By PETE WALTON
The four members of the Bradley Beach Borough Council have asked a state Superior Court judge to dismiss a lawsuit filed against them by Mayor Larry Fox.
Borough Attorney Greg Cannon filed the motion on behalf of council members Meredith DeMarco, Jane DeNoble, Al Gubitosi and John Weber.
In his lawsuit Fox said the council is trying to usurp powers which he says are granted to him by state law. The mayor wants the court to invalidate the appointments of four professionals made by the council last month.
The council took the action after rejecting candidates proposed by Fox, who did not present other options which the council might find acceptable.
“If the mayor’s position is upheld, then he is being granted the power to unilaterally award professional service contracts (without a resolution [and] for more than 12 months) in clear violation of the Local Public Contracts Law — a result that cannot withstand even mild scrutiny,” Cannon wrote in the council’s response.
“The vast majority of the allegations contained in the [mayor’s] complaint are wholly irrelevant to the actual controversy presented to the court for determination,” according to the response by the council.
State Superior Court Judge Richard W. English signed an order suspending the council’s appointments, at least for the moment, as he set July 11 as the date for oral arguments in the case via video conference.
The suit by Fox was filed by attorney Victoria A. Flynn of Holmdel Township, a freshman member of the state Assembly. In the complaint, Fox said that “actions taken by a majority of council members” were “arbitrary, capricious [and] unreasonable,” encroaching “upon the statutory rights and duties afforded to the office of the mayor, by acting outside the scope of the legal authority afforded to those council members.”
“The mayor, therefore, requires declaratory and injunctive relief to prevent the council from taking any further action to infringe upon the statutory duties of the office of the mayor,” Flynn wrote in the complaint.
Cannon, on behalf of the council members, said that “there is no legal basis to invalidate or abrogate” the ordinances which Fox opposed. The borough attorney said state law “clearly authorizes the Borough Council to adopt legislation governing specific appointments of ‘such other officers as may be provided by ordinance.'”
“For this reason alone, the court’s preliminary injunction should be lifted, and the [mayor’s] complaint should be dismissed with prejudice as a matter of law,” Cannon wrote.
The response also says that the statute of limitations to challenge one of the contested ordinances has expired.
“The 45-day time period within which any interested party was required to file suit to challenge Ordinance No. 2022-07 expired in the late summer of 2022,” the response says. Claims about that ordinance “should be dismissed with prejudice due to the expiration of the statute of limitations,” Cannon wrote.
In their response to the suit, the council members reject Fox’s claim that they violated the state’s Open Public Meetings Act. According to Cannon, the members “expressly deny that they held or conducted any meetings, or engaged in any communications that violate the Open Public Meetings Act.”
“The announcement, debate, consideration, publication, and votes on all disputed ordinances and … resolutions were conducted at regularly scheduled Borough Council meetings, which meetings also included the mayor,” the response to the suit says. “The speculative allegation that ‘if’ the Borough Council met, it ‘may have violated the OPMA’ is insufficient as a matter of law to sustain any claim for violation of the Open Public Meetings Act.”