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Legal Q & A

Matthew Weng
Matthew Weng
League Staff Attorney

Filling Council Vacancies
and Records Requests

Q A council-member recently resigned. I understand that there is a state statute that controls how to fill the vacancy. Are there different standards depending on when the vacancy occurred, and what type of government we are?

A You are correct in that there are different standards. The Municipal Vacancy Law is found at N.J.S.A. 40A:16-1 et seq. In Faulkner Act municipalities that hold municipal elections, if the vacancy occurs after September 1 of the final year of the individual’s term, the governing body appoints the person to fill the vacancy. If the vacancy occurs at any other time, it is filled at the next general or municipal election, whichever comes first. However, if the next general or municipal election occurs within 60 days after the vacancy, the office is filled at whichever one comes next. In this case, the governing body may fill the office temporarily until the election.

In towns holding general elections, the governing body appoints a successor any time after September 1 of the next-to-last year of the incumbent’s term. Any other time the position is filled at the next general election that is at least 60 days after the vacancy, with the council having the ability to fill the office temporarily.

When the council appoints someone to fill the office, whether permanently or temporarily, there are strict periods to follow.

If the person who left ran as a nominee of a political party, the town party committee has 15 days to present the council with three nominees for successors. The town has 30 days from the day of the vacancy to choose one from among the three. If an office has been vacant for 15 days and the town party committee has yet to present three nominees to the council, the council then has 15 days to name a replacement from the same political party as the member who caused the vacancy. If the town does not appoint any of the three within 30 days after the vacancy, the town committee chooses the replacement.

“If the incumbent whose office has become vacant was not elected to office as the nominee of a political party, the governing body may, within 30 days of the occurrence of the vacancy, appoint a successor to fill the vacancy without regard to party.” N.J.S.A. 40A:16-12

Q A citizen made a request for records dealing with a recent controversial decision in town. They are asking for a specific set of documents relating to our decision. Aren’t things like this exempt from disclosure under the deliberative process privilege? How can we tell if something is deliberative or not?

A The Open Public Records Act does provide an exemption to disclosure for documents that are “inter-agency or intra-agency advisory, consultative, or deliberative material.” In Gannett N.J. Partners v. Middlesex, 379 N.J. Super. 205 (App. Div. 2005), the Appellate Division helped define what exactly falls under this privilege.

The Court adopted a two-step process.

First, the documents must be predecisional, meaning the public body generated the document before they made their final decision. Next, and perhaps most obvious, the document must be deliberative in nature. This means that it must contain “opinions, recommendations, or advice about agency policies.” Purely factual or statistical information, even if used in predecisional deliberations, are not covered by this privilege. The Court further clarified that, as with all other exceptions, a mix of deliberative and non-deliberative material will not exempt an entire document from disclosure. Instead, the records custodian must redact the exempted material.


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


First published in New Jersey Municipalities, Volume 89, Number 3, March 2012

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