Q We operate under the Borough form of government and are attempting to pass a bond ordinance. What are some of the differences in procedure between passing most ordinances and passing a bond ordinance? Does this pass by a simple majority? In addition, is there a timeframe for someone to challenge a bond ordinance, so we can be prepared?
A The The requirements for the passage of a bond ordinance are different from that of most other ordinances.
In the first place, most other ordinances are passed by an affirmative vote of a majority of the council present. For example, suppose a six-member council had four members present and two absent or vacant. A normal ordinance could pass by a vote of 3-1, since three votes would be a majority of the four members present.
In the case of a bond ordinance, N.J.S.A. 40A:2-17(b)(2) requires that the ordinance pass with “the recorded affirmative votes of at least two-thirds of the full membership of the governing body.” The fact that the bond ordinance requires a two-thirds vote of the full membership is an important distinction from most other ordinances. Unlike the example above, a 3-1 vote in a six-member council would not be sufficient for passing a bond ordinance. This is because two-thirds of the full membership of a six-member council is 4 votes. No matter how many individuals are present, absent, or even vacant, a bond ordinance must have two-thirds of the full authorized membership of the voting body.
The ability to challenge a bond ordinance is also similar to most other ordinances, but contains some very important differences.
According to N.J.S.A. 40A:2-17(c), “Every bond ordinance shall be published either in full or in summary form after final adoption, together with a statement in substantially the following form:
The bond ordinance published herewith has been finally adopted and the 20-day period of limitation within which a suit, action or proceeding questioning the validity of such ordinance can be commenced, as provided in the Local Bond Law has begun to run from the date of the first publication of this statement.”
Thus, 20 days after publication of this statement, if there are no challenges, a bond ordinance is in effect and not subject to a challenge
Q As a new municipal attorney, I was curious about issues dealing with ethics and representation that may be unique to an attorney representing a municipality or a municipal agency. One of the issues I have heard I should be aware of is the municipal family doctrine. What can you tell me about that?
A It is important to remember that a municipal attorney is still subject to the same ethics and conflict rules that any other attorney would be. However, you are correct that the nature of representing a public body carries with it some unique issues to be aware of. The Supreme Court’s Advisory Committee on Professional Ethics has issued some opinions that may be helpful.
Perhaps the most important is what is commonly called the municipal family doctrine, which has two essential components.
First, in the broadest sense, the municipal family doctrine is the idea that the municipal attorney has as their client not just the council or the mayor, but the entire municipality.
Second, unlike private clients, a public client cannot give consent as a way to cure a conflict.
These two factors combined mean, at the most basic level, that a municipal attorney cannot represent a client in front of any agency in the town they represent. In Opinion 214, the ACPE stated that a municipal attorney must “avoid all situations that might reasonably lead the public to conclude that he has used the influence of his office to serve private interests or which otherwise cast doubt upon his fidelity to the municipality which he serves."
This column is for informational purposes only, and is not intended as legal advice.