A5166

An Act concerning dual office holding and amending N.J.S.40A:9-4.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. N.J.S.40A:9-4 is amended to read as follows:

40A:9-4. (1) It shall be unlawful for a person to hold simultaneously an elective county office and an elective municipal office.

(2) It shall be lawful for a member of the Legislature of the State to hold simultaneously any appointive office or position in county or municipal government.

(3) Nothing contained in this section shall be deemed to prevent the incumbent of any office from abstaining from voting in any matter in which the incumbent believes he or she has a conflict of duty or of interest, nor to prevent a challenge of a right to vote on that account under the principles of the common law or any statute.

(4) a. (Deleted by amendment, P.L.2007, c.161).

b. (Deleted by amendment, P.L.2007, c.161).

c. For the purposes of this section the term "elective office" shall mean an office to which an incumbent is elected by the vote of the general electorate.

(5) Notwithstanding the provision of paragraph (1) of this section, a person who, on the effective date of P.L.2007, c.161, holds simultaneously an elective county office and an elective municipal office may continue to hold the elective offices simultaneously if service in those elective offices is continuous following the effective date of P.L.2007, c.161.

(6) It shall be lawful for a member of a volunteer fire company, ambulance, first aid, hazardous materials, or rescue squad, including an officer of the company or squad, to serve as an elected official on the governing body of the municipal government wherein the emergency services are provided; however, the volunteer shall recuse himself from any vote concerning the emergency services provider of which he is a member.

(7) a. It shall be unlawful for a person to hold simultaneously an elective municipal office and a paid appointive municipal office or position in the same municipality.

b. A person who, on the date of enactment of P.L. , c. (pending before the Legislature as this bill), holds simultaneously an elective municipal office and a paid appointive municipal office or position in the same municipality may, within 20 calendar days following the date of enactment, select which office or position the person wishes to retain by submitting a written notice of resignation to the municipal clerk.

c. A person who does not submit a written notice of resignation pursuant to paragraph b. of this subsection within the time specified therein shall, on the 20th calendar day following the date of enactment of P.L. , c. (pending before the Legislature as this bill), be deemed to have vacated or resigned from the office or position the person accepted first.

(cf: P.L.2009, c.206, s.1)

2. This act shall take effect immediately.

STATEMENT

This bill would prohibit a person from simultaneously serving in an elected and paid appointed office or position in municipal government within the same municipality. Any person holding dual municipal elective and paid appointive office at the time this bill is signed into law would have 20 days to choose which office or position to retain. Failure to make a selection would result in the person forfeiting the first held office or position.

No New Jersey statute clearly prohibits a person from holding an elected office and a paid appointed office at the same time in the same municipality under all circumstances. Absent an applicable dual office holding statute, New Jersey Courts apply the common law doctrine of incompatibility of offices. This doctrine prohibits a person from holding two public offices if the inherent duties and obligations of the offices conflict with one another. Under the doctrine, courts have determined offices to be incompatible if one office is subordinate to or subject to the control or supervision of the other. Courts have also held offices to be incompatible under the common law by finding it physically impossible for one person to execute both offices with care and ability.

Despite existence of the common law doctrine, recent news reports and court decisions indicate that people continue to assume questionable dual offices. By establishing an outright prohibition against dual municipal office holding, this bill will protect local officials from entering into inappropriate offices and employment.