CITY OF JERSEY CITY Office of the Corporation Counsel saa map Jersey City, New Jersey 07302 Telephone: (201) 547-4667 Fax: (201) 547-5230 Jerramiah Healy, Mayor Bill Matsikoudis, Corporation Counsel January 9, 2012 Council President and Members of the Municipal Council City Hall-280 Grove Street Jersey City, NI. 07302 Re: Opinion-Ordinance Changing Term of Coun Council President’s Term President During Current Dear Council President and Members of the Municipal Council: INTRODUCTION As Councilperson Nidia Lopez requested, | have prepared an ordinance authorizing an amendment to the City Code whereby the Council will elect a new council president with a new term of office to commence upon the effective date of the ordinance. If adopted, the amendment would terminate the term of the current council president that expires on June 30, 2013. Although the Municipal Council adopted a similar amendment in the early 1990's, the legality of that ordinance was never challenged or questioned and it was rescinded three years later. For the reasons hereafter explained, there are serious legal doubts as to whether a Council President can be appointed at any meeting, other than the “organizational meeting” of the City Couneil, except to fill a vacancy in the offi president to be appointed at a regular council meeting midterm is not con: statutory authority governing the appointment of a council president under our form of government. Moreover, as discussed below, there are other significant legal vulnerabilities to the proposed ordinance, such as possible violations of the current council president's constitutional right to due process. If the ordinance is challenged in court by Couneil President Brennan or others; it could lead to the judicial invalidation of the ordinance . It appears that an ordinance that purports to allow a couneil tent with the ‘The issue is whether the council president was granted a term of office vested in him for the remainder of his council term, as the Resolution appointing him as council president purported to confer, or whether he can be removed without cause, meaning that he serves at the pleasure of a majority of the City Couneil. There is no judicial authority directly on point, thatCity of Jersey Ciey Office of the Corporation Counse! is, there is no case interpreting the statute authorizing the appointment of a council president under our form of government or a similar initiative by a Municipal Council to change a council president's term before the term the municipal council created, expired. But there is judicial authority interpreting similar statutes under analogous forms of government. These cases hold that the appointment of a council president may be made only at the so-called organizational meeting of the council. ‘There are also cases indicating that removal of an elected legislator from a position appointed his or her legislative colleagues, such as council president, without cause and without a hearing may be a violation of the United States" Constitution guarantee of Due Process. The precept that a person upon whom a term is bestowed, cannot have that term disrupted without cause, is also found in corporate law. So. while T understand and respect the desire of the City Council to organize and conduct its meetings as the majority of its members consider appropriate, it my duty as Corporation Counsel to advise the council about the possible limits on their authority and of the likely legal consequences of its actions. Councilperson Peter Brennan was elected Council President by the Municipal Council to serve the remainder of the term of former Council President Vega. Jr., who had been elected Council President on July 1, 2009, the quadrennial organizational meeting of this Council, to, “serve a four year term as provided in sec. 3-4 of the Jersey City Code.” Res, 09-501. On October 14, 2009 the Council adopted Resolution 09-857 which resolved that: 1. The resignation of Council Member Mariano Vega, Jr. is accepted without conditions. 2. Council Member Peter Brennan, is hereby appointed as Council President and shall serve for the remainder of his Council term as provided in Section 3-4 of the Jersey City Code. (Emphasis added), COUNCIL PRESIDEN ELECTED AT ORGANIZATION MEETING The position of Council President is authorized by State Statute N.LS.A. 40:69A-180(c) which provides in pertinent part that The Couneil at ts organization meeting shall elect a president of the council from among the members thereof and the president shall preside at its meetings and perform such other duties as the Council may prescribe. (Emphasis added). The Council, pursuant to this authority, adopted See. 3-4 (A) of the Jersey City Municipal Code witich provides that:City of Uersey City Office of the Comporation Counsel A. The Couneil shall organize pursuant to law on July 1 at which time it shall clect a president from among its members for a terat coextensive with the term of the Council; provided, however, that the election of July 1, 1994 shall be for a term of three years. (Emphasis added) Some municipal governing bodies are required by law to organize or reorganize annually. See NLS.A, 40:45A-1; N.LS.A. 40A:60- N.LS.A. 40A:61- J.S.A. 40A:62-3. Jersey City holds its organizational meeting every four years after a Regular Municipal Election since all the members of the Council and Mayor are elected to a four year term on a concurrent basis pursuant to Jersey City’s Municipal Charter. ‘The City of Newark also has its reorganization meeting every four years after its municipal elections since all city council terms are concurrent and up for election at the same time. See ice. 40:69A-13; NJS.A. 40:69A-14; NSA. | 40:69A-33; N.LS.A. 40:69A-34; Report of the Jersey City Charter Commission (July. 1960) Liebeskind v, Mayor and Municipal Council of Bayonne, 265 N.J. Super. 389(App. Div. 1993), is a case arising out of Bayonne, which has a similar to Mayor/Couneil form of government, in that the Council Members and Mayor are also elected every four years and have terms that run concurrently. That case interpreted the meaning of the term “organization under N.LLS.A. 40:69A-180 (c). Although the case concerned a dispute over the setting, of salaries, the Appellate Division recognized, “that N.JS.A. 40:69A-180 (c) refers to the quadrennial organizational meeting.” (Emphasis added). The Court went on to hold that another statute, N.J.S.A, 40A:9-165, authorized the compensation to be set at other than the quadrennial organizational meeting. Liebeskind_v. Mayor and Municipal Council of Bayonne, 265 N.t Super. 389, 398 (App. Div. 1993). No other statutory authority other than N.LLS.A. 40:69A-180 (c) authorizes a Faulkner ‘Act municipality that holds Regular Municipal elections every four years for concurrent terms, to set a meeting to elect a Council President at a meeting other than.its quadriennial organizational meeting. For example in the Borough form of government N.IS.A, 40A:60-3, Org: in pertinent part that ization; Officers; Meetings, provides a) ‘The Mayor and Council shall hold an annual meeting on the first day of January at 12 0’clock noon or during the first seven days in any year 5) Atits annual meeting, the Council shall by a vote of a majority of its number elect a president of the Council, who shall preside at all its meetings when the Mayor does not preside. The President of the Council shall hold office for one year and until the next annual meeting. He shall have the right to debate ‘and vote on all questions before council. (Emphasis Added) N.LS.A, 40A:61-6 governs cities whose charters were granted by 1899 City Law or any charter granted by the Legislature prior to 1875. This does not include a Faulkner Act municipality like Jersey City, which in 1961 abandoned the Commission form of government