This case implicates the seldom used doctrine of necessity which allows an official to participate in public business notwithstanding an otherwise disqualifying conflict. The issue is whether the doctrine is properly invoked in the following circumstances.
The Township of Dover and the Boroughs of South Toms River, Beachwood and Pine Beach are the constituent members of the Toms River Regional Board of Education. On April 4, 1989, voters in all of these municipalities rejected the board's proposed budget. That rejection requires the governing bodies of these municipalities to consult with the board and thereafter certify the amount which they deem necessary to provide a thorough and efficient system of schools in the district. In regional school districts all constituent municipalities must concur in the amount of money to be raised by local taxation for school purposes. Thus the four certifications must be substantially identical.
On April 20, 1989, the Borough Clerk of the Borough of Beachwood informed the Ocean County Superintendent of Schools that four members of the Beachwood Council had indicated that they would not be able to participate in budget discussions with the other municipalities and the board of education because of conflicts of interest. The borough clerk advised that the borough council would not be able to obtain a quorum for discussion or certification of the budget. The county superintendent then concluded that the four governing bodies would not be able to certify the amount necessary for school purposes and that N.J.S.A. 18A:22-38 required that the Commissioner of Education should determine the amount which
is necessary to provide a thorough and efficient system of public schools in the district.*fn1
Allen and Brush, two members of the Dover Township governing body, obtained an order to show cause seeking to compel the board to engage in consultation with the four municipalities pursuant to the provisions of N.J.S.A. 18A:13-19 and N.J.S.A. 18A:22-37.*fn2 The Borough of Pine Beach filed a complaint seeking similar relief. The two suits have been consolidated. The court first decided that it should proceed to resolve the controversy notwithstanding the Commissioner's asserted jurisdiction under N.J.S.A. 18A:6-9. Determining that this matter was of public importance requiring prompt disposition and was a question of law not requiring administrative expertise, the court found that the interest of justice required departure from the doctrine of exhaustion of administrative remedies. Matawan v. Monmouth Cty. Bd. of Taxation, 51 N.J. 291 (1968). The court entered an interim order directing that the consultation take place and that the conference need not be attended by a majority of any of the governing bodies but rather by representatives who could engage in the information gathering process.*fn3 The court reserved the issue of whether, after completion of the consultation, the Beachwood Council could legally
act on a certification of the necessary funds given the alleged conflicts of four of its seven members. This opinion addresses that issue.
At the outset, all parties agree that the four members of the Beachwood Council do have conflicts which would normally preclude their acting with respect to matters affecting the board of education. Councilman Brown's wife is a special education counselor. Councilman Leach's wife is a special student aide-counselor. Councilwoman Moran's husband is an administrator in charge of special education. Councilman Tilton is a substitute teacher in the Toms River school system.
In Sokolinski v. Woodbridge Tp. Municipal Council, 192 N.J. Super. 101 (App.Div.1983), a declaratory judgment was sought to determine whether five members of the Woodbridge Board of Adjustment were disqualified to hear a variance application concerning property owned by the Woodbridge Board of Education. Two of the five board of adjustment members were employed by the board of education: a tenured teacher and a tenured janitor. Three other board of adjustment members were spouses of board of education employees: a tenured teacher, an untenured bus driver and an untenured cafeteria worker. The Appellate Division found all five had a conflict of interest. I need not cite other voluminous authority supporting that conclusion. The facts in Sokolinski are not distinguishable from the facts before the court. Therefore, I find that the four Beachwood Council members are in conflict.
The parties also concede that since four of the seven members of the Beachwood Council have a conflict of interest, the council is precluded from mustering a quorum for the purposes of determining the budget question. Beachwood's attorney cited Aurentz v. Planning Board of Tp. of Little Egg Harbor, 171 N.J. Super. 135, 141 (Law Div.1979), for that proposition. It appears that Aurentz correctly states the rule that the presence of ...