This case involves a novel issue under the Municipal Vacancy Law. N.J.S.A. 40A:16-1 et seq. The question is simply stated, the answer is more complex. May members of the governing body refuse to attend a meeting if their purpose is to preclude a quorum and thereby prevent the governing body from deciding whether or not an existing vacancy should be filled? Put another way, if council members are purposely absenting themselves, can the court order them to attend a meeting so that the governing body may determine whether a vacancy in the governing body should be filled?
The Borough of Barnegat Light has a borough council form of government functioning under N.J.S.A. 40:86-1 et seq. It
consists of a mayor and six councilmen. On April 9, 1987 Edwin P. Kenny died, creating a vacancy in the position of councilman. His term expires on December 31, 1987. Councilmen Ethan Allen Smith, Jack Albaugh and A. Fred Hulick, plaintiffs, attempted to arrange a special meeting for April 30, 1987 to consider filling the vacancy. Mayor Henry J. Ghigliotty, Jr., Councilmen James P. Stavish and Michael W. Spark, defendants, have refused to participate in either calling or attending such a meeting. The mayor's stated purpose for refusing to attend the meeting is that he believes that the vacancy should not be filled by the governing body but rather by the electorate in the next general election.
The refusal of the mayor or two councilmen to attend a meeting prevents the remaining three councilmen from holding a meeting. A special meeting can be called either by the mayor or by four councilmen and a quorum can be achieved by three councilmen plus the mayor or by four councilmen. N.J.S.A. 40:88-1. If a quorum can be attained, the vacancy can be filled by a majority vote of the remaining members of the governing body. N.J.S.A. 40A:16-7. The mayor votes only in the event of a tie. N.J.S.A. 40A:16-8. Thus, in this case, the three plaintiffs have the ability, if a meeting is called and if they decide to fill the vacancy, to control the result. As long as defendants stay away, they can control the result because if the vacancy is not filled within 30 days after the occurrence of the vacancy, the office shall remain vacant for the remainder of the term or until the election and qualification of a successor, as the case may be. N.J.S.A. 40A:16-11; N.J.S.A. 40A:16-13.
The pertinent statutory authority reads:
If the incumbent whose office has become vacant was elected to office as the nominee of a political party, the municipal committee of the political party of which the incumbent was the nominee shall, no later than 15 days after the occurrence of the vacancy, present to the governing body the names of three nominees for the selection of a successor to fill the vacancy. The governing body may, within 30 days after the occurrence of the vacancy, appoint one of the nominees as the successor to fill the vacancy. If the municipal committee which nominated the incumbent fails to submit the names of the nominees
within the time prescribed herein, the governing body may, within the next 15 days, fill the vacancy by the appointment of a successor from the same political party which had nominated the incumbent whose office has become vacant. [ N.J.S.A. 40A:16-11]
If a governing body shall fail or decline to fill a vacancy in the membership of the governing body by appointment as provided in N.J.S. 40A:16-4 or 40A:16-5 within the time prescribed by N.J.S. 40A:16-11 or 40A:16-12, the office shall remain vacant for the remainder of the term or until the election and qualification of a successor, as the case may be. [ N.J.S.A. 40A:16-13]
The deceased councilman was a member of a political party, but the municipal committee failed to make any nomination within 15 days. While more than 30 days has passed, this court issued an order prior to the expiration tolling the 30-day period pending decision as to whether the council members could absent themselves specifically for the purpose of allowing the 30 days to expire. All parties concede that if a meeting is to be held, the governing body may decline to fill the vacancy. The dispute is restricted to the question of whether a meeting must be held to exercise the option to fill or not to fill the vacancy.
As noted, there is no controlling authority with respect to the issue in this case. However, based upon the decisions under the Municipal Vacancy Law and its predecessor concerning related questions, the legislative history, the preference to conduct public matters in a public setting as evidenced by the Open Public Meetings Act (N.J.S.A. 10:4-6 et seq.) and the substantial authority relating to the fiduciary obligation of public officials, this court concludes that it should order ...