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Legal Q & A

Matthew Weng
Matthew Weng
League Staff Attorney

Mayor Appointees and the Timing of Voter Referendums

Q My town operates under the Faulkner Act Mayor-Council-Administrator form of government. My question is in regards to unconfirmed mayoral appointments. The council never confirmed the Township Engineer after being reappointed by the mayor more than one year ago on Jan. 1 2009. Is there a limit as to how long someone can remain a holdover appointee?

A It depends.        
For example, in your form of government, the statute specifically states that “Each department head shall serve during the term of office of the mayor appointing him, and until the appointment and qualification of a successor.” Thus, the holdover would remain the official officer until a successor is named, if he is designated as the head of a department. N.J.S.A. 40A:69-149.9

The statute requiring municipalities to have engineers does not require them to be named as the head of a department: “In every municipality the governing body, by ordinance, shall provide for the appointment of a municipal engineer and fix his compensation in an annual salary or fixed fee basis or at an hourly rate and based upon actual time and expenses agreed on prior to the rendering of the services. No municipal engineer shall be compensated by receiving a percentage of the contract for which he renders services. Unless otherwise provided by law his term of office shall be 3 years.” N.J.S.A. 40A:9-140.

Even if the engineer is not a department head and thus not the official officer during the holdover period, he may be considered a de facto officer, and can continue as such indefinitely. As defined by the New Jersey Supreme Court, a de facto officer “…is that one who claims to be a public officer while in possession of an office and ostensibly exercising its function lawfully and with the acquiescence of the public…” Anything this de facto officer does, “if done within the scope and by the apparent legal authority of the office…” are binding upon the town. In re Fichner, 144 N.J. 459.

If there is a challenge, New Jersey courts have, in the past, required towns to work to break the impasse. In a Law Division case from 1987, a Judge ordered council members to attend a meeting where the appointment of an officer was going to be discussed; they had previously absented themselves to prevent a quorum. Smith v. Ghigliotty, 219 NJ. Super. 231.

Council confirmation is required for a person to become an officer in the first place. Therefore, it is not just a technicality.

The council may sue the mayor in an attempt to force him to appoint an engineer. Conversely, a mayor may sue the council to force them to vote on his appointment.

That is essentially what happened in Smith v. Ghigliotti.




Q We are seeking to put a binding referendum pursuant to NJSA 40A:9-167 on the ballot in May. Are you aware of any reason why such a referendum cannot be put on the ballot in May? Some suggest it should only be in November. In addition, what is the deadline for filing the referendum ordinance with the clerk?

A As for the timing, referenda may be placed on the ballot at the next regular general or municipal election. If the regular municipal elections are in May, then the referenda can be voted on then as well.

As for the timing for the clerk, take a look at N.J.S.A. 40:69A-192. “Any ordinance to be voted on by the voters in accordance with…this act shall be submitted at the next general or regular municipal election occurring not less than 40 days after the final date for withdrawal of the petition…provided that if no such election is to be held within 90 days the council shall provide for a special election to be held not less than 40 nor more than 60 days from the final date for withdrawal of the petition as provided for…this act.”

You have 10 days after submission to withdraw a referendum request. N.J.S.A. 40:69A-191.

This seems to say that, if you want it on the next regular municipal election, you need to give at least 50 days. If it is less than 50, or more than 90, then a special election must be held, to take place between 40-60 days after the final date for withdrawal.

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

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