Wednesday, February 21, 2018

"And this ordinance has been properly adopted."

Edited on February 22 to include the response from the Municipal Clerk (see end of post)

Or has it?

At the January 16, 2018 meeting of Trenton's city council Ordinance 17-80 was up for it's second reading and public hearing. There were only four members of council present when the ordinance came up and the vote was three to one in favor. (Audio here)
Trenton's Municipal Clerk, Dwayne Harris, can clearly be heard saying after the vote, "And this ordinance has been properly adopted."  (Audio here)

Except that is wasn't.

The exact same ordinance came up for reintroduction (first reading) on Thursday, February 15. How can this be?


From the moment that it first appeared on the council docket in early December of 2017, we argued against giving Mr. Torricelli more tax breaks for his project. Not surprisingly, the ordinance passed first reading at the December 7 meeting. The council members voting in favor of the introduction of Ordinance 17-80 were Mr. Bethea, Ms. Caldwell-Wilson, Mr. Chester, Mr. Harrison, and Ms. Reynolds-Jackson. Ms. Holly-Ward and Mr. Muschal were apparently absent as no vote was recorded from either of them.

The second reading was postponed from December 21 and rescheduled for January.

At the January 16 meeting, the ordinance was brought up for it's second reading. According to the audio (provided courtesy of Kevin Moriarty) of the meeting, there was no one present who wished to speak on the matter so the public hearing portion was closed. The ordinance was then brought forth for a vote. Council members Caldwell-Wilson, Chester and Holly-Ward voted in favor of granting the 10 year tax abatement. Councilman Muschal voted against. Council members Bethea, Harrison and Reynolds-Jackson were absent.  The Clerk declared the ordinance adopted.

A couple of weeks later, we started hearing murmurings that something was up and the ordinance hadn't passed. Then, sure enough, Kevin Moriarty spotted an item on the docket for February 15.

How could this be?

We submitted an Open Public Records request to the municipal clerk asking for the ordinance, its effective date, any communications regarding why it may not have gone into effect, minutes of the meeting where it was adopted, etc.

What we got back was a copy of the ordinance with a large stamp across the front page noting that it had failed to be adopted on January 16.

While we received a copy of the minutes of the December 7 meeting at which Ordinance 17-80 was introduced, were not provided with the minutes of the January 16 meeting because (per the Deputy Clerk's note) they "have not been prepared."

We asked for information on exactly why the ordinance failed on January 16. Trenton's Municipal Clerk, Dwayne Harris, sent along the following information regarding why the ordinance was NOT adopted on January 16:
"Ordinance 17-80 failed upon second reading because it failed to obtain the affirmative vote of a majority of all the members of the council, which would be four, as required by NJSA 40:69A-180." 

For those interested, here's the relevant part of the cited statute:

40:69A-180. Rules of procedure; quorum; ordinances and resolutions; presiding officer; compensation
(a) Council shall determine its own rules of procedure, not inconsistent with ordinance or statute. A majority of the whole number of members of the council shall constitute a quorum, but no ordinance shall be adopted by the council without the affirmative vote of a majority of all the members of the council. 

The key phrase being "but no ordinance shall be adopted by the council without the affirmative vote of a majority of all members of the council".

On January 16, only four members were present for the vote. Three of them voted in the affirmative, one against. Three is less than a majority of the total membership of the governing body. The ordinance was therefore not adopted.

Mr. Harris notified Council of his error on January 17th and made a public announcement during the February 15th council meeting.

It's probably all moot as the matter will likely succeed in its second go around. But Trenton again experiences a procedural fail.

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