Civil action in lieu of prerogative writs.
Plaintiffs Terrance Galloway and Helen Galloway, his wife, bring this action in lieu of prerogative writs against defendant Municipal Council of the Township of Clark demanding a judgment determining that the adoption of bond ordinance No. 66-10 is invalid, illegal and void.
The facts of this case disclose that on November 6, 1962 one Siggo V. Hejselbak was duly elected councilman of the fourth ward, Township of Clark, for a four-year term commencing January 1, 1963 and terminating December 31, 1966. Hejselbak complied with all statutory qualification requirements and took the oath of office.
In March 1965 the Union County grand jury returned indictment No. 284 against Hejselbak and three former councilmen and a former municipal officer, charging each of them with conspiring to unlawfully demand and receive a cash sum for their favorable consideration of a local variance application in violation of N.J.S. 2A:105-1, 2A:98-1 and 2A:98-2. Hejselbak was convicted in the Union County Court on March 11, 1966 after a jury trial.
The municipal council then served upon Hejselbak a ten-day notice fixing March 31, 1966 as the date for a public hearing on the charge preferred against him that he had been convicted of a crime involving moral turpitude, in violation of N.J.S.A. 40:69A-166. He was directed to show cause why he should not forfeit his office as councilman.
Three days prior to the scheduled hearing on March 28, 1966 the regular public meeting of Council was held, at which six of the seven council members, including Hejselbak were present. At the close of the public hearing on ordinance No. 66-10, a roll call vote of the councilmen resulted in five votes cast affirmatively and one abstention. Hejselbak voted with the majority.
Ordinance No. 66-10 is entitled as follows:
"BOND ORDINANCE PROVIDING FOR THE ACQUISITION OF LANDS NECESSARY FOR THE INSTALLATION OF SIDEWALKS AND THE WIDENING OF MADISON HILL ROAD FROM RARITAN ROAD TO WESTFIELD AVENUE IN AND BY THE TOWNSHIP OF CLARK IN THE COUNTY OF UNION, NEW JERSEY APPROPRIATING $165,000.00 THEREFOR, AND AUTHORIZING THE ISSUANCE OF $157,000.00 BONDS OR NOTES OF THE TOWNSHIP FOR FINANCING SUCH APPROPRIATION."
Clark Township is governed by the Faulkner Act, the Optional Municipal Charter Act (N.J.S.A. 40:69A), plan F.
Plaintiffs point out that one of the requirements for adoption of a bond ordinance, as set forth in the Local Bond Law, N.J.S.A. 40A:2-17(b), is that:
"A bond ordinance shall be finally adopted by the recorded affirmative votes of at least 2/3 of the full membership of the governing body. * * *" (Emphasis added)
Plaintiffs' position with respect to the above statute is simply that there must have been five affirmative, valid votes cast in order for the bond ordinance to have been validly passed. They contend that because Hejselbak had been convicted on March 11, 1966, his vote on March 28, 1966 was invalid, thereby nullifying the passage of the bond ordinance.
On March 31, 1966 the following resolution was adopted by the township council:
"WHEREAS, SIGGO HEJSELBAK was named as a defendant in Indictment No. 284 returned by the Grand Jury of the County of Union in the January, 1964 term, and
WHEREAS, the said SIGGO HEJSELBAK was tried under such indictment by the Union County Court, Judge Erwin Fulop presiding, and
WHEREAS, the said SIGGO HEJSELBAK was found guilty of the charges set forth in said Indictment as amended, and
WHEREAS, the Council of the Township of Clark has heretofore notified the said SIGGO HEJSELBAK of a hearing to be held by
said Council to determine whether such conviction was for a crime or offense involving moral turpitude, and
WHEREAS, the Council has examined the Indictment and Record of Conviction and has considered the evidence and argument submitted in behalf of the said SIGGO HEJSELBAK,
NOW THEREFORE, BE IT RESOLVED by the Council of the Township of Clark as follows:
It hereby finds and determines that the conviction of SIGGO HEJSELBAK for the offenses described in such Indictment and Record of Conviction constitute a conviction for a crime involving moral turpitude as such terms are set forth in N.J.S.A. 40.69(a)-166.
AND BE IT FURTHER RESOLVED that the office of councilman, formerly held by SIGGO HEJSELBAK is declared to be vacant by reason of the provisions of N.J.S.A. 40:69(a)-166."
N.J.S.A. 40:69 A -166 of the Faulkner Act provides as follows:
N.J.S.A. 40:69A-166 of the Faulkner Act provides as follows:
"Any person convicted of a crime or offense involving moral turpitude shall be ineligible to assume any municipal office, position or employment in a municipality governed pursuant to this act, and upon conviction thereof while in office shall forfeit his office. * * *"
Plaintiffs contend that if the propriety of the hearing of March 31, 1966 be conceded, the forfeiture of office should be retroactive to the date of conviction. Plaintiffs therefore claim that Hejselbak had forfeited the seat from which he voted on March 28, 1966 and the requisite two-thirds affirmative vote prescribed by N.J.S.A. 40A:2-17 was not attained.
Plaintiffs further contend that the conviction of an elected official of any government of any crime listed in Title 2A of the Revised Statutes involves moral turpitude and requires immediate, automatic forfeiture of office ...