SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3324-18T3

LAKEWOOD CITIZENS FOR 

FISCAL INTEGRITY, and 

LARRY S. LOIGMAN,

Plaintiffs-Appellants,

v.

TOWNSHIP OF LAKEWOOD,

RAYMOND COLES and 

THOMAS L. HENSHAW,

Defendants-Respondents.

_____________________________

Argued December 18, 2019 - Decided January 8, 2020

Before Judges Whipple, Gooden Brown, and Mawla.

On appeal from the Superior Court of New Jersey, Law 

Division, Ocean County, Docket No. L-2493-18.

Larry S. Loigman, appellant, argued the cause pro se, 

and for appellant Concerned Citizens for Fiscal 

Integrity.

Kevin B. Riordan argued the cause for respondents 

(Kevin B. Riordan, LLC, attorneys; Kevin B. Riordan 

and Gary P. McLean, on the brief).

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
2

A-3324-18T3

PER CURIAM

Plaintiffs appeal from a March 1, 2019 order, dismissing their complaint 

in lieu of prerogative writs. We affirm. 

By way of resolution, defendant Thomas L. Henshaw was appointed 

municipal manager of the Township of Lakewood in February 2015. Henshaw's 

employment agreement provided:

Henshaw may be removed from his position 

during the term of this agreement in accordance with 

the Ordinances of the Township of Lakewood and

N.J.S.A. 40A:9-138; specifically, by two thirds . . . vote 

of the full five . . . members of the Governing Body. 

Said Resolution of the Governing Body for the removal 

of Henshaw shall become effective six months after 

adoption by the Governing Body. The Governing Body 

may provide that the Resolution shall have immediate 

effect provided, however, that the governing Body shall 

. . . cause to be paid to Henshaw his salary for the next 

six . . . calendar months following adoption of the said 

Resolution with health benefits included i[f] Henshaw 

is using Township health benefits. Said salary shall be 

paid to Henshaw during said six . . . month period in the 

same installments and at the same intervals as other

Township employees, unless other arrangements are 

made and agreed upon by both parties.

. . . . 

[Henshaw] may submit a resignation to the 

Township Council [sic] no less than two . . . weeks in 

advance or no more than thirty . . . days . . . of the 

effective date of the resignation unless agreed upon by 

the Mayor and Committee.
3

A-3324-18T3

In September 2018, Henshaw and the governing body had a dispute. 

Henshaw and Lakewood's mayor, defendant Raymond Coles, entered into a 

"Separation Agreement and General Release" stating Henshaw would receive

salary and other benefits for the remainder of 2018 of $4130, $215,000

representing his annual 2019 salary, and $50,593.98 for accumulated leave time. 

The agreement granted Henshaw health and spousal benefits until the end of 

2018, and Medicare supplement benefits for 2019. The Township reported the 

discontinuation of Henshaw's appointment to the Civil Service Commission

effective September 5, 2018. 

Plaintiffs filed a complaint in lieu of prerogative writs in October 2018,

to set aside the agreement. Defendants filed a motion to dismiss for failure to 

state a claim the following month. Plaintiffs cross-moved for restraints against 

any payments to Henshaw under the agreement. On January 1, 2019, the 

Township Committee held a reorganization meeting and ratified the agreement

via resolution, which in pertinent part stated:

WHEREAS, the Township Committee of the 

Township of Lakewood has entered into a Separation 

Agreement and General Release with Thomas 

Henshaw; and

WHEREAS, the Township Committee of the 

Township of Lakewood understands the terms of the 

Separation Agreement and General Release and intends 
4

A-3324-18T3

that the Township be bound by the Separation 

Agreement and General Release, a copy of which is 

annexed hereto and incorporated herein; and

WHEREAS, the Township Committee of the 

Township of Lakewood wishes to have the Mayor 

execute the Separation Agreement and General Release 

on behalf of the Township of Lakewood.

NOW, THEREFORE, BE IT RESOLVED by the 

Township Committee of the Township of Lakewood 

that the Separation Agreement and General Release 

entered into on September 5, 2018 between the 

Township of Lakewood and Thomas Henshaw is 

hereby approved and ratified. 

Plaintiffs amended their complaint to reference the resolution before oral 

argument of the motions. 

The motion judge determined there was no statutory violation because the 

agreement was for a severance and general release of claims between the parties. 

The judge concluded the resolution adopting the agreement cured any statutory 

defect and did not require the adoption of an ordinance because the Township 

"only need[s] an ordinance if [it is] creating a new law." The judge dismissed 

plaintiffs' complaint and denied their motion for restraints.

Appellate review of a trial court's ruling on a motion to dismiss is de novo. 

Watson v. Dep't of Treasury, 453 N.J. Super. 42, 47 (App. Div. 2017). "A 

complaint should be dismissed for failure to state a claim pursuant to Rule 4:6-
5

A-3324-18T3

2(e) only if 'the factual allegations are palpably insufficient to support a claim 

upon which relief can be granted.'" Frederick v. Smith, 416 N.J. Super. 594, 

597 (App. Div. 2010) (quoting Rieder v. State Dep't of Transp., 221 N.J. Super. 

547, 552 (App. Div. 1987)). "This standard requires that 'the pleading be 

searched in depth and with liberality to determine whether a cause of action can 

be gleaned even from an obscure statement.'" Ibid. (quoting Seidenberg v. 

Summit Bank, 348 N.J. Super. 243, 250 (App. Div. 2002)).

On appeal plaintiffs argue as follows: (1) the severance agreement is 

inconsistent with Henshaw's employment contract, local ordinance, and state

statute regarding removal of administrators; (2) the Lakewood ordinance 

requires Henshaw be "paid only to the date of actual termination of duties;" (3) 

the ratification of the agreement by resolution was invalid because Henshaw's 

employment was subject to statute and the municipal ordinance and could not 

be altered by resolution; (4) the taxpayers should "have had an opportunity to 

be heard before that ordinance was changed for the special benefit of Henshaw;" 

and (5) the motion judge failed to make adequate findings of fact or conclusions 

of law.

N.J.S.A. 40A:9-136 states a municipal administrator "shall receive such 

compensation as the ordinance creating such office shall provide and as from 
6

A-3324-18T3

time to time may otherwise be directed by the governing body by ordinance."

N.J.S.A. 40A:9-138 provides:

The municipal administrator may be removed by a 

[two-thirds] vote of the governing body. The resolution 

of removal shall become effective [three] months after 

its adoption by the governing body. The governing 

body may provide that the resolution shall have 

immediate effect; provided, however, that the 

governing body shall cause to be paid to the 

administrator forthwith any unpaid balance of his salary 

and his salary for the next [three] calendar months 

following adoption of the resolution.

Section 2:10.2(b) of the Lakewood Township Municipal Code governs 

removal of the Township's municipal manager. It states: 

The Township Committee may remove the Manager at 

any time by a [two-thirds] vote of its members. The 

resolution of removal shall become effective three . . . 

months after its adoption by the Township Committee 

unless the resolution provides that it shall have 

immediate effect. If it is to have immediate effect, the 

Township Committee shall cause to be paid to the 

Municipal Manager any unpaid balance of his salary to 

the date of termination of employment and in addition 

his salary for the next three . . . calendar months 

following the adoption of the resolution. This threemonth provision shall not apply in the event the 

Municipal Manager voluntarily terminates employment 

by resigning the office or position. In such event the 

Manager shall be paid only to the date of actual 

termination of duties. The Manager shall give threemonths['] notice to terminate prior to voluntary 

resignation from office.
7

A-3324-18T3

[Township of Lakewood Mun. Code, §2:10.2(b) 

(emphasis added).] 

The salary of every local government employee must be fixed by 

ordinance. See N.J.S.A. 40A:9-165; Cooper v. Mayor, 299 N.J. Super. 174, 179 

(App. Div. 1997); City of Ocean City v. Somerville, 403 N.J. Super. 345, 369 

(App. Div. 2008). An ordinance—unlike a resolution—requires notice and a 

public hearing, giving taxpayers an opportunity to voice their opinions. See

N.J.S.A. 40:49-2. "Increases, decreases or any other modifications must also be 

approved by ordinance." McCurrie v. Town of Kearny, 344 N.J. Super. 470, 

478 (App. Div. 2001), rev'd on other grounds, 174 N.J. 523 (2002) (citing 

N.J.S.A. 40A:9-165). "'[W]hen the law requires a proceeding to be instituted by 

an ordinance, it cannot be effected by resolution,'" id. at 480 (quoting Chasis v. 

Tumulty, 8 N.J. 147, 153 (1951), but "'where a statute fails to indicate whether 

the power should be exercised by ordinance or resolution, it may be done by 

either means.'" Ibid. (quoting Fraser v. Twp. of Teaneck, 1 N.J. 503, 507 

(1949)). "Accordingly, in the absence of statutory language to the contrary, a 

local government may enter into a contract by the passage of a resolution." Ibid.

(citation omitted).

We reject plaintiffs' argument the agreement and the resolution violated 

the statute and the ordinance. N.J.S.A. 40A:9-136 and Section 2:10.2(b) of the 
8

A-3324-18T3

Lakewood Township Municipal Code did not govern the circumstances of

Henshaw's separation because the Township did not vote to remove him, and 

Henshaw did not resign from office. Rather, as in McCurrie, Henshaw entered 

into a separation agreement with the Township, whereby the two parted ways in 

consideration for the payment of a severance and other benefits. McCurrie, 344 

N.J. Super. at 480. As it was in McCurrie, Henshaw "was not being 

compensated for the performance of personal services. He had a right to 

continue in the job, but gave up that right under the terms of the agreement. The 

agreement was contractual, not legislative in nature, and as such a resolution is 

sufficient." Ibid. The dispute and agreement "were comparable to the buy-out 

of an employment contract, not to the fixing of salary or wages." Id. at 481. 

Furthermore, the passage of a resolution was a valid means of adopting 

the agreement. 

[A] municipality can ratify a contract entered into by an 

unauthorized agent as long as such contract is one 

within the corporate powers and not [u]ltra vires in the

primary sense as entirely beyond municipal

jurisdiction. The ratifying power exists when the 

deficiency invalidating the municipal contract consists 

only in the lack of a proper authorization on the part of 

the party executing it on behalf of the municipality.

The public is not disserved by this doctrine for the 

responsible officials who should have properly made 

the agreement are not bound by their subsequent
9

A-3324-18T3

acceptance of it through the means of ratification unless 

they are acquainted with all the material facts.

[Johnson v. Hosp. Serv. Plan of N.J., 25 N.J. 134, 140

(1957) (internal citations omitted).]

An ordinance was not required because the agreement did not involve

Henshaw's removal, and thus did not concern N.J.S.A. 40A:9-136 or Section 

2:10.2(b) of the Lakewood Township Municipal Code. Moreover, as stated in 

Johnson, the resolution memorialized that the governing body reviewed the 

agreement, understood its terms, and ratified it. Therefore, plaintiffs lacked a 

valid argument evidencing the procedure utilized was improper. 

Finally, we reject plaintiffs' argument the judge made inadequate findings 

pursuant to Rule 1:7-4(a). The judge made the necessary findings to adjudicate 

the motions. He explained the following: Henshaw was neither terminated nor 

unilaterally resigned, but instead the parties contracted for his separation from 

the Township; the reasons an ordinance was not required to resolve the dispute;

and why any purported violation was cured by the resolution on which the 

Township Committee had an opportunity to review before passing. 

Affirmed.