This is an action in lieu of prerogative writs challenging the appointment of Andrew B. Manning to the Borough Council of the Borough of Sea Bright.
The Borough of Sea Bright is governed by a mayor and six-member borough council (hereinafter "council"). Since January 1, 1986, the council has been made up of three Democrats and three Republicans. The Mayor, Cecile F. Norton, is a Democrat.
On February 4, 1986, Councilman Andrew B. Manning submitted his resignation to the borough clerk; with that, his seat became vacant by operation of law. N.J.S.A. 40A:16-3f.
Pursuant to N.J.S.A. 40A:16-11, the governing body had 30 days to fill the vacancy with an appointee who was also a Democrat, since Manning was elected as a Democrat. If the governing body failed to fill the vacancy within the prescribed time, then, pursuant to N.J.S.A. 40A:16-3, the office would remain vacant for either the remainder of the term of the former office-holder or until an election and qualification of a successor.
On February 20, 1986, Manning's name was submitted to fill the vacancy created by his resignation. Upon motion of Councilman Furlong, a plaintiff herein, the nomination was tabled "until the next meeting."
The mayor then called a special meeting, which took place on February 26, 1986, at 5:30 p.m. Due to the absence of the three Republican councilmen, there was an insufficient number to constitute a quorum. Accordingly, the mayor adjourned the meeting until Saturday, March 1, 1986, at 10:30 a.m. The meeting was scheduled for a Saturday in order to avoid any business commitments of the council members, as this was the asserted reason for the absence of the Republican members at the meeting of February 26.
In attendance at the meeting of February 26 were representatives of the Asbury Park Press and the Red Bank Register. They were allegedly advised of the rescheduled date, time and purpose of the March 1 meeting. Both newspapers published articles concerning the meeting in their morning editions on Thursday, February 27, 1986 -- more than 48 hours before the meeting. Additionally, notice was posted in the usual place at the borough hall on the morning of February 27 (see affidavits of Mary Larson, Borough Clerk; and Patricia Kelly, Assistant Borough Clerk). It was also filed with the borough clerk.
At the meeting of March 1, Councilman Furlong first questioned whether a notice of meeting was published in the Asbury Park Press and the Red Bank Register. Patricia Kelly, Assistant Borough Clerk, replied: "It was in the newspaper article of the Asbury Park Press and the Red Bank Register." Furlong requested that the record reflect that the notice was not included in the "public notices."
Councilman Manning's name was submitted and a roll call vote was taken. Council members in attendance voted 2-2 along party lines. The mayor, exercising her right under N.J.S.A. 40A:16-8, voted with the Democrats to approve Manning's nomination, thus breaking the tie.
On March 10, 1986, plaintiffs filed this action in lieu of prerogative writs seeking a judgment that Manning's appointment is null and void for ...