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Skarbnik v. Spina

Decided: July 30, 1973.

HOWARD F. SKARBNIK, AS COUNCILMAN AND AS TAXPAYER, PLAINTIFF,
v.
SAMUEL A. SPINA AND HARRY BONNET, DEFENDANTS, TOWN COUNCIL OF THE TOWN OF WEST ORANGE, INTERVENOR-DEFENDANT



Milmed, J.s.c.

Milmed

This matter comes before the court on complaint in lieu of prerogative writs and order to show cause seeking the removal of defendant Harry Bonnet from his office as president of the town council of the Town of West Orange (N.J.S.A. 40:69A-180(c)) and his temporary replacement by his immediate predecessor in that office, Robert Mangino; and also the removal of defendant Samuel A. Spina from the office of council representative to the joint meeting of which the municipality is a contracting party (R.S. 40:63-68 et seq.), and his temporary replacement by his immediate predecessor in that office, William Cuozzi, Jr. In the complaint plaintiff, as a councilman and taxpayer of West Orange, also seeks injunctive relief and the return of compensation received by defendant officials in their respective offices of council president and council representative to the joint meeting.

Following the hearing of its application therefor on the return date of the order to show cause, leave was granted to the town council to intervene in this action as a party defendant (R. 4:33). The facts are not in dispute. Accordingly, the parties appearing have consented that the

court hear the matter as on motion by each of the respective parties for summary judgment, on the pleadings, affidavits and copy of the record filed, and memoranda of law and oral argument submitted.

West Orange is governed by the mayor-council plan B form of government under the Optional Municipal Charter Law, commonly referred to as the Faulkner Act (L. 1950, c. 210; N.J.S.A. 40:69A-49 et seq.). Its town council consists of five members (N.J.S.A. 40:69A-52), elected at large by the voters of the municipality at a regular municipal election, who serve for a term of four years (N.J.S.A. 40:69A-52). The council determines its own rules of procedure, not inconsistent with ordinance or statute (N.J.S.A. 40:69A-180(a)). A majority of the whole number of members of the council constitutes a quorum, with the proviso that no ordinance shall be adopted by the council without the affirmative vote of a majority of all of the members of the council (N.J.S.A. 40:69A-180(a)). The vote on every motion, resolution or ordinance must be taken by roll call, and the yeas and nays must be entered on the minutes, which must be signed by the officer presiding at the council meeting and by the municipal clerk (N.J.S.A. 40:69A-180(b)). Appointments by the council require a majority vote. (Ordinance, Rules of Council 1962, as amended, section 12 (b)).

N.J.S.A. 40:69A-180(c) states in pertinent part that

The council at its organization meeting shall elect a president of the council from among the members thereof and he shall preside at its meetings and perform such other duties as the council may prescribe. * * * [Emphasis supplied]

The president of the council is chosen for a term of one year and may not succeed himself. (Ordinance, Rules of Council 1962, as amended, section 3.) The office carries with it an additional annual salary of $500.

West Orange is a member of a joint meeting organized pursuant to N.J.S.A. 40:63-68 et seq. (construction and

maintenance of a joint trunk sewer and sewage disposal plant). The joint meeting consists of "the respective governing bodies or boards having authority to construct sewers and drains therein, of the several municipalities" contracting. N.J.S.A. 40:63-85.

N.J.S.A. 40:63-69 defines the words "joint meeting" as used in the statute as follows:

The words "joint meeting" as used in this article shall mean the meeting or assembly of the members of the governing bodies or boards of the several municipalities having authority to make and enter into contracts for the construction jointly of the works or improvements, authorized by section 40:63-70 of this title.

Another section, N.J.S.A. 40:63-87, states in pertinent part that

Each municipality, through its body or board represented in such joint meeting, shall be entitled to one vote therein, on all motions, resolutions, appointments and all other proceedings taken in or by such joint meeting, subject to the qualifications hereinafter specified; and such vote shall be cast and announced as is directed by a majority of all the members of such municipal body or board present in such joint meeting, whether such members present constitute a quorum of such body or board, or not. If ...


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