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In re An Initiative Petition for Adoption of an Ordinance to Amend Jackson Twp.

Superior Court of New Jersey, Appellate Division

September 8, 2014

IN THE MATTER OF AN INITIATIVE PETITION FOR THE ADOPTION OF AN ORDINANCE TO AMEND THE JACKSON TOWNSHIP ADMINISTRATIVE CODE

Argued February 26, 2014

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1217-13.

Renée Steinhagen argued the cause for appellants Nicolas Antonoff, Catherine V. Giancola, Richard F. Davidson, Raymond J. Cattonar, and Roger E. Downing ( Zazzali, Fagella, Nowak, Kleinbaum & Friedman, and New Jersey Appleseed Public Interest Law Center, Inc., attorneys; Ms. Steinhagen and Flavio L. Komuves, on the brief).

Kevin N. Starkey argued the cause for respondents Mayor and Township Council of Jackson Township ( Starkey, Kelly, Kenneally, Cunningham & Turnbach, attorneys; Mr. Starkey, on the brief).

Before Judges GRALL, NUGENT, and ACCURSO. The opinion of the court was delivered by NUGENT, J.A.D.

OPINION

Page 720

[437 N.J.Super. 206] NUGENT, J.A.D.

This appeal involves a governing body's pre-election challenge to an ordinance proposed in an initiative petition. The trial court declared a section of the ordinance unlawful but, notwithstanding a severance clause in the ordinance, declined to sever the unlawful section and order that the excised ordinance be placed on the ballot. We affirm. We conclude that the trial court had the authority to hear the pre-election challenge to the proposed ordinance. We further conclude that the court did not have the authority to revise the ordinance and order that the altered ordinance be placed on the ballot.

I.

Appellants, Nicolas Antonoff, Catherine V. Giancola, Richard F. Davidson, Raymond J. Cattonar, and Roger E. Downing, were the Committee of Petitioners responsible for an initiative petition to amend a Jackson Township ordinance. Respondents are the Mayor and Council of Jackson Township. Jackson Township is organized under the Optional Municipal Charter Law (the Faulkner Act), N.J.S.A. 40:69A-1 to-210. The power of local self-government in municipalities organized under the Faulkner Act includes, with some exceptions, the right of voters to " propose any ordinance and . . . adopt or reject the same at the polls, such power

Page 721

being known as the initiative." N.J.S.A. 40:69A-184. " Any initiated ordinance may be submitted to the municipal council by a petition signed by" a required percentage of legal voters. Ibid. ; see also N.J.S.A. 40:69A-185 (setting forth the procedures for the referendum process).

The petition must contain " the names and addresses of five voters, designated as the Committee of the Petitioners, who shall be regarded as responsible for the circulation and filing of the [437 N.J.Super. 207] petition and for its possible withdrawal as hereinafter provided." N.J.S.A. 40:69A-186. As previously noted, appellants are the Committee of Petitioners responsible for filing the petition and proposed amended ordinance that are the subject of this appeal.

The events that led to the initiative in this case began in November 2011 when two of the appellants, Catherine V. Giancola and Raymond J. Cattonar, prepared a " Jackson Township Feasibility Study" on the topic of " Insourcing [the] Legal Department." Their study " relied on, among other things, extensive interviews of knowledgeable persons, and a thorough review of available literature on the matter."

The purpose of the study was to " ascertain whether it is more cost effective to retain an in-house legal staff versus outsourcing Jackson Townships [sic] legal needs," which was the practice at the time. The study recommended, as a cost-saving measure, employing in-house counsel and a paralegal instead of outsourcing legal work to a private firm. The study also proposed a shared-services agreement between the Township and the Jackson Board of Education (the Board), in which the Township's new in-house counsel would also handle legal matters for the Board, at no additional cost. The Township and the Board would still be able to retain outside counsel for specialized legal services that could not be handled by the new in-house attorney and paralegal.

From November 2011 through January 2012, appellants " oversaw the drafting of the petition and ordinance" that proposed to amend the Township's code provisions concerning its legal department and municipal attorney. The ordinance provides:

1. Section 3-87 of the Jackson Township Administrative Code is amended to read as follows:
A. There is hereby created the Department of Law, the head of which shall be the Director of Law, who shall be the Municipal Attorney. The Director of Law shall be a full-time salaried position, the compensation for which shall be fixed by the Council. There is also created the position of Paralegal Specialist within the Department of Law which shall be a full-time salaried position, the compensation for which shall be fixed by the Council. No full-time attorney of the Division of Law shall engage in any other practice of law for compensation unless the Mayor, [437 N.J.Super. 208] in a signed writing, has approved the particulars of such other employment or practice of law.
B. The Director of Law and the Paralegal Specialist shall be appointed by the Mayor with the advice and consent of the Township Council and, unless provided by other law, shall serve at the pleasure of the Mayor and Council. The Municipal Attorney shall be a graduate of an accredited law school duly admitted to the practice of law in the State of New Jersey for at least five years and an attorney at law of the State of New Jersey in good standing.
C. In order to efficiently and competently discharge the duties of the Division of Law, the Director of Law, within the limits of available appropriations, may retain other attorneys, paraprofessionals and other staff, either on a full-or

Page 722

part-time salaried or contract basis. Any retention of the services of other persons shall not be effective until disclosure of the person(s) retained and the purpose of their retention is made in writing to the Municipal Council at a public meeting.
D. The Division of Law, acting through its Director or such other person who has been delegated authority by the Director, shall be a legal advisor to the Mayor, Council and all departments, except as otherwise provided by the Charter or the Township Code. The Division of Law, acting through its Director or such other person who has been delegated authority by the Director, shall prosecute and defend actions and proceedings by and against the Township and ...

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