Hoboken Corporation Counsel Brian Aloia has recommended a new vote on raising the local union donation limit from $500 to $7,200 to avoid any procedural legal challenges in the future.
By John Heinis/Hudson County View
The ordinance, B-420, was approved on first reading on December 1st and then on second reading on December 15th after a “trigger clause” was added.
Specifically, the ordinance would only take effect if sanctions aren’t issued against 1st Ward Councilman Mike DeFusco as part of an ongoing court matter to decide if he violated municipal code by accepting union donations above the $500 limit.
“The Amendment changed the ‘Purpose’ section of the ordinance by further explaining the reasoning behind the proposed change to Hoboken City Code Section 20D, and the effective date of the Ordinance. By way of the Amendment, it was clarified that the change proposed in the Ordinance would create a trigger event, namely, the resolution of a municipal court matter involving Hoboken City Code Section 20D,” Aloia wrote in his one-and-a-half page opinion obtained by HCV.
“Due to the timing and uniqueness of the proposed Amendment, there was insufficient time to opine with certainty on the legal implications of the Amendment including whether or not said Amendment constituted a substantial change which would require an additional reading prior to final passage.”
According to state statute, an ordinance cannot be amended between first and second reading if it “substantially alters the substance” of the legislation.
Since a substantial amendment is not defined, Aloia notes it can be argued the change was not a major one since the substance remains unchanged and only puts forth terms on how it would be applied.
However, he also points out that state statute also calls for notice and publication of an ordinance prior to a vote, which did not occur here.
“Therefore, if an amendment would increase objectors or persons who would come to a hearing to ask questions regarding an ordinance, the amendment should be considered substantial,” Aloia wrote.
“Additionally, even a change that ‘lessens’ the impact of the proposed ordinance could be considered substantial, as any change could lead to more questions or objections from different parties.”
He continues that if challenged, it is likely the amendment would be considered substantial by the court.
“Therefore, in my opinion, the safest course of action in order to avoid the possibility of an adverse ruling in the event a challenge to the ordinance was filed would be reintroduce and reconsider the Ordinance in January 2022 or shortly thereafter,” Aloia says in the opinion.
“Reintroducing the Ordinance would eliminate any argument that the provisions of N.J.S.A. 40:41A-101 that require a second reading if an amendments is made, was violated. I note that the Ordinance will be enforced and will be considered valid even if the Council does not reintroduce the Ordinance.”
Last month, the measure was approved on second reading by a close vote of 5-3(1), with 2nd Ward Councilwoman Tiffanie Fisher, 4th Ward Councilman Ruben Ramos, and 6th Ward Councilwoman Jen Giattino voting no, while DeFusco recused himself.
Then-Councilwoman-at-Large Vanessa Falco, who choose not to seek re-election in November to run the city’s new division of housing, initially voted no but changed her vote to yes without explanation.
If the council were to consider the measure again, Councilman-at-Large Joe Quintero, who ran on Mayor Ravi Bhalla’s ticket, would vote on the ordinance for the first time.
Fisher said this outcome was expected, but nevertheless still disappointing.
“Where to start … when I asked Aloia for his opinion on this the night of the vote and he punted for the first time ever, I expected an outcome like this,” she said.
“And it explains why Council President Russo and Councilman Cohen did everything they could to obfuscate and cut me off at last week’s meeting to keep me from discussing this again. Hoboken residents deserve so much better.”
A city spokeswoman did not return an email seeking comment this morning, though Councilman-at-Large Emily Jabbour, a co-sponsor of the measure, hit back at Fisher.
“Councilwoman Fisher can’t seem to make up her mind on how she wants this issue handled. When it was politically convenient for her to file this complaint against Councilman DeFusco, she wanted this adjudicated,” she said.
“Now, when it is no longer convenient, she points fingers at everyone but the person who violated the ordinance. What was passed by the City Council is the fairest approach to handling this matter. The DeFusco matter will continue to make its way through the courts and when a decision is made, the ordinance will take effect – not before.”
Unsurprisingly, that didn’t change Fisher’s point of view.
“Councilwoman Jabbour’s comments just further hit home my point that this was a self interest vote. She claims her reckless undoing of two decades of campaign finance reform by Hoboken residents and Mayor Zimmer is ‘the fairest’… for her maybe,” she said.
“But Hoboken residents know it’s not fair to them.”
Editor’s note: This story was updated with a comment from Councilman-at-Large Emily Jabbour and a response from 2nd Ward Councilwoman Tiffanie Fisher.