In City Council of the City of Orange Township v. Edwards, the Appellate Division recently explored disgorgement as an appropriate remedy. Defendant had been appointed as the business administrator in 2012, but the city council voted against confirmation. The next day, the mayor appointed defendant as deputy business administrator. The council immediately objected, informing the mayor and defendant that the temporary term as business administrator had expired, and the mayor had no authority to appoint a deputy. Six months later, after defendant had been acting and signing documents as business administrator, the council obtained an order to show cause why a preliminary injunction should not issue barring defendant’s continuation in the post. Defendant answered and filed a third-party complaint against the council members. After oral argument, an order issued barring defendant from continuing in the post, directing the city to appoint a business administrator, requiring compliance with the statute, and dismissing the counterclaim and third party complaint. Defendant temporarily left the deputy position, and the mayor appointed him chief of staff (an unauthorized position) at the same salary.

More than 10 months later, a motion for reconsideration was heard by a new judge who vacated the principal portions of the order, finding it improper to enter such an order without an evidentiary hearing. The Judge further ruled that the effect of the ruling was to reinstate defendant. Nearly two years later, a trial was scheduled before a third judge, but just before the hearing, defendant resigned. In the interim, the matter was settled, but the settlement agreement was breached.

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