Monday, February 4, 2013

Court approves Jim Doyle appointment; decries "gamesmanship" by Mason-Russo

City of Hoboken announces:

COURT APPROVES APPOINTMENT OF JIM DOYLE TO FILL HOBOKEN CITY COUNCIL VACANCY

Last Friday, Hudson County Assignment Judge Peter Bariso ruled that the vote held on January 16th appointing Jim Doyle to the Hoboken City Council was valid, despite the abstentions cast by Councilwoman Beth Mason and Councilman Michael Russo. 

Judge Bariso summed up his ruling as follows: 

“This court cannot countenance the notion that the Municipal Vacancy Law was intended to encourage gamesmanship. Council members should not be permitted to undermine the deliberative process and trump the intent of the legislature.” 

Mayor Dawn Zimmer welcomed Judge Bariso’s decision, saying: “It is unfortunate that the City of Hoboken has incurred tens of thousands of dollars in legal fees to fill a routine City Council vacancy. I welcome Mr. Doyle to the City Council and trust the members of the City Council will do the same.”  

“We have real work to do in our City,” added Mayor Zimmer. “Once Jim Doyle is sworn in, we will have our full complement of 9 council people, and the 4-4 Council deadlock will be broken. It is time for the end of the gamesmanship and for the full Council to work with my administration to rebuild our City in the aftermath of Hurricane Sandy.”

The City Council voted on the issue of appointing Mr. Doyle twice in October, immediately after the vacancy occurred as a result of the resignation of Councilwoman Carol Marsh.  

Each time, the appointment received four affirmative votes plus the vote of Mayor Zimmer who is permitted by State law to cast the deciding vote in case of a tie. 

At the first vote, Councilwoman Mason was absent and Councilman Russo abstained. At the second vote the roles were reversed, with Councilman Russo absent and Councilwoman Mason abstaining. Each time Councilmembers Castellano and Occhipinti voted no. 

As a result of a lawsuit brought by Ms. Mason, Mr. Russo, Ms. Castellano and Mr. Occhipinti attempting to block Mr. Doyle’s appointment, three separate Court hearings were held. These members of the Council minority argued they had the right to block the appointment, and had in fact done so, by using absences and abstentions instead of “no” votes, thus averting a tie vote. Unless all four of the Council minority attended the meeting and actually voted “no”, they asserted there could not be a tie, and the Mayor could not cast the deciding vote, as permitted by New Jersey’s Municipal Vacancy Law. 

At the first hearing, Judge Bariso ruled that the failure of first Mrs. Mason and then Mr. Russo to attend the October meetings had successfully prevented a tie vote and that the failure of these Councilmembers to attend the meetings and vote had indeed caused Mr. Doyle’s initial appointment to be invalid. 

At the second hearing, Judge Bariso ruled that the Council minority could not permanently block an appointment by failing to attend council meetings and ordered the full Council, including all four members of the Council minority, to attend another meeting and vote on the appointment. That meeting was finally held on January 16, after an appeal brought by the four Councilmembers was denied. 

On January 16, for the third time, four affirmative votes plus Mayor Zimmer’s vote were cast in favor of appointing Mr. Doyle. Having been compelled by Judge Bariso’s Order to attend and vote, Ms. Mason and Mr. Russo abstained, and Ms. Castellano and Mr. Occhipinti once again voted no. 

At last Friday’s third and final hearing, Judge Bariso ruled Ms. Mason and Mr. Russo’s abstentions were effectively “no” votes, creating a 4-4 tie, and permitting the Mayor to cast the deciding vote, as she had attempted to do back in October when the issue was first considered.  

Thus, Judge Bariso ruled Mr. Doyle had been legally appointed at the first and only meeting attended by all Councilmembers where Mr. Doyle’s appointment was considered. 

Talking Ed Note:  This is an important legal opinion issued by Judge Bariso.  Take careful note of the conclusion as stated above.