Corvelli v. Fonseca
Corvelli v. Fonseca
Opinion of the Court
This matter involves interpretation of the Municipal Vacancy Law, N.J.S.A. 40A:16-1 et seq. as to when a vacancy in an elected office occurs.
Antonio Fonseca [“Fonseca”] was elected to the Hillside Township Council on May 13, 1997, as the Ward 4 Councilperson. He took office on July 1, 1997, for a term of two years, expiring on June 30, 1999.
The question before the court, therefore, is whether a canceled meeting is an event contemplated by the term “meeting” in N.J.S.A. 40A:16-3(g), and, consequently, whether Fonseca’s pres
The office of ... a member of the governing body of a municipality shall be deemed vacant ...
g. Whenever ... a member of the governing body fails to attend and participate in any meetings of the governing body for a period of 8 consecutive weeks without being excused from attendance by a majority of the members of the governing body, at the conclusion of such period; N.J.S.A. 40A:16-3.4
There is a preliminary issue that must first be addressed, as to the operative date on which the eight week period set forth in N.J.S.A. 40A:16-3(g) began to run. Plaintiff urges that the court apply the formula set forth in Levin v. Woodbine Borough Council, 181 N.J.Super. 61, 436 A.2d 564 (Law Div. 1981). There, the Mayor of the Borough of Woodbine brought an action seeking an order reinstating him to that office. The mayor conceded that he had failed to attend meetings of the council for twelve consecutive weeks. Pursuant to the Municipal Vacancy Law, the council adopted a resolution stating that because the mayor had failed to attend and participate in council meetings for eight consecutive weeks without being excused, the office of mayor was deemed vacant.
The court first determined that under the Borough form of government (N.J.S.A. 40:88-1 et seq.), the mayor is required to attend Borough Council meetings, and therefore § 3(g) of the Vacancy Law was applicable. With regard to the starting date of the eight week period, it was noted that the possibilities included the date on which Levin last attended a meeting, the date on which the next meeting had been scheduled but was not held due to lack of a quorum, and the date on which the following regularly
The court concluded that accomplishing this legislative intent required that the office be deemed vacant upon the expiration “of the earliest eight week period.” Id. (emphasis added). It therefore found that the eight week period should begin to run on the day after the mayor had last attended a meeting. Consequently, the court ruled that by operation of N.J.S.A. 40A:16-3(g), the mayor’s office was vacant as a matter of law at the conclusion of the eight week period that began on the day after the date of the last meeting that had been attended.
This court declines to follow the formula for measurement of the eight week period set forth in the Levin decision. Although the desire to ensure that vacancies are filled as quickly as possible is the main priority apparent in the very limited legislative history of the Municipal Vacancy Law, this does not necessarily compel the conclusion that the operative date for the period to run is the day after the last meeting attended. Significantly, since it is the Legislature’s intent that elected officials be present at meetings to serve the interests of their constituents, an official would not be in contravention of this goal until he or she has actually missed a meeting. Moreover, on the day following the last attended meeting, it is simply not known whether the next meeting will be attended or not, or indeed whether the meeting will in fact occur.
For these reasons, I hold that the operative day on which the eight week period begins to run is the date of the first meeting in which the official fails to “attend and participate.”
The more fundamental issue, not addressed in any published opinion, requires a determination of what constitutes a “meeting” for purposes of the Municipal Vacancy Law.
Plaintiff submits that the court should look to the definition of “meeting” found in the Open Public Meetings Act, N.J.S.A. 10:4-8(b), which states that the term “does not mean or include any such gathering (1) attended by less than an effective majority of the members of a public body.” Although the “Sunshine Law” carries a different purpose (insuring the public’s right to be present and witness discussion, deliberation and decision making), its definition of meeting is helpful here in that it speaks to an event where “the members of the body present (intend) to discuss or act as a unit upon the specific public business of that body.” N.J.S.A. 10:4-8b. Certainly, when cancellation occurs due to the absence of a quorum, such an event does not occur. The presence of a member of the body has no significance. “[Djeliberation, policy formulation, and decision making” cannot take place. N.J.S.A. 10:4-7.
[I]f a quorum fails to appear at a regular or properly called meeting the inability to transact business does not detract from the fact that the society’s rules requiring the meeting to be held were complied with and the meeting was convened — even though it had to adjourn immediately. The Scott, Foresman, Robert’s Rules of Order, Newly Revised, 1990 edition, p. 341.
Here, when the Council Vice President determined there would not be a sufficient number of members to constitute a quorum and •therefore announced several hours in advance the cancellation of the meetings, there was nothing to convene at 8:00 p.m. Furthermore, there does not appear to be any council By-Law or Rule of Procedure that directs just what is to take place in such circumstances, if anything.
In the final analysis, the question raised in this case is answered by the language of N.J.S.A. 40A:16-3(g) itself. It is significant that the statute uses the phrase “attend and participate” in describing meetings. Common sense dictates that if a meeting is canceled, the effect is that there is then nothing in which to “attend and participate”; there is no “meeting” of the governing body which the member can participate in. It is urged that Fonseca should not be penalized by the unexpected cancellation of these meetings, as on each occasion he was present and thereby demonstrated responsible office holding. Indeed, in that respect he cannot be faulted. Such position, however, overlooks what the statutory scheme seeks to accomplish: attendance and participation of elected members of a governing body at its meetings which do take place, without unexcused absence, for as long as eight consecutive weeks.
The clear purpose of assuring the public its elected officials have not abandoned their interests but are faithfully and regularly attending to the business of the municipality would not be furthered by including in this context presence at meetings which are canceled. Rather, what the statute seeks to achieve is having elected officials present at meetings that do occur, unless otherwise excused.
Representative government imposes a responsibility upon elected officials to give proper attention to the duties of their office, one of which is the regular attendance at and participation in the meetings of the body to which they have been elected. The public is entitled to know it is being represented and not neglected by those it has placed in office. The Municipal Vacancy Law creates a vacancy in the office when a member has neglected that duty and failed to attend meetings for a consecutive eight week period. Correspondingly, the member is charged with knowing of the meetings of the governing body, of his or her own absences, and of the requirements of the law.
Fonseca and the Township urge that this result could encourage manipulation of the law and allow the pretextual cancellation of meetings of governing bodies in an attempt to oust a member from office. There is no evidence of such nefarious purpose in this case. The testimony of the absent Council members shows each meeting was legitimately canceled due to the lack of a quorum.
Under the Optional Municipal Charter Law (Faulkner Act), N.J.S.A. 40:69A-1 et seq., Hillside voters adopted a change in their form of government to the mayor-council plan with the municipal election held on the second Tuesday in May, pursuant to the Uniform Nonpartisan Elections Law, N.J.S.A. 40:45-5 et seq.
Plaintiff has named each member of the Township Council as a party defendant in this matter. It must be noted that a number of actions coming before this court seeking relief against governing bodies and boards of municipalities name the individual members of such governing bodies and boards as parties defendant. This practice is clearly not necessary, and, on the contrary, creates, as we have here, the awkward and unneeded situation in which the municipality and various members of its governing body are represented by different attorneys. With the exception of Mr. Fonseca, there is no cause of action against the individual members of the Township Council. Clearly, the members of the Council are bound by decisions rendered in favor of or against
The language of the companion statute provides a vacancy in the office of a person appointed to “any board, committee, commission, authority or other agency” shall occur when the member without being excused "fails to attend and participate at meetings of such body for a period of 8 consecutive weeks, or for 4 consecutive regular meetings, whichever shall be of longer duration, at the conclusion of such period” N.J.S.A. 40A:9-12.1(g).
The language of the statute suggests that the eight week period would begin to run upon the failure of an official to attend and participate in any regular or special meeting of the governing body, as N.J.S.A. 40A:16-3(g) specifically refers to "any meetings of the governing body."
Case-law data current through December 31, 2025. Source: CourtListener bulk data.