Brick Mayor Blocks Township Ordinances with Veto

Brick-(PR)– Mayor Stephen C. Acropolis has vetoed two ordinances that the Township Council recently passed.  Mayor Acropolis provided the Township Clerk with a letter stating his objections to the ordinances in accordance with New Jersey State Law (N.J.S.A. 40:69A-41(a)), which vetos the ordinance.

“The Council’s refusal to answer any questions or provide any proof that they did any financial analysis about the impact of these ordinances has given me no choice but the veto them,” said Mayor Acropolis.  “Everything about these ordinances – their intent, the way they were written, they way they were submitted, the way they were voted in after the attorney urged caution – leaves more questions unanswered then answered and has exposed the township to litigation.  They are probably the most irresponsible and worst handled pieces of legislation I have seen in my seventeen years as an elected official in Brick Township.”

The Township Council can override the Mayor’s veto with a super majority vote of at least 5 yays to 2 nays.  On September 25, the Township Council passed the ordinances by a 4-3 vote with Councilmen Bob Moore, Joseph Sangiovanni and Domenick Brando voting against them.

The ordinances that were passed intend to reorganize the township, eliminate some supervisory positions and create others. Ordinance 31-12 amends the Township Administrative Code by restructuring the township’s departments including Parks and Recreation, Public Works, Community Development and Land Use, the Township Clerk and the Township Administration.  Ordinance 32-12 eliminates eight positions and creates three.  Of the 8 titles the ordinance eliminates, 6 are already vacant.

The Township Attorney advised the Council that passing the ordinances without providing effected employees with required notification could constitute a violation of the Open Public Meetings Act.

“The attorney told the Council her concerns with the ordinances and they chose not to listen and, in the attorney’s view, they violated the law,” said Mayor Acropolis.  “It is my hope that their reckless actions don’t end up costing the taxpayers money in defending lawsuits.”

Mayor Acropolis says the ordinances are inconsistent, citing the creation of some supervisory roles and eliminating others.  “I asked the Council to justify eliminating a deputy department head to help oversee 80 employees while creating one that helps oversee 4.  They wouldn’t answer.  They even created a third supervisor in a department of 7 people.  Even with New Jersey government’s standards, that’s a lot.”

“This is another example of this Council moving forward without weighing all of the benefits and costs,” said Mayor Acropolis.  “They did it with the Traders Cove ordinance when they eliminated the funding for the bathrooms and then had to go back and put them back in, which cost time and money.  They did it with their sloppy mayor’s salary ordinance that was written to preserve a higher salary for them in the future if they ran.  But these ordinances take the cake and unfortunately, it looks like we are going to have to defend them in court, regardless if the veto is overrode or not.  At the end of the day, the taxpayers are the ones losing.”

Text of Mayor Veto

“Dear Madam Clerk:

This correspondence serves as notice of my veto, as Mayor of the Township of Brick, of Ordinances 31-12 and 32-12 adopted by the Brick Township Council on September 25, 2012.  Pursuant to N.J.S.A. 40:69A-41(a). the following constitute objections to such ordinances.

There are numerous problems with these ordinances, procedurally, substantively and in terms of the information, or lack thereof, which was presented to the public, the Administration and even some Council Members regarding its actual impact on Township personnel and finances.   Despite repeated statements were made by the Council President that the effect of these ordinances would be to save the Township $418,000.00, at no time did the Council President contact me to request a full cost/savings analysis by the Township Administrator/CFO, Scott Pezarras.  As Mr. Pezarras stated at the September 25, 2012 council meeting, his analysis shows that the current organizational structure of the Township produces an actual cost to the taxpayers of $604,828 in total compensation. The potential under the new ordinances carry a cost of $736,422 in total compensation.

As an initial matter, not only was this ordinance dropped onto the agenda without prior notice to me, the Township Administrator, the Township Attorney and several Council Members, but effected employees were not given the notice that simple courtesy, and the law, require.

Case law interpreting the Open Public Meetings Act provides two rights to the public employee who may be adversely affected by a personnel action or decision of his employer: the right to privacy and the right to public discussion after adequate notice.  Both of those rights were violated by the manner in which this ordinance was presented.

By not affording the employee proper notice and holding the discussion in public, the right of privacy is infringed upon.  The employee(s) did not have the opportunity to opt for either private or in public discussion.  Based on the infringement of the right to privacy, the actions of the Council have violated OPMA by (1) not affording reasonable notice to all employees and (2) violating the right to privacy of the employees by discussing their employment in public session when not all of the individual employees requested that it be in public

Such a failure to provide what is usually called Rice Notice to affected employees is a violation of the Open Public Meetings Act.  The purpose of the Rice notice is so that employees may request a public hearing for the discussion of the terms and conditions of their employment by the public body. If the action deprives the employee of substantive or procedural due process rights, or rights under the New Jersey Civil Rights Act, a remedy could be to void the action taken by filing a complaint and order to show cause with the Superior Court within 45 days.

The first reading of an ordinance is an official “action” of a governing body.  N.J.S.A. 40:49-2. Passage upon first reading is required for adoption of an ordinance.  Therefore passage of an ordinance on first reading is an official action that could be voided.  If there was no valid passage on first reading, there can be no valid adoption on second reading.

These ordinances are also not in accordance with the division of powers within the Faulkner Act Mayor-Council Plan. It is the intent of the mayor-council plan of government to confer on the council general legislative powers, and such investigative powers as are germane to the exercise of its legislative powers, but to retain for the mayor full control over the municipal administration and over the administration of municipal services.   Id. N.J.S.A. 40:69A-37.1.

Essentially these ordinances represent an attempt to transform legislative power into administrative power. Where one branch of government has been specifically vested with the authority to act in a prescribed manner, neither of the other branches may usurp that authority.

Under the Faulkner Act the Council may:  Appoint within Clerk’s office and the Township Auditor, must provide advice and consent to Department Heads and may set salaries for Mayor, Council Members and Department Heads and provide compensation for CFO, Tax Assessor.  Council may also veto Mayor’s removal of Department Head and “[r]emove, by at least two-thirds vote of the whole number of the council, any municipal officer, other than the mayor or a member of council, for cause, upon notice and an opportunity to be heard”.

Once elected, the mayor is empowered to, among other things, “[s]upervise, direct and control all departments of the municipal governments,” and appoint the heads of all administrative departments, and approve or veto all municipal ordinances.  The mayor’s authority under the Faulkner Act’s Mayor-Council Plan is, therefore, substantial, and as stated by the New Jersey Supreme Court, “[i]t is no accident that this plan has been adopted by virtually all of New Jersey’s largest municipalities-places in which there is a need for visible, effective leadership to pursue programs with the full support of the administration.”

McCann v. Clerk of City of Jersey City, 167 N.J. 311, 330, 771 A.2d 1123, 1134 (2001)

By eliminating Departments and Department head positions without the recommendation or consent of the Mayor; these ordinances eliminate the positions of employees who could otherwise not be removed by the Council.  This is not a clear area of the law as it raises a conflict between separate provisions of the Faulkner Act. Additionally, elimination of a department is tantamount to a layoff, even though the proper procedure has not been followed. As a civil service jurisdiction the council cannot consider this ordinance in a vacuum as if civil service rules do apply.

The Faulkner Act provides that each department shall be headed by a director, who shall be appointed by the mayor with the advice and consent of the council.  N.J.S.A. 40:69A-43(b).  Each department head shall serve during the term of office of the mayor appointing him, and until the appointment and qualification of his successor.

The mayor may in his discretion remove any department head and, subject to any general provisions of law concerning term of office or tenure, any other municipal executive officer who is not a subordinate departmental officer or employee, after notice and an opportunity to be heard.   N.J.S.A. 40:69A-43(c).  Prior to removal the mayor shall first file written notice of his intention with the council, and such removal shall become effective on the 20th day after the filing of such notice unless the council shall prior thereto have adopted a resolution by a two-thirds vote of the whole number of the council, disapproving the removal.  Id.

The Council has no authority to remove Department Heads except for its general power to remove employees for cause.  In the absence of such cause, the Council may neither appoint nor remove except in those select areas over which they have been given greater control pursuant to the statutory scheme.

New Jersey’s Appellate Division has held that a Faulkner Act municipal government may not adopt an ordinance which would authorize the city council to appoint certain officials since this would be contrary to the terms of the statute. As such, it would also hold true that a city council could not adopt an ordinance terminating any official contrary to the terms of the statute.

Additionally, in the ordinance, the Council gives to itself a power that does not appear in the Faulkner Act – that of advice and consent of the Council to an appointment to a subordinate position. The Council cannot give itself powers through an ordinance that are in excess of the powers granted by statute:

N.J.S.A. 40:69A-43(d) provides for the appointment and removal of subordinate officers and employees within the departments: ‘(d) Department heads shall appoint subordinate officers and employees within their respective departments and may, with approval of the mayor, remove such officers and employees subject to the provisions of the Revised Statutes, Title 11, Civil Service, where that Title is effective in the municipality, or other general law; provided, however, that council may provide by ordinance for the appointment and removal of specific boards or commissions by the mayor.’  (Emphasis added).  The section does not limit the power of removal granted to department heads to cases of removal for cause; the only prerequisite to the exercise of the power is the approval of the mayor.  Id. at 104-105.

The Courts have stated:

The legislative purpose is clear.  The department head is responsible to the mayor, who may remove him at will subject only to veto by a two-thirds vote of the whole number of the council.  The department head, in turn, is responsible for the performance of his subordinate; except where tenure statutes intervene, he is therefore given power to remove the subordinate if the mayor, who appointed the department head, approves.

These ordinances also attempt to sets salaries for employees whose salaries are, pursuant to statute, to be set by the Mayor.  The mayor shall, subject to any pertinent civil service requirements and any pertinent contractual obligations, and within the general limits of the municipal budget, fix the amount of salary, wages or other compensation to be paid to employees of the administrative departments of the municipal government, “except that the salary, wages or other compensation paid the director of each department shall be fixed by the council” pursuant to N.J.S.A. 40:69A-180(c), and except that salaries of officers which are required by law to be fixed by ordinance shall be fixed by ordinance.  N.J.S.A. 40:69A-43a. The salaries that are required to be set by ordinance are Administrator (NJSA 40A:9-136), CFO (NJSA 40A:9-140.10), and Tax assessor (NJSA 40A:9-146).

While in many forms of government, all compensation is set by ordinance, that is not the case in the Faulkner Act Mayor-Council Plan. The phrase “unless otherwise provided by law” in statute regarding compensation for municipal employees carved out an exception from the general requirement that compensation be set by the governing body by ordinance for certain forms of municipal government in which the mayor possessed that authority.

Additionally, if the Council was ultimately determined to have the authority to set the ranges for these positions, the ranges themselves, $0-$118,761 are too large and leave too much discretion in determination of actual salary.  The range must meet its statutory obligation of fixing salaries.  Case law states that the range within which the exercise of discretion is left to less formal determination may not be so great as to emasculate the ordinance of its salary-fixing force.

There is also the creation of a new title in the Clerk’s office which is legally permissible action by the Council but which eliminates many of the job duties of one employee, the Assistant Clerk and transfers all of the duties of the Council Secretary.  Both of these employees are civil service protected and are union members – it is unclear how the Council has acted to acknowledge and protect the rights of these employees.

For the above-stated reasons, I, Stephen C. Acropolis, Mayor of the Township of Brick, County of Ocean, State of New Jersey, hereby VETO, 31-12 and 32-12 adopted by the Brick Township Council on September 25, 2012.

Posted by Ocean County News on Oct 4 2012. Filed under Brick, Politics. You can follow any responses to this entry through the RSS 2.0. You can skip to the end and leave a response. Pinging is currently not allowed.