The Board of Education of Jersey City consists of nine members. Presently there are 12. This anomaly results from the fact that both outgoing Mayor Paul T. Jordan and newly elected Mayor Thomas X. Smith have each appointed three members to the school board to fill the same three vacancies.
Plaintiffs seek to have themselves declared the lawful members of the school board, and to oust defendants from their positions as members. They contend that the appointments of all defendants are in violation of N.J.S.A. 40:69A-208 and N.J.S.A. 40A:9-156. The pertinent provisions of those statutes provide respectively as follows:
(a) No subordinate board, department, body, office, position or employment shall be created and no appointments shall be made to any subordinate board, department or body, or to any office, employment or position, including without limitation patrolmen and firemen, between the date of election of officers and the date the newly elected officers take office under any optional plan.
Defendants counter by arguing that N.J.S.A. 40:69A-208 is inapplicable to the facts of this case and that N.J.S.A. 18A:12-8 mandates that appointment of members of the board of education in first-class cities shall be made in June with their terms to commence July 1. That statute provides:
In districts, other than those in cities of the first class, the members of the board shall be appointed between January 2 and January 15 and their terms of office shall begin on February 1, next succeeding, and in districts in cities of the first class they shall be appointed during the month of June and their terms of office shall begin on July 1, next succeeding. [Emphasis supplied]
Defendants also contend that N.J.S.A. 40A:9-156 does not apply to the appointment of members of the board of education, and even if it were assumed that the statute applied, the appointments of Suruda and Baily were not prospective, and therefore not violative of that provision.
The appointment of Pugliese involves factual issues varying from those involved in the appointments of Suruda and Baily, and will therefore be considered separately. (Rev. Yanitelli resigned following the commencement of this action).
The parties have filed cross-motions for summary ...