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A group of political activists seeking to place several ordinances on the ballot for voter approval will push forward despite a ruling last week by the city clerk that they did not properly follow statutory requirements.

The proposed ordinances call for the creation of a civilian police review board, increased minimum wage for seasonal and part-time city employees, expansion of club liquor licenses and their hours, and a residency requirement for city employees.

The group also submitted a referendum in opposition of the recently adopted Deputy City Manager wage decrease.

The group will now have 10 days to correct the deficiencies in the proposed petitions they filed, according to City Clerk Cindy Dye.

“The whole game plan is to work with the municipality to make Asbury Park a better place for the entire community,” said James Famularo, one of the five petitioners who filed the documents to get the measures on the ballot. “This is the type of public policy we need to make Asbury Park a great place to live.”

All five petitioners are members of the local National Action Network, who are seeking to restore the city’s middle class, Famularo said.

“The middle class has been substituted with financial barriers and obstacles which have created economical disadvantages for most residents,” Famularo said.  “In fact, thirty four percent of Asbury Park’s residents live in poverty. In order to make Asbury Park ‘great again’, city officials need to rescue quality of life issues, confront violent crime, improve the school district, provide decent housing, and reduce property taxes.”

The other members of the group seeking to put the ordinances on the ballot are Derrick Grant, Darryl Hammary, Mabin Womble, and Felicia Simmons.

The ability of residents to place ordinances directly on the ballot by submitting a petition with enough valid voter signatures was part of the change of government referendum approved by Asbury voters in November, 2013.

The law requires 10% of Asbury Park’s residents who voted in the last General Assembly election, an estimated 1562 voters, endorse a petition. Famularo said they provided the city clerk with roughly 200 signatures.

Dye notified the petitioners of the deficiencies in the proposed petitions in a letter dated February 1.

“On January 12, 2016, I received initiative petitions to place five questions on the November 8, 2016 general/municipal election ballot,” Dye wrote in a letter to the petitioners.

“The petitioners have 10 days to cure any deficiencies in the initial petitions,” she said.

Famularo said Monday night that he agrees with the clerk’s finding with regard to the club liquor license expansion, and the group will recraft that proposed ordinance and resubmit a proposed petition at a later date.

As for the other proposals, Famularo said the committee will review their options to amend the petitions to comply with Dye’s objections or to challenge the clerk’s ruling in court.

Below are excerpts from the Feb. 1 letter with regard to the Clerk’s denial of the proposed ordinances:

• Referendum Petition – Protest Rejecting Ordinance Amending Salaries of Certain Employees (Deputy Municipal Manager) Passed by the Mayor & City Council on December 23, 2015.

The ordinance that this petition references is Ordinance 2015-53 (attached).  This ordinance simply lowered the minimum salary as contained within the salary range for the Deputy Municipal Manager’s position.  This ordinance did not raise or establish the final salary of the position.  By law, an adopted salary ordinance can only be the subject of a referendum under the exclusive provisions contained within N.J.S.A. 40A:9-165, and not the referendum provisions contained within the Faulkner Act.  See, Donato vs. Gibson, 178 N.J.Super. 163 (App. Div. 1980); Lawrence vs. Butcher, 130 N.J.Super. 209 (App. Div. 1974).  While the cited statue has a lower signature requirement, it only permits a referendum when there has been an actual increase in salary.  Since that has not occurred here, a referendum as proposed on the referenced ordinance is not legally permissible.

• Initiative Petition – Proposing An Ordinance of the Mayor and Council of the City of Asbury Park Amending Chapter II of the Municipal Code to Establish a Citizen Police Review Board of the Revised General Ordinances of the City of Asbury Park, New Jersey.

The ordinance that this petition references cannot be created by an initiative petition under the long-standing holding in the case of City of Newark vs. Benjamin, 144 N.J.Super. 58, 66-67 (1976), aff’d 141 N.J.Super. 389 (App. Div.), aff’d 75 N.J. 311 (1978).  As such, it is not legally permissible to propose an ordinance by initiative concerning this topic.

• Initiative Petition – Proposing An Ordinance Amending and Supplement Chapter VI, “Alcoholic Beverage Control,” with Adding Section 3.5, Entitled “Club Licenses Cap” and Section 4.7, Entitled “Hours of Sale in Club Licenses” of the “Revised General Ordinances of the City of Asbury Park, New Jersey.”

The ordinance that this petition references concerns two (2) issues: first, that there be no cap on club licenses, and second, that there be no limitation on the hours of operations for club license holders.

As to the first issue, there is no current cap on liquor licenses.  Ordinance 2015-44 removed the cap on the number of licenses listed in the City Code.  Therefore, there is no need for an initiated ordinance concerning this provision.

As to the second issue (regarding the hours of operations for club licenses), the proposed ordinance is directly contrary to the requirement contained within N.J.A.C. 13:2-8.10.  That regulation states as follows: “No club licensee shall sell, serve or deliver, or allow, permit or suffer the sale, service, delivery or consumption of any alcoholic beverage on the licensed premises during hours or on days when plenary or seasonal retail consumption licensees in the same municipality are prohibited from such activity by municipal regulation or referendum.”  The proposed ordinance would leave it to the discretion of the club owner to determine the service hours.  However, as stated above, that provision is expressly contrary to the aforesaid state regulation.  Additionally, the state regulations also require the club organization and its existing location to exist for three (3) years, except where the entity is a chartered entity of a national or state organization.

Neither the Clerk nor a court can substantively revise a petition.  In the Matter of Initiative Petition (Jackson Township), 437 N.J. Super. 203 (App. Div. 2014), certif. den. 221 N.J. 218 (2015).

Given the above, it is not legally appropriate or permissible to propose an ordinance by initiative concerning these two topics.

• Initiative Petition – Proposing An Ordinance of the City Council of the City of Asbury Park Amending Chapter II of the Asbury Park Municipal Code Establishing a Living-Minimum Wage for Seasonal, Temporary or Part-time Employees.

The ordinance that this petition references would set a “Living-Minimum Wage” for seasonal, temporary or part-time employees.  This would affect the budgetary and finance policies established by the municipality through powers conferred on the present and future governing bodies, as well as those negotiated in collective bargaining agreements.  This is inappropriate.  See, for example, City of Ocean City vs. Somerville, 403 N.J.Super. 345 (App. Div. 2008).  Therefore, this petition must be rejected.

• Initiative Petition – Proposing An Ordinance Amending and Supplementing Chapter XXVI, Personnel Policies, Section 26-2, Entitled Police Department Promotions and Appointments of Chapter II and Repealing Subsection 2-9.6(b) Entitled Fire Department Promotions and Appointments of Chapter II of the Revised General Ordinances of the City of Asbury Park, New Jersey.

The ordinance that this petition references would mandate a residency requirement for all officers and employees of the City of Asbury Park, including employees in the Police and Fire Departments.  State law does not allow an absolute residency requirement as a condition for initial appointment, continued employment, promotion, or for any other purpose, relating to any member of a police department or paid fire department. See, N.J.S.A. 40A:14-122.1 and 40A:14-9.1.  The current wording of the proposed ordinance (at Section 26-2.11a(2) thereof) requires that “all applicants who apply for appointment to the City Fire and Police Departments must be residents of the City of Asbury Park for four (4) years prior to making application for either department.”  This language directly conflicts with the statutes cited above.  As such, it is not legally appropriate or permissible to propose an ordinance which includes said language.

As indicated earlier, neither the Clerk nor a court can substantively revise a petition.  In the Matter of Initiative Petition (Jackson Township), 437 N.J. Super. 203 (App. Div. 2014), certif. den. 221 N.J. 218 (2015).

As such, this petition must be rejected.

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