Booker v. Rice, L-8586-12, L-8536-12; Law Division, Essex County; opinion by Carey, P.J.Cv.; decided December 11, 2012; approved for publication July 5, 2013. DDS No. 21-3-0534 [23 pp.]
Newark is governed by a mayor-council form of government pursuant to the Faulkner Act, N.J.S.A. 40:69A-1 to -210. The city's charter requires that the municipal council have nine members. In November 2012, Councilman Donald Payne Jr. resigned. The council convened with seven of the eight remaining members — Councilman Rice did not attend — and Shanique Davis Speight was nominated to fill the vacancy. Under N.J.S.A. 40A:16-7, Speight could only be appointed on receiving a majority vote of the remaining members, i.e., five votes. She received four "yes" votes and three "no" votes. Rice's abstention was deemed to be a "no" vote, resulting in a 4-4 tie, although the council rules specify that an abstention is neither a "yes" or "no" vote. The mayor then exercised his statutory power under 40A:16-8 to break the tie and voted in favor of Speight, thereby providing the fifth vote required.
