At the Berkeley Heights Township Council meeting on May 6, 2008, the Council voted on an ordinance establishing the appropriate authority over the Berkeley Heights Police Department. Berkeley Heights is a Faulkner Act municipality, which means, according to Section 10.9 of Municipal Corporations, that "a majority of the full governing body is required for adoption" for the enactment of ordinances (emphasis in the original).
Councilmen DiPasquale, Battaglia and Bruno voted in favor of the ordinance while Councilwoman Perna and Councilman Nelson voted against the ordinance. However, there are six members of the Council, which means four votes are required for passage of an ordinance. Councilman Bonacci abstained, creating a vote of 3-2 with 1 abstention. Mayor Cohen consulted the Township Attorney, Thomas Scrivo, who advised that Councilman Bonacci's vote to abstain could be legally changed by Mayor Cohen to a "no" vote. Over Councilman Bonacci's objection, Mayor Cohen changed Bonacci's vote to a "no", resulting in a 3-3 tie. In Berkeley Heights, the Mayor can vote in the case of a tie. Mayor Cohen broke the tie by voting in favor of the ordinance. Thus, the ordinance passed by a vote of 4-3.
On May 12, 2008, Councilman Gerald Nelson emailed Mr. Scrivo and others requesting that Mr. Scrivo provide him with "any and all materials (Robert's Rules of Order, State Statute, etc.) that you referenced when you provided Mayor David Cohen with the opinion that he could legally change Councilman John Bonacci's abstention to a 'no' vote on Tuesday, May 6th, during a vote on the Police Ordinance." Mr. Scrivo forwarded the email to the Mayor and Council and others stating, "Below is an email I received from Councilman Nelson. I await the Mayor and Council's direction." As of the date of this publication, The Alternative Press has been informed that no documentation has been provided by Mr. Scrivo to Councilman Nelson.
The Alternative Press sent an inquiry to Mr. Scrivo asking for him to provide us with documentation to support his opinion that Mayor Cohen could change the Councilman's vote. Mr. Scrivo replied, "Thank you for your inquiry. As a policy, I do not respond to questions from the Press without prior approval of the Mayor and Council." As a result, The Alternative Press sent a press inquiry to Mayor Cohen, all members of the Township Council, as well as Mr. Scrivo, asking for any thoughts any of them might have regarding the issues arising from the "appropriate authority" vote and also requesting that the Mayor and Council provide permission for Mr. Scrivo to answer our inquiry. Only one person responded to our inquiry, Councilman Bonacci.
Because we only received comments from Mr. Bonacci, we consulted the former Township Attorney for Berkeley Heights, the Berkeley Heights Township Clerk, former Councilman Tom Pirone, as well as several publications that may shed light on the issues involved. As is our practice, we make no judgments regarding these issues and present the information to you for your review, unfiltered and unedited.
Edward Kologi, former Berkeley Heights Township Attorney, told The Alternative Press that while it appears to be common sense that an abstention would count as a nullity or null-vote, under New Jersey law, an abstention is to be construed as an affirmative or negative vote, depending on the circumstances. Mr. Kologi, who has practiced law for 25 years and has served as a municipal attorney for over 20 years, acknowledged, "the law does not always follow common sense." The Alternative Press was provided with a publication that appears to differ with Mr. Kologi's view. According to "Surviving the Public Meeting" by John M. Carbone and Kimberly A. Baldwin, an article that appeared in the New Jersey Lawyer in December 2006, "In Faulkner Act municipalities an ordinance requires the affirmative votes of the majority of the entire body for adoption at each stage of the proceedings...the abstention will not count as a vote when a statute requires a specific number of votes for passage." Councilman Bonacci wrote in his statement to The Alternative Press, "Also relevant is the fact that Mr. Kologi, the Township Attorney in late 2006 and early 2007, provided the Mayor and Council with the [New Jersey Lawyer article] to show us the meaning of 5-methods of casting a vote: yes-no-abstain-present and silent. I (Councilman Bonacci) and others relied on that and almost all have abstained at one time or another since then and the precedent has been well established and used specifically since March 12, 2007 voting on an ordinance that failed that day."
Mr. Kologi stated that there have definitely been occasions where abstentions were construed as "yes" or "no" votes when he served as the Township Attorney for Berkeley Heights. According to the Berkeley Heights Township Clerk, Patty Rapach, she has never seen an occasion when a Councilman's vote to abstain was changed to a "no" or a "yes" vote, including the time she spent as Clerk of Woodbridge Township. Former Councilman Tom Pirone disagreed, writing to The Alternative Press that, "In my campaign I had approved of written statements that reflected upon several votes by Councilman John Bonacci, how my votes differed and how my yes votes had a beneficial impact to the town. He rebutted them and accused me of being untruthful asking me to check the written records in the vault at town hall. In making the statements about his votes I relied on the audio recordings of Council meetings. When I compared the audio recordings to the votes as written by the clerk and stored in the vault there were discrepancies. After the election, the Clerk wrote a letter stating that they were honest mistakes and she had now updated six of John's votes in the vault to match the audio recording which should be on record at town hall. Those votes were mostly abstentions that the Clerk had written as yes, and to which John wanted to claim being in favor of during the campaign. Those 2007 votes are now exactly what John had verbally stated into the microphone either 'abstain' or 'no'. This was announced at a town hall meeting. To my knowledge that changing of votes was never publicized on TV, in print, or on the internet." Ms. Rapach disagreed with Mr. Pirone's characterization, writing to The Alternative Press, "I am unable to put my hands on a memo. I did explain to the Council that due to much confusion and arguing at the meeting of March 12, 2007 it was written down that Mr. Bonacci voted yes for consent agenda items #7d – Resolution authorizing the Twp. Engineer to endorse a Treatment Works Approval Application, #7e – Resolution releasing Cash Bond & #7f – Resolution approving Raffles. I do not transcribe the minutes of the meetings and during the transcription by the Deputy Clerk of the minutes, it was never picked up as an 'abstention' vote. The minutes were pulled on January 22, 2008 corrected and adopted on February 19, 2008."
Mr. Kologi said that it appears that Mr. Scrivo, the current Township Attorney for Berkeley Heights, correctly followed judicial precedent, when he construed Councilman Bonacci's abstention as a "no" vote. "Township attorneys do not make the law, they only follow it to the fullest extent possible," Kologi said. In his statement to The Alternative Press, Councilman Bonacci took issue with Mr. Scrivo's opinion and also alleged that because the ordinance in question vested power in certain officials regarding the police, Robert's Rules of Order were violated, writing, "Neither the Mayor nor Mr. Scrivo addressed the violation of Robert’s Rules of Order (official in our adopted Council Manual of Rules and Procedures). It states that the Mayor and President of the Council cannot vote on an ordinance or resolution in which they are named as parties and will gain some benefit. The benefit can be either by money or by a right to vote or by an appointment, etc. Since there would have been 5 eligible votes available without them, they should have 'abstained'." Councilman Bonacci also wrote, "Mr. Scrivo also cannot escape scrutiny here and the Mayor can’t either under attorney-client privilege since the issue is an open matter before the public and has been used and referred to. Also Mr. Scrivo’s office charged the Township in the September 12 or 13th period or thereabouts with hours spent at the $140 per hour rate to answer an inquiry about 'abstain'. The result of the work product has not been disclosed. Was that work used now and charged to the taxpayers again?"
As to Mayor Cohen's vote to break the tie that ensued when Mr. Scrivo ruled Bonacci's abstention counted as a "no" vote, Mr. Kologi said that under the form of government operating in Berkeley Heights, the Mayor has the power to break a tie and, therefore, Mayor Cohen's vote appears to have been deemed appropriate.
Regarding the issue of abstaining on votes of the Council, Mr. Kologi told The Alternative Press that members of the governing body should ideally only abstain if there is a conflict, an apparent conflict or there is a unique set of circumstances. He said that while a member who abstains is not legally required to provide a reason for doing so, it is the preferred practice that an abstaining member explain why that member abstained. He concluded, "A member can abstain without explaining why but that does not enlighten the voters regarding why the member did what he or she did."
Read Councilman Bonacci's statement in its entirety.
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Editor's Note: Mayor Cohen and all members of the Council, as well as Mr. Scrivo, Ms. Rapach, and Mr. Kologi were invited to provide responses for this story. All of these individuals were given the option of either responding to The Alternative Press by submitting a Word document or PDF or typing their response in the text of an e-mail. They were told that for technological reasons, if they submitted a Word document or PDF, it would be able to be linked in the story while the text of an e-mail could not be.
