Zimmer v. Castellano, A-2559-12T4; Appellate Division; opinion by Fisher, P.J.A.D.; decided and approved for publication July 5, 2013. Before Judges Fisher, Alvarez and St. John. On appeal from the Law Division, Hudson County, L-5410-12. DDS No. 21-2-0532 [12 pp.]

Pursuant to the Faulkner Act, N.J.S.A. 40:69A-1 to -210, Hoboken maintains a mayor-council form of government, with nine council members and a mayor. In September 2012, Councilwoman Carol Marsh tendered her resignation. On Oct. 3, 2012, the effective date of the resignation, the council held its regularly scheduled meeting with seven of the eight remaining members in attendance. James Doyle was nominated to fill the vacancy. Four council members voted "yes," two voted "no," and one abstained. Those who voted yes took the position that the abstention and the absence of another should be considered "no" votes, thus resulting in a 4-4 tie that permitted Mayor Dawn Zimmer to use her power under N.J.S.A. 40A:16-8 to break the tie. She voted for Doyle.

For reasons not entirely clear, at the next council meeting on Oct. 17, 2012, the council again voted to fill the vacancy. The voting was similar and the mayor again voted in favor of Doyle.

The council members who either voted "no," abstained, or were absent (the Castellano group) filed a verified complaint contesting the validity of Doyle's appointment. The trial judge held that neither the Oct. 3 nor the Oct. 17 votes resulted in a tie and, consequently, the mayor was not authorized to cast a vote on those occasions. There was no appeal.

Instead, those who had voted for Doyle (the Zimmer group) filed this action and obtained an order that required the Castellano group to show cause why (1) all remaining council members should not appear at a meeting to consider filling the vacancy; (2) the 30-day limit on the filling of vacancies in N.J.S.A. 40A:16-12 should not be tolled; and (3) an abstention should not be counted as a negative vote.

The judge decided to toll the statutory deadline and directed all remaining council members to appear at a meeting to revote on Doyle's candidacy.

At that meeting, the same four voted in Doyle's favor, two voted against, and two abstained and the mayor voted in favor of Doyle. The trial judge determined that the abstentions were to be treated as negative votes, thus creating a tie that permitted the mayor to vote.

The Castellano group appealed.

Held: Applying Robert's Rules of Order, as required by Hoboken's procedural rules because of an absence of a rule regarding the meaning of an abstention, the trial court erred in counting the abstentions as "no" votes that created a tie, entitling the mayor to vote on the nomination. The court erred in ordering the remaining council members to vote on filling the council vacancy because the council was not required to act.

The panel says N.J.S.A. 40A:16-12 only declares that the governing body "may" fill a vacancy and only "within 30 days of the occurrence of the vacancy." The four affirmative votes were insufficient because 40A:16-7 requires a majority of the remaining council members. Without a fifth "yes," the vacancy could not be filled, and without a tie and the mayor's "yes" vote, there could be no fifth vote in Doyle's favor. Because the council failed to fill the vacancy within 30 days, the matter is reversed.

The panel notes that the Zimmer group did not appeal the trial judge's finding that the attempts on Oct. 3 and 17 to seat Doyle were invalid. Thus, a finding is not before the panel. It is binding on the parties and, in fact, ended the controversy because those were the council's only attempts to fill the vacancy within the 30-day window.

The panel also says its decision is informed by the fact that the council was not required to fill the vacancy. N.J.S.A. 40A:16-12 provides the remaining members with the discretion to fill a vacancy. Thus, the judge was not empowered to compel a vote on the subject because the council was not required by law to act.

Further, the panel says that even if there were no bar to the action and if the final vote could be viewed as falling within the 30-day window, that action would be invalidated because the abstentions were incorrectly interpreted as negative votes.

A governing body may adopt rules of procedure that are to be given effect so long as they are not inconsistent with ordinance or statute. However, Hoboken's rules of procedure do not explain what it means to abstain. Therefore, the panel resorts to Robert's Rules of Order, as provided for in Hoboken's rules.

Robert's Rules declare that to abstain means not to vote at all. The trial judge concluded that because Robert's Rules recognizes that an abstention may at times have the same effect as a negative vote, the abstentions should be counted as "no" votes. The panel says the judge was mistaken, because an abstention is actually not a vote at all.

For appellants — Jerry H. Goldfeder, of the N.Y. bar, admitted pro hac vice (Strook & Strook & Lavan; Gregg F. Paster & Associates and Goldfeder; Goldfeder and Steven W. Kleinman on the brief). For respondents — William W. Northgrave (McManimon, Scotland & Baumann; Northgrave and Ted Del Guercio III on the brief).