This case comes before me on cross-motions for summary judgment. The matter is ready for summary judgment because, in the court's opinion, there is no issue of any material fact which requires any plenary hearing.
The facts, as the court gleans them from the pleadings filed and the affidavit and the transcript of the proceedings on March 7, 1976, are these:
Defendant East Windsor Regional Board of Education is an elected regional school board composed of six members from East Windsor Township and three from Hightstown. Prior to March 2, 1976 one of the East Windsor representatives, Mr. Hellquist, had resigned, but his resignation had come too late to have his seat filled at the school board election held on March 2 and which involved two East Windsor seats and one from Hightstown.
In that election Mr. Abrams, a member of the school board, was reelected. Another member from East Windsor, Mrs. Friedman, who had been and was at that time the
President of the school board, was defeated and Mr. Miller elected in her place. The Hightstown representative, Dr. Martinelli, did not seek reelection and Mr. Sarafin was elected.
Prior to the election Mrs. Friedman had arranged through the local newspapers to carry notices asking any person who was interested in filling the Hellquist vacancy to submit resumes to her in care of the secretary of the board by March 4. Twenty-six people applied for the vacancy.
On the evening of March 4 Mrs. Friedman called for a special meeting of the school board to be held on March 7 for the purpose of voting to fill the vacant seat of Hellquist. The next afternoon Mr. Kent, the secretary of the board, delivered a notice of this proposed meeting, which notice included the agenda to be followed, to the editor of the Hightstown Gazette , the Windsor Heights Herald and the Trenton Evening Times , and, in addition, to the clerks of the two muncipalities involved and to each of the then members of the school board. Neither the Windsor Heights Herald nor the Hightstown Gazette published a newspaper between Friday and Sunday, March 5 to March 7; each is a weekly, and consequently neither paper carried the notice. The Trenton Times published the notice on March 7.
At 7:45 P.M. on March 7 the special meeting was convened at the East Windsor Regional School Administration Building in Hightstown. At that time there was a discussion among the members of the school board as to whether the meeting complied with the requirements of the so-called Sunshine Law, L. 1975, c. 231, approved on October 21, 1975, and which took effect 90 days thereafter. Consequently, it was in force at the time of this meeting.
Three of the eight members present expressed their opinion that the meeting was illegal because it did not meet the requirements of the act. They refused to participate. Thereafter there was some discussion among the other five members as to how the interview with the 26 applicants would be handled. It was decided that each applicant would be
allotted five minutes and asked two questions: (1) "What expertise do you feel you have to contribute to the board?" and (2) "How would you handle the present situation?" This referred to the dispute about the legality of the meeting. It was further decided that the interviews would be held in executive or closed session. The board then adjourned its open meeting and conducted the 26 interviews.
Some four hours later the board reconvened and thereafter nominations were made, based first with reference to a numbered list rather than by name. There were five persons nominated. There was no discussion by any board member with respect to either the qualifications of the person nominated or the reason for the nomination being made. It was further agreed that the first nominee to receive five affirmative votes would be the person to be seated to fill the vacancy.
Richard Friedman was the fourth nominee. Votes were taken on the first three and none of these persons received five affirmative votes. When it came time for voting on Friedman, six members other than Mrs. Friedman voted. There were four affirmative and two negative.
At that point the suggestion was made from somewhere -- the record isn't clear; it simply states "A voice", and whether that was a member of the school board or one of the local citizens in attendance it is impossible to tell. In any event, the suggestion was made that Mrs. Friedman would be in a conflict of interest if she voted on behalf of seating her husband. Regardless of that suggestion or criticism, Mrs. Friedman did vote affirmatively and Richard Friedman therefore received five votes. After the meeting had adjourned he was sworn in as a member of the board.
As stated, all parties have moved for summary judgment: defendants for dismissal of the complaint and plaintiffs for judgment in accordance with the relief requested in the complaint. I.e., a declaration that the election of Friedman be vacated and declared null and void and that the action of the board in making him a member of the school board was improper and should be revoked.
Six issues are raised by the pleadings and the briefs that have been filed. The first, raised by the attorney for the defendant regional board of education, is that the board is improperly joined; that the board is reconstituted each year; that the present board, which will be seated from 1976-77, is not properly a party because the action under review was taken by the regional board which was in office for 1975-76.
There is no question that the statutes which relate to regional school boards direct that there be a reconstitution of the school board each year following the school board election for that particular region. However, the court rejects the suggestion that therefore no action can legitimately and properly be taken against the present school board because it wasn't the one that took the action which is in dispute. The court considers that the statutory requirement for election of president and other officers each year after a school board election is purely administrative. The regional board of education continues as a viable body, and I find that there is no basis for the contention that this regional board is not properly before the court.
The second issue raised by defendants is that plaintiffs have failed to exhaust their administrative remedies, defendants suggesting that if there is an issue of conflict of interest on the part of Mrs. Friedman, such issue should properly be brought by administrative ...