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Citizens for Charter Change v. Essex County Board of Chosen Freeholders

Decided: October 29, 1986.


On appeal from Superior Court of New Jersey Law Division, Essex County.

Antell, Brody and Long. The opinion of the court was delivered by Brody, J.A.D.


Plaintiffs are an association that a decade ago worked to change the Essex County form of government to its present county executive plan, and an Essex County taxpayer. They challenge the legality of a resolution unanimously adopted by defendant Essex County Board of Chosen Freeholders (the Board) submitting a charter study question to the voters of Essex County at the general election to be held November 4, 1986. Plaintiffs' main point is that the Optional County Charter Law (the Charter Law), N.J.S.A. 40:41A-1 to 147, under which the county is governed, required the Board to act by ordinance and not by resolution. Plaintiffs sought an order in this action in lieu of prerogative writs that would restrain defendant Nicholas Caputo, the Essex County Clerk, from placing the question on the ballot. The trial court denied plaintiffs relief and we affirm.

The present controversy is heightened by recriminations between the Board and County Executive Peter Shapiro over responsibility for an increase in the current county tax rate approved by the Board July 2, 1986. That dispute is a prominent feature of the general election in Essex County in which Shapiro and Nicholas Amato are candidates for the office of county executive. At a political meeting, reported in the press on July 27, the County Executive urged that he be given "line-item veto power" to curb freeholder spending. The same article reported that the Board chairman "revealed" that he "is

researching whether a new charter study is warranted to make the executive more accountable."

In a later article the press reported that the chairman said at the Board's August 6 conference meeting that "he would ask his colleagues to support a new charter study commission to review Shapiro's ideas and examine anew the entire structure of county government." The Board adopted the charter study resolution at its August 13 meeting, the only regularly scheduled meeting until September 10. Consideration of the resolution was not listed on the written agenda of the August 13 meeting. A copy of the resolution had not been distributed to the County Executive "at least forty-eight (48) hours prior to the [August 6] conference meeting" as required by the Essex County Administrative Code.

To initiate a change in a county's form of government to a plan authorized by the Charter Law the board of freeholders must adopt a resolution or at least 10% of the registered voters must sign a petition directing that there be placed on the ballot the question of whether to appoint a charter study commission. N.J.S.A. 40:41A-1. "Whenever such resolution or petition shall be filed with him, the county clerk shall provide for the submission of the question at the next general election occurring not less than 60 days after the date of such filing." Ibid. The deadline for including the question on the November 4, 1986 ballot was therefore September 5. That deadline could only have been met by adopting a resolution; it would have taken too long to adopt an ordinance.

An ordinance under the Charter Law must pass a first reading, be advertised for further consideration for final passage, be the subject of a public hearing, and be finally passed at a meeting held at least 10 days from the first reading. N.J.S.A. 40:41A-101b. An ordinance does not become effective until at least 20 days after its final passage and, under the county executive plan, approval by the county executive. N.J.S.A. 40:41A-101c. If the county executive vetoes the ordinance, the board may override the veto by a two-thirds vote of

its full membership. N.J.S.A. 40:41A-41f. Thus, even if a special meeting had been called to accelerate the process of final passage and no veto followed, it would still have taken 30 days from the August 13 first reading before the ordinance would become effective. That would be a week after the September 5 deadline for the November ballot.

Plaintiffs argue that despite the provision in N.J.S.A. 40:41A-1 that authorizes the use of a resolution, the Board was obliged to use an ordinance because N.J.S.A. 40:41A-38 prescribes that under the county executive plan the "legislative power shall be exercised by ordinance . . ." except for specified instances that do not include submitting a charter study question.*fn1 They reconcile the apparent conflict between the two sections of the Charter Law by concluding that N.J.S.A. 40:41A-38 prohibits a county governed by a Charter Law plan from switching to another Charter Law plan. They support this conclusion by noting that where the voters have elected a charter study commission, N.J.S.A. 40:41A-8 establishes an advisory board whose members include "the director of the county board of freeholders," an office that the Legislature has established for traditional forms of county governments, N.J.S.A. 40:20-71, but not for Charter Law plans.*fn2

When confronted with an apparent contradiction between two sections of the same statute, our task is to harmonize the sections to conform with the purpose of the legislation as a whole and to avoid an untoward result. Brown v. Brown, 86 N.J. ...

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