offend the interests of justice."                Ibid. (quoting Seidman, 205

N.J.   at   169).     Additionally,        we   defer     to   the   trial    court's

credibility determinations, because it "'hears the case, sees

and observes the witnesses, and hears them testify,' affording

it 'a better perspective than a reviewing court in evaluating

the veracity of a witness.'"              Gnall v. Gnall, 222 N.J. 414, 428

(2015) (quoting Cesare v. Cesare, 154 N.J. 394, 412 (1998)).


8
    Plaintiff did not seek             the      return    of     salaries    paid   to
defendant as Chief of Staff.



                                          10                                 A-3729-15T4
      On appeal, defendant argues the court erred in determining

his conduct was ultra vires or, if it was ultra vires, it was

not an act in the primary sense because City Council ratified

his   conduct     in   approving   yearly     budgets       that    included      his

salary.

      Two forms of ultra vires acts exist under the law: ultra

vires acts in the primary sense and ultra vires acts in the

secondary    sense.      See   Middletown     Twp.    Policemen's         Benevolent

Ass'n Local No. 124 v. Twp. of Middletown, 162 N.J. 361, 368

(2000).   Ultra    vires   acts    in   the       primary   sense    are     "act[s]

utterly beyond the jurisdiction of a municipal corporation" and

are void.       Ibid. (quoting Summer Cottagers' Ass'n v. City of

Cape May, 19 N.J. 493, 504 (1955)).               In contrast, an ultra vires

act in the secondary sense arises from the "irregular exercise

of a basic power under the legislative grant in matters not in

themselves      jurisdictional.    .     .    .    [It]     does    not     preclude

ratification or the application of the doctrine of estoppel." 9

Ibid. (quoting Summer Cottagers' Ass'n, 19 N.J. at 504).




9
    The doctrine of equitable estoppel, however, is "applied
against a municipality only in very compelling circumstances,"
Maltese v. Twp. of N. Brunswick, 353 N.J. Super. 226, 244 (App.
Div. 2002), and is "rarely invoked against a governmental
entity."  Twp. of Middletown, 162 N.J. at 367 (quoting Wood v.
Borough of Wildwood Crest, 319 N.J. Super. 650, 656 (App. Div.
1999)).



                                        11                                  A-3729-15T4
      As did the trial court, we employ a two-step analysis in

reviewing     the      validity      of    a        government     appointment.          See

Casamasino v. City of Jersey City, 158 N.J. 333, 347 (1999).

First, we must determine whether the appointment was ultra vires

and, if so, whether it was in the primary or secondary sense.

Ibid.       Second,     if    the    appointment         was     ultra    vires    in    the

secondary sense and can be ratified, then we must determine

whether     the   appointment        was    "made       with    the    same    formalities

required for the original exercise of power"                             and, thus, was

properly ratified.           Ibid.

      For a municipal decision or action to be considered ultra

vires in the primary sense, the municipality must be "utterly

without capacity to perform the act or make the appointment."

Maltese, 353 N.J. Super. at 246 (quoting Casamasino, 158 N.J. at

347).     "[A] void act results where the public officer has no

authority to act at all."                  Independence One Mortg. Corp. v.

Gillespie, 289 N.J. Super. 91, 94 (1996).                        In comparison, an act

is   ultra    vires     in    the    secondary         sense     when    the    action    is

generally within the power of the municipality but was carried

out improperly or irregularly.                 See ibid.

      The    appointment       of    a     Deputy       Business       Administrator     is

controlled        by   N.J.S.A.       40:69A-43.1,             which     provides:      "The

director of each department . . . may appoint a deputy director




                                               12                                 A-3729-15T4
of   his    department     who    shall   serve,     and     be    removable   at    the

pleasure       of    the   director."          The   power    to     appoint    deputy

directors is, therefore, solely vested in the directors of the

departments, not the mayor.

       Here,    the     mayor    nominated     defendant     to     the   position    of

Acting Business Administrator.                This appointment was within his

authority.          See N.J.S.A. 40:69A-43(b) ("Each department shall be

headed by a director, who shall be appointed by the mayor with

the advice and consent of the council").                   The corresponding City

ordinance provides the mayor's department head appointments must

have the advice and consent of City Council.                      Orange, N.J., Code

§ 4-24(A) (2015).

       Plaintiff voted to reject the nomination of defendant as

Business Administrator on October 2, 2012.                        The mayor did not

appoint anyone else to fill that position.10                       Instead, the next

day,   in    circumvention        of   City    Council,      the    mayor   appointed

defendant to the position of Deputy Business Administrator in

violation of both state and local law as the power to appoint

deputies lies with the department director.                        See Orange, N.J.,


10
   Section 4-24(A)(4) of the City Ordinances requires the mayor
to appoint a new person to a department director position when
City Council "declines to extend the timeframe within which the
person is serving in an acting capacity or directly rejects the
person." Orange, N.J., Code, § 4-24(A)(4) (2015).




                                          13                                   A-3729-15T4
Code § 4-24(C)(1) (2015) (authorizing the department director to

"appoint    subordinate          officers        and    employees      within     his/her

department");       N.J.S.A.          40:69A-43-1       (permitting      a    department

director    to    appoint        a     deputy      director     who    serves     at    the

director's pleasure).

    The     mayor    acted       outside        the    bounds   of    his    statutorily

prescribed authority, exercising instead a power only vested in

the director of a department.                      As there was no authority for

defendant    to     serve        in     the     deputy     position,        the   mayor's

appointment of a deputy was an illegal act — an act that was

ultra vires in the primary sense and, therefore, void.

    We find defendant's argument that he accepted the position

of Deputy Business Administrator in good faith and with the

"reasonable understanding" that the mayor had the authority to

appoint him to the post disingenuous.                       Defendant is a highly

educated man who had served in the state legislature and taught

college     courses         in         municipal         government         and    public

administration.       He acknowledged having reviewed the Faulkner

Act, N.J.S.A. 40:69A-1 to -210, and the City ordinances that

pertained to his employment.

    Defendant       also    knew       of     City     Council's     objection    to    him

serving in the deputy position.                    If there was any doubt, it was

certainly alleviated when he was named as a defendant along with




                                              14                                  A-3729-15T4
the mayor in plaintiff's application for injunctive relief and

Order to Show Cause.                  He was in court during the Order to Show

Cause ruling and was directed in the April 2013 order to step

down    from        the    deputy         position      as    his    appointment         was     in

violation of section 4-24(A)(4) of the City ordinances.

       Following the April 2013 order, defendant was removed from

the deputy job and appointed as Chief of Staff, evidencing an

awareness      by        him    and    the      mayor    of    the    illegality         of     his

appointment.          Although certain portions of the April order were

vacated in a subsequent reconsideration, the provision ordering

the City to comply with the statute's regulations concerning the

appointment         of    a    deputy      director      remained         in   effect.         That

provision directed any appointment of a deputy director be made

by   the   director            of   the    department        and    the    salary     for      that

position be approved by City Council.                         Nevertheless, in February

2014,   in     contravention              of   this   order,       defendant     resumed       the

position       of     Deputy        Business      Administrator.               Any   claim       of

ignorance      of     the       applicable       laws    is    defeated        by    the    ample

divergent evidence in the record.

       The record is bereft of any facts to support defendant's

contention that plaintiff ratified his actions at any point.

The filing of a lawsuit to enjoin his continued employment is

more than sufficient to defeat that argument.                              His position that




                                                 15                                      A-3729-15T4
plaintiff's passage of a budget affirmed his salary and ratified

his actions is also without merit.            Witnesses at trial confirmed

the budget did not contain line items for specific salaries; it

set a budget for each department and the mayor then determined

the salaries for personnel.

      Judge Farrington also rejected defendant's argument that he

should   retain    his   salary   based       upon   the   de   facto    officer

doctrine.11    This doctrine, based on considerations of policy and

public    convenience,       recognizes       the    validity       of   actions

undertaken    by   a   person   who   acted    in    a   legally    non-existent

position.     See Jersey City, 57 N.J. Super. at 27.               In that case,

11
     A de facto officer is:

            one whose acts . . . will hold valid so far
            as they involve the interests of the public
            and third persons, where the duties of the
            office were exercised,

                   . . . .

                 . . . under color of a known election
            or appointment, void because the officer was
            not eligible, or because there was a want of
            power in the electing or appointing body, or
            by reason of some defect or irregularity in
            its exercise, such ineligibility, want of
            power, or defect being unknown to the
            public.

            [City of Jersey City v. Dept. of Civil
            Serv., 57 N.J. Super. 13, 27 (App. Div.
            1959) (quoting State v. Carroll, 38 Conn.
            449, 471-72 (Sup. Ct. Err. 1871)).]




                                      16                                 A-3729-15T4
we considered the consequences of the actions of a person who

"had the reputation of being a public official and possessing

the   authority     purportedly        vested      in   such     position"       but      who

served in a position that had no de jure existence.                           Id. at 28.

Because the faux official's actions could affect third parties,

we determined she would be considered a de facto officer and her

actions deemed valid despite the absence of a de jure office.

Ibid.      Under the circumstances here, in light of defendant's

performance    of    duties    under     the       guise   of    the       City's    Deputy

Business Administrator, we deem he was properly considered a de

facto officer.        The doctrine is appropriately applied here to

protect    innocent    third     parties          who   relied        on   the   acts       of

defendant    holding    himself       out    as     having      the    authority       of    a

public officer.        See, e.g., Casamasino, 158 N.J. at 349-51;

Jersey City, 57 N.J. Super. at 27.

        Defendant testified as Deputy Business Administrator he

presented resolutions to City Council for its approval, reduced

spending    and     salaries,        consolidated       departments,          eliminated

contractors,       entered    into     contracts        with     third      parties       and

approved invoices, proposed a bond ordinance and infrastructure

reinvestment, and worked with the governor and legislature on

grants.       He    advised     he    was        instrumental         in   obtaining        an

appropriation from the legislature of several million dollars




                                            17                                      A-3729-15T4
for needed infrastructure repairs and operational needs of the

city.     Clearly, the official acts defendant performed in his

public office capacity must be valid and binding as to third

parties and the public.            Any other conclusion would create chaos

and uncertainty for all dealings defendant had with others under

color of a legal authorized position.                  See Slurzberg v. Bayone,

29 N.J. 106, 139 (1959) (work done for a municipal office not

created, or properly filled, by ordinance or statute is void

regardless       of    whether     the     City    accepts    that   office's       work

product).

       We disagree, however, with defendant's contention that his

status    of     a    de   facto    officer       entitles    him    to    retain    the

compensation he received for the services he rendered on behalf

of the City.          He argues "clear interests of justice, morality

and common fairness" entitle him to retain his salary.                       However,

the issue of the validity of his acts performed as a purported

public official is distinct from his entitlement to retain his

salaries.

       Inherent in a decision to compensate a de facto officer for

his services is the tenet that such services were rendered in

good    faith.        "[A]   de    facto    officer    may,    by    his   good-faith

rendering of services, acquire rights against the municipality"

entitling him to compensation.                   Jersey City, 57 N.J. Super. at




                                            18                                A-3729-15T4
37.     A de facto officer carries the burden of showing he acted

in good faith and is thus entitled to compensation.                  See id. at

37-38; Casamasino, 158 N.J. at 349-51.                 Our determination that

defendant's actions in accepting and holding the deputy post

were ultra vires in the primary sense negates any proposition

that he was acting in good faith.                To the contrary, the record

is     replete   with    evidence   of        defendant's    awareness   of    his

unlawful employment.

       Although defendant did not raise N.J.S.A. 40A:9-6 to either

the trial judge or this court in support of his argument, we

feel it important to briefly address it.                    That statute, which

codified the common law definition of de facto officer provides:

                   Any person who has held or who may
              hereafter hold, de facto, any office or
              position in the public service of any county
              or municipality, and who has or shall have
              performed the duties thereof, shall be
              entitled to the emoluments and compensation
              appropriate to such office or position for
              the time in fact so held and may recover
              therefor   in   any    court  of   competent
              jurisdiction, notwithstanding any refusal or
              failure of any other person or officer to
              approve or authorize the payment of said
              emoluments and compensation.

              [N.J.S.A. 40A:9-6.]

We do not find our decision to disgorge defendant's compensation

despite his status as a de factor officer to be incompatible

with    the   statute.     The   common        law   precedent   permitting    the




                                         19                              A-3729-15T4
compensation for services performed by a de facto officer is

premised on the qualification that the services were rendered in

good faith.         See Jersey City, 57 N.J. Super. at 37-38.                      Here,

defendant's "actions do not bespeak the good faith required to

invoke the rule of fairness and justice which underlies the

grant   of    compensation      to     a    de    facto    officer."       O'Connor    v.

Calandrillo, 117 N.J. Super. 586, 596 (Law Div. 1971), aff'd,

121 N.J. Super. 135 (App. Div. 1972).

    To remain consistent, we similarly conclude the equitable

theories of quantum meruit and equitable estoppel are equally

unavailable        to   defendant.          In    her    thorough      decision,   Judge

Farrington considered these doctrines offered by defendant to

support      the    retention   of         his    salary.        She   concluded    such

defenses were inapplicable to defendant who acted willfully and

unlawfully, "with knowledge and at [his] peril to circumvent the

authority of the Council."             Concluding "the services rendered by

Edwards      in     conjunction        with       both     the    Deputy    [Business]

Administrator and chief of staff positions were not rendered in

good faith," she determined there was "no interest of justice,

morality     or     common   fairness         which      would   dictate    a   finding

Edwards      is     entitled      to        retain        his    salary    under      the

circumstances."




                                             20                                 A-3729-15T4
       Equitable         estoppel    and     quantum       meruit        are     equitable

doctrines reserved for achieving fair and practical resolutions

in    particular     circumstances.           See     Rutgers    Cas.     Ins.     Co.    v.

LaCroix, 194 N.J. 515, 529 (2008) (holding a court has the power

to adapt equitable remedies to the particular circumstances of a

case).       We    are    satisfied    the      circumstances       to    support       such

equitable remedies are not present here as there is sufficient

evidence in the record for Judge Farrington's factual findings

that defendant lacked credibility and he knew, or should have

known, of the illegality of his appointment.

       The   trial        court     ordered      disgorgement        of        defendant's

salaries      earned        while     serving         as   the      Deputy        Business

Administrator.           Disgorgement is an equitable claim "grounded in

the    theory      that     a    wrongdoer      should     not   profit          from    its

wrongdoing regardless of whether the innocent party suffered any

damages."     Cty. of Essex v. First Union Nat'l Bank, 186 N.J. 46,

61 (2006).        It is a harsh remedy and one to be used sparingly.

       In First Union, the Supreme Court noted the need for strong

remedies,     including         disgorgement     of    wrongfully        paid    fees,    to

combat unlawful conduct involving public officials.                             Id. at 58.

The remedy has also been successfully invoked when we found a

conveyance of land was ultra vires and void ab initio.                                  First




                                           21                                     A-3729-15T4
Am. Title Ins. Co. v. Twp. of Rockaway, 322 N.J. Super. 583, 594

(App. Div. 1999).

       Defendant conceded knowledge of municipal law and public

administration, agreed he reviewed the applicable statutes and

City ordinances, and advised he was aware of two court orders

stating       he   was    illegally       serving      as    the     Deputy     Business

Administrator.           Nevertheless, he remained in the position and

took a salary paid out of taxpayer funds.                        His blatant disregard

for the law forced plaintiff to litigate this matter for three

years, resulting in the not unexpected conclusion that defendant

acted     unlawfully         in      serving      as        the      Deputy     Business

Administrator.

       Defendant has not demonstrated any factual dispute in the

events surrounding his appointment, nor any ambiguity in the

controlling statutes.             As a result, his actions were inexcusable

and he displayed a flagrant contempt for the citizens of the

City    and    the   law.     The     sole      remedy      to    make   the   aggrieved

taxpayers whole is to disgorge defendant of the monies paid to

him    during      his   service     in   the     unlawful         appointment.       We,

therefore, affirm Judge Farrington's order for the return of all




                                           22                                   A-3729-15T4
remuneration   paid   to   defendant   for   the   position   of    Deputy

Business Administrator.12

     Affirmed.




12
   We find defendant's remaining arguments that the trial court
heard "inadmissible evidence" or should have recused itself to
be unworthy of a written opinion. R. 2:11-3(e)(1)(E).



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