County Clerk Says Election Petition Still Has Time

UDPATE: Tuesday 6:22 p.m. The Montclair Times reports that Jerry Fried has collected the extra signatures needed.

After consulting with legal council counsel this afternoon, Essex County Clerk Chris Durkin told Baristanet that, in fact, Mayor Fried and his group still have time to get the municipal election on the ballot, at least in theory. According to Durkin, all along, the petitioners’ opponents have been unintentionally operating under the belief that there was a 70 day turn around (which was recently changed to 67 days), as indicated by Statute 19A: 37-1, however, that’s not the right statute for this ballot question. “It’s actually the wrong one to govern this situation,” he said. “there was some misinformation throughout the process.”

Michael Byrne, a member of the committee appointed to study the proposed election change, said that as of last Friday, he believed that they were all in agreement about which statute to read: Title 40:69A-184 – 190

Durkin explained that the petitioners have used the guidelines of this non-partisan statute, which requires that a question be submitted for placement on the ballot 40 days prior to the election, as opposed to the 67 that Statute 19A calls for. The County Clerk said that Mayor Fried’s attorney, Bennet Zurofsky spelled it all out to him in a letter.

“The petition has been operating under this statute all along, but everyone was just missing it,” said Durkin.

He said that Title 40’s statute states that “the submission can be amended within 10 days of notification of a deficiency.”

Municipal Clerk Linda Wanat notified the parties on Friday, September 9, that there weren’t enough signatures to make the petition valid. The 10-day clock started then, however to meet the statutory deadline of September 28 (the date Durkin also mentioned on Friday), Wanat would need to certify the petition in time to advertise that an ordinance is up for discussion 7 days before the next council meeting, on September 20. That would mean she would probably have to get something in the paper by end of day today or tomorrow.

“As long as the municipal clerk meets the statutory deadline, I’ll place the question on the ballot,” the County Clerk told Baristanet. “Whether or not she can do that, remains to be seen.”

“There’s no way under the law for them to meet the deadline without seeking a court order,” Byrne told Baristanet. “I would hope that they won’t go that route.”

Even the County Clerk admits that this whole issue is very complex and confusing. Our guess is that it will continue to get more confusing before it is all resolved.

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22 COMMENTS

  1. The well-marbelized state laws, and arcane and debatable rules and regulations make these types of efforts marathon, survivals of the fittest. Everything we know, everything the experts tell us is right only for a day, or for hours, then it is wrong, replaced by a new truth. At the end of the day someone wins the argument, usually someone with more spirit.

    That said these are bean counting days and if lawyers must enter the fray and to the extent their fees diminish the expected and touted savings from moving the voting date thus yielding at best a pyrrhic victory, then egos should go in check and let the issue slide and be dealt with by the slow-moving panel.

  2. Well put, Townie.

    I see no one is even talking about the $6MM in tax refunds/credits that the Town Attorney reported that will hit the budget for 2012.

  3. Spelling counts, especially in a story like this.

    Shouldn’t the first line read ” After consulting with legal counSEL…”

    A council is a local legislative body. A counsel is a lawyer.

    Though, perhaps it is possible, this being New Jersey and all that the county clerk merely called Nick Lewis and the gang….

  4. Is the county clerk “deficient” too?

    First of all the phrase “the submission can be amended within 10 days of notification of a deficiency.” DOES NOT APPEAR ANYWHERE IN TITLE 40 (the pdf document linked to.) In fact the word “deficiency” does not appear. Or is this misreported? When you say, Erika, “He said that Title 40′s statute states that” and you put quotes around the text and and boldface it, you are suggesting it is the precise text.

    Can you or he please list a page? That text not in the document.

    Nearest I can tell the clerk means this:

    “40:69A-188. Amendment of initiative or referendum petition

    An initiative or referendum petition may be amended at any time within ten days after the
    notification of insufficiency has been served by the municipal clerk, by filing a
    supplementary petition upon additional papers signed and filed as provided in case of an
    original petition. The municipal clerk shall, within five days after such an amendment is
    filed, examine the amended petition and, if the petition be still insufficient, he shall file
    his certificate to that effect in his office and notify the Committee of the Petitioners of his
    findings and no further action shall be had on such insufficient petition. The finding of
    the insufficiency of a petition shall not prejudice the filing of a new petition for the same
    purpose. ”

    Page 58.

    Note it says nothing about the timeline associated with the “certification” of the petition.

    is this a misinformation campaign?

  5. Cary, I think the township should, as a rule, conduct revaluations very regularly, every 2 or 3 years. The entire process is screwy. A valuation is completed and once adopted has one function, to calculate each taxable property’s fraction of the total value it contributes to the township. Add them all up and you get “1”.

    But to be told that my property’s fraction is 0.00012463 is opaque, so we take a step back and tell everyone their assessed value. When the number moves, down not up, property owners acting with no perspective, only self-interest demand reductions. The loony County system must give them something if only to perpetuate itself. That all the other property’s have similarly lost value and that the fraction is still very close to 0.00012463 gets no consideration.

    The county is party to this foolishness and will not entertain a blanket reduction, or anything akin to a CPI adjustment, to keep the meaningless AV in line with the meaningful fraction. I say the only option is to revalue every two-three years.

  6. Townie,

    Again, you are right on the mark. In discussions I’ve had with the County tax person she indicated that some times have, in effect, a “rolling” revaluation. There is nothing preventing the town from pursuing a more logical approach.

  7. No where in the law does it indicate that amending the petition with additional signatures changes the timelines. All the time lines are tied to the “certification” of the petition by the township clerk. That even HAS NOT YET HAPPENED.

    “According to Durkin, all along, the petitioners’ opponents have been unintentionally operating under the belief that there was a 70 day turn around (which was recently changed to 67 days), as indicated by Statute 19A: 37-1, however, that’s not the right statute for this ballot question.”

    Nowhere, in any press or postings have I seen 19A cited. As Byrne correctly states the 70 days comes from the same law the Mayor and Zurofsky are citing.

    To wit:
    (page 59) (I’ve boldfaced the time periods indicated)

    40:69A-191. Submission of ordinance to voters; withdrawal of petition

    If within 20 days of the submission of a certified petition by the municipal clerk the
    council shall fail to pass an ordinance requested by an initiative petition in substantially
    the form requested or to repeal an ordinance as requested by a referendum petition, the
    municipal clerk shall submit the ordinance to the voters unless, within 10 days after final
    adverse action by the council or after the expiration of the time allowed for such action
    ,
    as the case may be, a paper signed by at least four of the five members of the Committee
    of the Petitioners shall be filed with the municipal clerk requesting that the petition be
    withdrawn. Upon the filing of such a request, the original petition shall cease to have any
    force or effect.

    40:69A-192. Timing of election at which submitted to voters

    a. Any ordinance to be voted on by the voters in accordance with section 17-36 or
    section 17-42 of this act (C.40:69A-185 or C.40:69A-191) shall be submitted at the next
    general or regular municipal election occurring not less than 40 days after the final date
    for withdrawal of the petition as provided for in section 17-42 of this act (C.40:69A-191), ”

    The meaning is plain and easy to figure out.

    40:69A-191: AFTER the petition is CERTIFIED the council has 20 days to pass it. If they do not, it will be placed on the ballot.

    When?
    40:69A-192:
    “40 days after the final date for withdrawal of the petition as provided for in section 17-42 of this act (C.40:69A-191)” What is the final date for withdrawal? “unless, within 10 days after final adverse action by the council or after the expiration of the time allowed for such action”

    So 20 days after the council does not pass, the election can be 40 days AFTER the 10 withdrawal period.

    20+40+10 = 70.

    Please ask the county clerk:

    1. How does he get anything other than 70 for the normal timeline (or 67 if the law has been amended, please provide text of amended law)

    2. Where is it indicated in the law that the petition amendment allowed for changes in any way the timeline.

    Certification of the petition has not yet happened. Once it does, 70 days later it can be place on the ballot. There is 56 days until Nov. 8.

  8. “The well-marbelized state laws, and arcane and debatable rules and regulations make these types of efforts marathon, survivals of the fittest. Everything we know, everything the experts tell us is right only for a day, or for hours, then it is wrong, replaced by a new truth. At the end of the day someone wins the argument, usually someone with more spirit.”

    I’m on the board of an organization, and we’re exploring the implications of having votes via electronic media. There’s a state statute which is relevant.

    I’ve been discussing this with our lawyer, and it’s been a fairly amusing if frustrating (for both of us) conversation. My engineering background (I expect) has me asking questions about edge conditions, consequences, and so on. Apparently, these were never considered when the law was drafted, and so there are a fair number of unclear aspects – aspects which would be ripe for litigation should conflict arise.

    We need more engineer-like thinking in our legislative arena.

    …Andrew

  9. “We need more engineer-like thinking in our legislative arena.”

    Unfortunately, people don’t act and react like electricity, gravity or magnetism. Otherwise you’d have a point.

  10. Cary – In addition to the $6M in tax appeal refunds, can you also remind the folks playing along at home just how much money is owed to pay for the new Bullock School in 2012?

    POSTED BY Cary Africk | SEPTEMBER 13, 2011 @ 6:09 AM
    Well put, Townie.

    I see no one is even talking about the $6MM in tax refunds/credits that the Town Attorney reported that will hit the budget for 2012.

  11. Oh Gator, why do we need to focus on all this money nonsense when there’s really important stuff to do, like making sure we get to vote THIS November on moving the elections to next November? So glad our Mayor and council have their priorities straight.

  12. Why did the municipal clerk originally submit the ordinance to the county clerk without waiting the full twenty days provided by law that Council is allowed to have to vote the ordinance up or down???

  13. @jhartnett, I wonder if Freid an co. used used his position as mayor to pressure the clerk, the same type of pressure that our former building inspector wouldn’t cave in to. Some of us miss you Joe.

  14. “Unfortunately, people don’t act and react like electricity, gravity or magnetism. Otherwise you’d have a point.”

    Fortunately, engineers aren’t required to build systems which act like these. That’s part of the fun, frankly, as we’re obviously building on tools that do act like these.

    But then, so are people built out of these basic building-blocks, and we’re already clear that people don’t act like these building blocks.

    As for my original statement: It’s not about the intended result. This can be whatever the legislators intend. But the rules should be clear and well defined and easily understood. Failure to achieve this is a failure of process.

    I sometimes wonder if legislators produce deliberately ambiguous rules. I suspect that this is one way an illusion of compromise is made: they leave it ambiguous and hope that a judge will rule in their favor.

    …Andrew

  15. “I sometimes wonder if legislators produce deliberately ambiguous rules”

    Sometimes yes sometimes no. Count me as in favor of the notion that we’re over regulated and laws and rules are often too complex. But in a compromise situation with both sides seeking advantage in the writing of the rules, this will never change. Well it won’t change without some form of authoritarianism, any way.

    But in the case of this law, under discussion here, it’s is clear and easily discerned.

    The claims of complexity or opaqueness are smoke screen.

  16. “I wonder if Freid an co. used used his position as mayor to pressure the clerk”

    I wonder at this as well. I also wonder if this played a role in the clerk’s error. I imagine it must be a bit tough to tell your boss “no” on an issue so near and dear to his heart. That’s the kind of pressure that we discuss in aviation as a risk factor.

    …Andrew

  17. How was the Building Inspector hired? Was it the Manager or the Town Council? How much influence do you think that the Town Council has over the Manager that they hired? Perhaps Freid is above using his position as Mayor to get what he wants. Perhaps, but I doubt it.

  18. The clerk is appointed by the council, the whole council.

    If you are worried about influence it seems she’d be more influenced by the MAJORITY of the council which is opposed to this ordinance than the mayor and his minority, doesn’t it?

Comments are closed.