[151 NJSuper Page 99] This order to show cause is a municipal election matter which projects issues respecting our Open Public Meetings Act, N.J.S.A. 10:4-6 et seq. (hereinafter Sunshine Law) and our Municipal Governing Body Vacancy Law, N.J.S.A. 40:45B-1 et seq. (hereinafter Vacancy Law).
The material facts reveal that in November 1974 plaintiff Jacques Crifasi, running as an "Independent," was elected to the council in the Borough of Oakland, his term to expire on December 31, 1977. On April 12, 1977, he resigned, leaving a vacancy on the council. Thereafter, at the May 4, 1977 work session of the mayor and council, defendant James Mulcahy, a member of the Oakland Republican Party, was nominated and sworn in to fill the vacancy.
As a result of the Mulcahy appointment plaintiffs initiated this action in which they seek both a declaration that Mulcahy's succession to office was accomplished in violation of the Sunshine Law and the Vacancy Law, and a restraint against Mulcahy's acting in any capacity as a member of the Oakland governing body. For the reasons which follow, this court concludes that Mulcahy's succession to the council was achieved contrary to the requirements of the Sunshine Law and accordingly is a nullity.
N.J.S.A. 10:4-9 provides in pertinent part that "no public body shall hold a meeting unless adequate notice thereof has been provided to the public." (Emphasis added). "Adequate notice" is defined in N.J.S.A. 10:4-8(d) to mean "written advance notice of at least 48 hours, giving the time, date, location and, to the extent known, the agenda of any regular, special or rescheduled meeting * * *" (Emphasis added). While plaintiffs acknowledge that notice of the Oakland borough council work session of May 4, 1977 was given pursuant to N.J.S.A. 10:4-18, they urge that the notice was inadequate as a matter of law because action not scheduled on the council's published agenda was taken by the governing body, thus depriving them and the general public of sufficient prior notice that such action would be considered or taken by the council.
Relying upon two recent formal opinions of the Attorney General,*fn1 defendants argue that the borough council was
under no obligation to provide such an agenda because it published an annual schedule of meetings in conformity with N.J.S.A. 10:4-18, which schedule afforded adequate notice to the public of the time and location of the May 4, 1977 work session.
This court finds defendants' argument unpersuasive and their reliance on the opinions of the Attorney General misplaced insofar as pertinent here. While the Attorney General's formal opinions are often a source of great assistance and enlightenment to a court of law in construing acts of the Legislature, they are not binding. Cf. Evans-Aristocrat Industries, Inc. v. Newark , 140 N.J. Super. 226, 230 (App. Div. 1976). Moreover, while the opinion of the Attorney General that a public body which has posted a schedule of regular meetings need not publish an additional agenda of such meeting may well be correct, the issue before this court is significantly different. The issue posed here is whether a public body which has given notice to the public of the time, location and agenda of a public meeting may, at such meeting, act in an official and binding capacity on matters not included on the agenda.*fn2
In light of N.J.S.A. 10:4-7 in which our Legislature sets forth in considerable detail what it considered and intended in passing the Sunshine Law, it must be concluded that such action by a public body violates the statute. One of the findings of the Legislature was that the public has the right to be aware of and present at all meetings of public bodies and to witness in full detail all phases of their deliberations, policy formulations and decision making. There can be no question that this right is fundamental to the democratic
process. Jones v. East Windsor Regional Bd. of Ed. , 143 N.J. Super. 182 (Law Div. 1976). Defendants' further argument that the "miscellaneous" designation on the agenda adequately gave notice of the Mulcahy appointment is clearly without merit.
Thus, where a public body chooses to, and does publish an agenda of a public meeting, it may not take official action at the meeting respecting matters not scheduled on the agenda. To permit otherwise might well lead to a ...