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Legal Q & A



Deborah M. Kole, League Staff Attorney
Deborah M. Kole
League Staff Attorney

Incompatible Offices, Voting by Alternative
and Appointing Deputy Mayors

Q I am a newly-elected member of the Board of Fire Commissioners in our Fire District, and I am and have been for many years deputy chief of our local fire company. One of my colleagues tells me that I must give up one of my positions. I am willing to recuse myself from any Commission vote that directly affects my company, but he says this will not solve the problem. According to him, these two positions cannot be held by the same person under the doctrine of “incompatible offices.” What is this doctrine?

A Incompatible offices are positions that cannot be held by the same individual without an inherent conflict of interest existing. Unlike most conflicts of interest, the holding of incompatible offices cannot be cured by recusal from votes concerning certain issues.

In the case of Hollander v. Watson, 167 NJ Super. 588 at 592 (Law Div. 1979, aff. 173 NJ Super. 300, App. Div.1980), the Court described the doctrine this way:

“Offices are incompatible when there is a conflict or inconsistency in their functions. Therefore offices are not compatible when one is subordinate to or subject to the supervision or control of the other or the duties of the offices clash requiring the officer to prefer one obligation over the other.”

An obvious example of the “supervision and control” type of conflict is the incompatibility of the offices of Public Safety Director and Police Chief in the same municipality. As an example of the second type of conflict, it is clear that the same attorney could not be municipal prosecutor and municipal public defender in the same community because the duties of the two positions would clash.

Of course, in reality such incompatibility is rarely so clear cut. However, two Local Finance Board Advisory Opinions dealing with a situation like yours have determined that the two offices you currently hold are indeed incompatible. In Advisory Opinions #92-004 and #93-019, the Local Finance Board said “…those officials (serving on the Board of Fire Commissioners) who are in a position (in the fire company) to suggest, recommend or request services or other financial encumbrances of the Board would be in conflict for serving in both positions simultaneously. (These officials are) the chief, deputy chief, president and vice president of the fire company.”

 

 

Q Our municipality’s planning board also functions as the zoning board of adjustment. How many alternates can be appointed to the board, and when are these alternates allowed to participate and vote? If an alternate is needed to act on something, how do we determine which alternate should be chosen to vote? If we have an important vote scheduled, but one of the regular members is sick, may we postpone the vote, rather than have an alternate vote on the matter, since the regular member has more experience on the board, and is therefore better able to deal with the particular matter?

A A planning board that has been vested with the powers of the zoning board of adjustment under the Municipal Land Use Law may provide by ordinance for the appointment of up to four alternates. A separate planning board, on the other hand, may provide by ordinance for only two alternates. In either case, when the alternates are appointed, they shall each be designated by number as Alternate Number 1, 2, 3, or 4. If only one alternate is needed to vote on a given matter, Alternate Number 1 will vote; if two are needed, Alternate 1 and 2 will vote, and so on.

Alternates may participate in all board discussions, but may only vote if a member is absent or disqualified. As for delaying consideration of an issue because of a member’s absence, the statute concerning land use board and planning board alternates, NJSA 40: 55D-23.1, provides specifically that “A vote shall not be delayed in order that a regular member may vote instead of an alternate member.”

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Q Our municipality has a Mayor-Council Plan C form of government under the Faulkner Act. Can we appoint a Deputy Mayor?

A Under NJSA 40:69A-60.1, if a municipality with the Mayor-Council Plan C form of government has a population of more than 300,000, the mayor may appoint one or two deputy mayors, as well as a personal secretary, an executive secretary, and up to ten aides. If such a municipality has a population between 80,000 and 300,000, the mayor may appoint one or two deputy mayors, a personal secretary, an executive secretary, and up to seven aides

 

This column is for informational purposes only, and is not intended as legal advice.

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