NJ Appeals Court Addresses Separation of Powers in County Executive Governments

NJ Appeals Court Addresses Separation of Powers in County Executive GovernmentsA recent decision by the Appellate Division of the New Jersey Superior Court sheds light on the separation of powers between the county executive and board of freeholders in a county executive form of government. In Donovan v. Bergen County Board of Chosen Freeholders, the appeals court specifically considered (1) whether the County Executive, or the Board of Freeholders, has the authority to hire the county’s auditor, and (2) whether the County Executive may appoint a designee to participate in Board meetings on his/her behalf.


Under the Optional County Charter Law (Charter Law), N.J.S.A. 40:41A-1 to -149, each county operating under the county executive form of government “shall be governed by an elected board of freeholders and an elected county executive and by such other officers and employees as may be duly appointed pursuant to this act, general law, or ordinance.” The dispute in this case stems from a long running disagreement between the Bergen County Executive and Bergen County Freeholders over the power to appoint an auditor.

Since 1986, the Bergen County Freeholders appointed the county auditor, pursuant to Article 2.1(i) of the Bergen County Administrative Code (Administrative Code), which vests such authority in the Freeholders. Relying on this authority, the Board adopted resolution 330-12 on March 7, 2012, appointing Steven D. Weilowitz, C.P.A., as county auditor. Bergen County Administrator, Edward Trawinski, attended the meeting as the designee for Kathleen Donovan, County Executive of Bergen County. Only Freeholders, and not Trawinski, who opposed the appointment, were permitted to comment on the proposed resolution. It ultimately passed.


Donovan and Trawinski sought a declaratory judgment as to the County Executive’s right to appoint the county auditor, and to invalidate resolution 330-12 and Article 2.1(i) of the Administrative Code. The Freeholders consequently sought to compel Donovan to execute the contract with Weilowitz, and a declaratory judgment that the County Executive was not permitted to appoint a designee to exercise her right under the Charter Law to be present and participate in Board meetings.

The lower court held that the County Executive is authorized to appoint the auditor, and invalidated resolution 330-12 and Administrative Code Article 2.1(i). The court further ruled that that the Charter Law’s provision allowing a county executive to be present and participate in discussions at all Board meetings does not allow for the appointment of a designee.


The appeals court upheld the lower court decision on all accounts. It confirmed that the appointment of auditor was exercise of administrative power reserved for the Executive. Accordingly, the section of County Code authorizing appointment of auditor by Freeholder Board and resolution of Freeholder Board was null and void. The appeals court also held that pursuant to the Optional County Charter Act only County Executive, and not her designee, could participate in Freeholder Board meetings.

For more information about this case or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group. 

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