Amazingly, this rather straightforward question is unsettled and bills seeking to clarify it have languished in the Legislature since 2011.
On October 3, 2017, Anthony Bellano of the Cinnaminson Patch published an article about how the five-member Cinnaminson Township Committee, during a public meeting, passed a motion, with only two expressed, affirmative votes, to refer one of the governing body’s members to the Burlington County Prosecutor and the New Jersey Department of Community Affairs for official misconduct investigations.
Voting in favor of the motion were Mayor Anthony Minniti and Deputy Mayor William “Ben” Young. Committeeman Donald Brauckmann, who was the subject of the investigation referral, did not vote or participate because of a clear conflict of interest. According to the article, Committeeman Howard “Bud” Evans “recused himself due to his friendship with Brauckmann” and Committeeman John McCarthy “abstained because he said he didn’t have enough time to thoroughly read the results of the investigation and make an informed vote.”
Some members of the public who observed the meeting expressed confusion as to how only two affirmative votes–cast by less than a majority of the members present–could carry the motion. According to the Patch article, Township Solicitor John Gillespie “refused to answer” residents’ questions regarding whether two votes were enough to carry the motion.
After searching on-line and speaking with Laura C. Tharney, Executive Director of New Jersey Law Revision Commission, I learned that the Commission had published a “Final Report relating to Effect of Abstentions” in April 2011. This report concluded that under current, sometimes conflicting state court decisions, the vote of a person who abstains from voting is counted as “yes” vote under the common law unless he or she has “expressed opposition, in which case” he or she is counted as voting “no.” But, the report notes that the Commission had “found no case describing what kind of expression of opposition would suffice to make the abstention a ‘no’ vote.”
The report also found that if a member is not entitled to vote, he is not counted as present to constitute a quorum and that “if a member recuses himself and takes no part in the proceedings even if he is physically present and would not necessarily be barred from voting, his presence does not count toward a quorum.” The report noted that “it may be particularly hard to determine whether a member fully recused himself or whether he merely abstained. In the first case, his vote would not count; in the second, he would be counted as affirmative.”
Under this murky guidance, Brauckmann would not have been counted toward the quorum because he was clearly conflicted. Whether Evans should have been counted toward the quorum depended on whether his decision to recuse himself, due to his friendship with Brauckmann, was a well reasoned decision. If he properly recused himself, he also would not have been counted as present for the purposes of a quorum. But, had he instead of recusing himself announced that “I am a good friend of Donald Brauckmann and really oppose this attempt by Minniti and Young to refer him to the prosecutor, but because of my friendship I am abstaining from this vote,” then it appears that he would have been counted toward the quorum and his vote would have been counted as a “no.”
According to the Patch article, McCarthy used the word “abstained” instead of “recused” so, if he truly abstained, he would have counted toward the quorum but whether his vote counted as a “yes” or “no” would turn on whether he expressed a sufficient level of opposition to the substance of the motion.
In sum, Minniti’s and Young’s “yes” votes would seem to have carried the motion only if: a) either Evans, McCarthy or both of them abstained (rather than recused themselves) and b) if one or none of the abstainers expressed no opposition to the substance of the motion. In such a case, the quorum of three members would have been satisfied and the number of “yes” votes would have exceeded the number of “no” votes. If, however, Evans and McCarthy both “recused” instead of “abstained,” then the vote would have been out of order for want of a quorum. And, if Evans and McCarthy both abstained and announced their opposition to the motion, the motion would have lost by a 2-2 vote.
At the end of its report, the Commission recommended legislation that would clarify matters. In the current Legislative Session that expires in January 2018, Assembly Bill No. 2896, introduced by Assemblyman Ronald S. Dancer, would establish the following rule:
[W]hen a member of a public body is attending a meeting, but abstains or fails to vote on a matter before the public body, the following provisions shall apply: the member shall not be counted as voting either for or against the matter; if the member is legally entitled to vote and has not recused him or herself from consideration of the matter, the member shall be deemed present for the purpose of determining whether there is a quorum of the public body to consider the matter; and if the member is not legally entitled to vote because of conflict of interest or otherwise, or has recused him or herself from consideration of the matter, the member shall not be counted as present for the purpose of determining whether there is a quorum of the public body to consider the matter.
If Dancer’s bill would have been law when Cinnaminson’s motion was voted upon, the passage of the motion would have still turned on Evans’ and McCarthy’s recused-vs-abstained status. But, at least the importance of the recused-vs-abstained distinction would have been better realized and their ultimate decisions to abstain or recuse would have been reached in a more methodical and less arbitrary manner.
Dancer’s present effort has been before the Legislature since December 2011. Dancer introduced an identical bill (A2437) in the 2014-2015 Legislative Session and, along with Senators Nicholas P. Scutari and Ronald Rice, introduced the same bills in the 2012-2013 session (A4436 and S767). Scutari introduced an identical bill (S3121) in the 2010-2011 session. The only time any version of the bill was heard was on March 4, 2013 when S767 was favorably reported out of the Senate’s Community and Urban Affairs Committee by a unanimous 5-0 vote.