Theodore McKee

The U.S. Court of Appeals for the Third Circuit has ruled that a lack of trust and confidence is sufficient cause for members of a municipal council to terminate a township solicitor who has not acted illegally or unethically.

The appeals court issued its ruling after the New Jersey Supreme Court declined to take up its request for an interpretation of applicable New Jersey law.

The Third Circuit ruling affirms a January 2016 ruling by U.S. District Judge Noel Hillman, who found that the Washington Township council in Gloucester County had cause under the Faulkner Act to remove John Armano Jr. from the job of township solicitor.

Armano claimed the firing was illegal because under the Faulkner Act, which governs roughly 80 municipalities in New Jersey, only the mayor can remove a municipal attorney without cause. The act permits the council to fire any employee for cause, other than the mayor or a member of council, by a two-thirds vote of the council. The appeals court sought help because it found little guidance was available on the meaning of the word “cause” under the Faulkner act.

The council dismissed Armano with two years left on his four-year contract after his law partner, John Trimble, filed a suit in which some of the council members were defendants. The underlying suit, brought on behalf of John Daly, who was then a candidate for council, sought to invalidate the endorsement of a council slate by the Washington Township Democratic Committee. Daly voluntarily dismissed the suit a month after filing it.

In seeking to fire Armano, the town said his firm’s simultaneous representation of the council and Daly violated RPC 1.7, 1.9, 1.10 and 1.11. Armano presented testimony from a legal ethics authority who said the arrangement did not violate the RPCs.

After Hillman threw out the suit, Armano appealed to the Third Circuit. In January, the appeals court asked the New Jersey Supreme Court for guidance on whether municipal council members in towns organized under the Faulkner Act can fire a municipal attorney based solely on expressed loss of trust for behavior that is not illegal or unethical. The appeals court, in seeking advice from the Supreme Court, said the case revolved around the meaning of the term “cause.”

But the Supreme Court, in an April 6 order, said it “determined, respectfully, to reject the question.”

In an opinion on Friday, Judges Theodore McKee, L. Felipe Restrepo and Mark Hornak of the Western District of Pennsylvania, sitting by designation, made no mention of the Supreme Court’s silence on the issue. McKee wrote that the decision turns on the issue of the definition of the word “cause.”

McKee, writing for the court, said the council “acted well within the limitations of the Faulkner Act in terminating its relationship with the person it had entrusted with legally representing the township.” Whether Trimble’s involvement created an actual or perceived conflict for Armano is irrelevant, he said. “Armano asks us to compel a client (the Township) to continue in a fiduciary relationship that is the underpinning of the lawyer/client relationship, even though the trust so important to that relationship no longer existed. The council’s lack of trust and confidence in plaintiff’s services as Township Solicitor establishes sufficient cause to remove him from his position,” McKee said.

Eric Riso of Platt & Riso in Stratford, who represents the defendants, said he was pleased with the ruling but declined to comment otherwise. Louis Giansante of Giansante & Cobb in Moorestown, who represented Armano, did not return a call about the ruling.