menna o'hern seal 010114Borough Attorney Dan O’Hern, right, with Mayor Pasquale Menna earlier this year. (Photo by John T. Ward. Click to enlarge)


HOT-TOPIC_03A push by Red Bank’s Democrat-controlled council to pass a $2.2 million water-meter-replacement bond by the end of the year can move forward, according to borough Attorney Dan O’Hern.

O’Hern tells redbankgreen that Mayor Pasquale Menna’s belated “tiebreaker” vote to introduce the bond last week was permissible, even though the mayor is allowed under state law to vote only in the event of a council tie. The council vote was two in favor and one opposed, with one abstention.

But the abstention, by soon-to-depart Councilwoman Juanita Lewis, was tantamount to a “no,” O’Hern said Monday, citing recent cases involving Newark and Hoboken.

As redbankgreen reported last week, Democrats Kathy Horgan and Ed Zipprich voted in favor of introduction and lone Republican Cindy Burnham cast the no vote, with Democrats Art Murphy and Mike DuPont absent. At that point, it appeared the governing body had the simple majority that officials had said was necessary to introduce the bond.

But several minutes after the vote, after the council had moved on to other business, O’Hern leaned over and whispered to Menna, who announced that three votes were needed to introduce, and that he was casting the third vote in favor. He declared the measure introduced.

After the meeting, redbankgreen asked Menna and O’Hern why a third yes was necessary, and the legal basis for the mayor voting in the absence of a tie. O’Hern said he would do some legal research on the matter.

O’Hern said this week that in fact a simple majority of those voting was not sufficient: a majority of the councilmembers present was required for introduction of the ordinance. That meant three votes were needed.

And Menna was allowed to vote because, under both common law and case law, Lewis’s abstention can be regarded as a “no” vote, based on a comment she made before for the roll-call vote.

“There’s more discussion and information that’s needed,” Lewis said before she abstained.

O’Hern cited as legal precedent a 2013 ruling on a case in which Hoboken Mayor Dawn Zimmer sought to have abstentions by two council members counted as no votes, supporting her decision to cast a tiebreaker. Zimmer won that case, which involved filling a council vacancy.

Another case, involving then-Newark mayor and now U.S. Senator Cory Booker, found that while “there is very little clarity or consistency in the judicial treatment of abstentions,” in cases requiring a fixed number of “yes” votes for a majority, “abstentions should be regarded as negative votes.”

The upshot is that Lewis’s abstention was “tantamount to a ‘no’ vote,” O’Hern said, “because she had pretty much explained her desire not to introduce.”

Had Lewis said nothing, or spoken in favor, the vote would effectively have been 3-1, sufficient for the ordinance to be introduced without the need for a tiebreaker.

Interpreting common law and case law on the issue, “is really not an easy issue” and involves a fair amount of subjectivity, O’Hern said.

The timing of the matter was key, because the meeting was the last of the year at which an ordinance could be introduced in time for possible passage this year; otherwise, the process would have to have to start anew in 2015, when it would likely face more opposition. On January 3, a second Republican, Linda Schwabenbauer, is slated to join the council, following her defeat of Lewis in the November election. Both Schwabenbauer and Burnham have been critical of water rates and fees, as well as debt issues.

Administrator Stanley Sickels said the administration’s sense of urgency is owing to the finance committee’s desire to have the meter-replacement project financed, bid out and completed by the end of by the end of budget year 2015. It involves more than 3,800 residential meters.

A hearing on the ordinance is scheduled for December 17. Menna has directed Sickels to have supporting documentation from the finance committee discussions with prospective vendors posted on the website by noon on Friday.