When a New Jersey city council, board, or state commission has empty seats, do you count those vacant seats when figuring out whether you have a quorum to hold a meeting?
Plain-English summary
The Governor's chief counsel asked the Attorney General a deceptively complex question: when a New Jersey public body has empty seats, because somebody died, resigned, or their term expired, do you count those empty seats when figuring out how many people you need to hold a meeting?
Attorney General Del Tufo's answer turns entirely on how the body's enabling statute is worded. He laid out a clear three-bucket framework:
Bucket 1: fixed-number quorum statutes (vacancies do NOT reduce the quorum). If the statute names a specific number ("five directors" of a nine-member board, "three members" of a five-member board), the quorum is that number: period. Vacancies don't change it.
Bucket 2: "all the members" or "the authorized members" statutes (vacancies do NOT reduce the quorum). If the statute says quorum is "a majority of all the members" or "the majority of the full authorized membership," the calculation is based on full statutory size. Vacancies do not lower the quorum threshold. The leading case is Ross v. Miller, 115 N.J.L. 61 (1935), which held that "a majority of all the members" of a 7-member council is 4, even when only 5 members are sitting.
Bucket 3: "a majority of the members" or silent statutes (vacancies DO reduce the quorum). If the statute just says "a majority of the members" or "a majority of the voting members", without "all" or "authorized", or if the statute is completely silent on quorum, then the common-law rule kicks in: a quorum is a majority of the current sitting members after subtracting vacancies. So a 10-person body with 1 resignation would need a majority of 9, that is, 5, to meet.
The opinion also flagged a safety valve for extreme situations. If vacancies become so numerous that a "current-members" quorum would be unrepresentative, courts may invoke the "rule of necessity", but that's a narrow ethical doctrine for emergencies, not a general workaround. It also noted that many enabling acts include holdover-in-office clauses (a member whose term expires keeps serving until replaced) which prevent vacancy-based quorum problems in practice.
What this means for you
If you're a municipal clerk or city attorney scheduling council meetings
Look at the enabling statute language first. Don't compute the quorum from memory.
- Standard NJ municipal council under N.J.S.A. 40:81-20: quorum is "a majority of all the members." Vacancies don't reduce it. A 7-member council always needs 4 to meet, even after a resignation.
- Optional Municipal Charter Law council under N.J.S.A. 40:69A-180(a): quorum is "a majority of the whole number of members." Same: fixed, vacancies don't reduce.
- Planning boards and zoning boards under N.J.S.A. 40:55D-6: quorum is "the majority of the full authorized membership of a municipal agency." Fixed, vacancies don't reduce.
If your clerk has been allowing meetings with fewer attendees because of vacancies, you have a legal exposure on every action taken at those meetings. Audit recent decisions and consider re-noticing/re-voting if the count was off.
If you're a member of a state board or commission
Read your enabling statute. Most state-board enabling acts (e.g., N.J.S.A. 11A:2-3 Merit System Board, N.J.S.A. 52:18A-78.4d NJ Building Authority) use fixed-number language and put the quorum count out of reach of vacancies.
But some boards, including the NJ Development Authority for Small Businesses, Minorities & Women's Enterprise (N.J.S.A. 34:1B-49c) and professional licensing boards (N.J.S.A. 45:1-2.2d): say "a majority of the members" or "a majority of the voting members." For those boards, vacancies do reduce the quorum.
A complication for professional boards: under Formal Opinion No. 6 (1978), N.J.S.A. 45:1-2.2d distinguishes between (a) the quorum (a majority of the voting members, which counts only sitting members) and (b) the threshold for taking formal action (a majority of the entire board or commission, which counts authorized seats). So you can have a quorum to meet but not enough votes present to act formally. Plan accordingly.
If you're an executive branch official appointing members
This opinion is a quiet pressure point. The longer you delay filling vacancies, the harder it becomes to hold meetings on bodies in Bucket 1 or Bucket 2, vacancies don't reduce the quorum, so missing seats can paralyze the body. Boards in Bucket 3 are more forgiving; you can keep meeting at smaller sizes.
If a body is at risk of being unable to meet, holdover-in-office provisions and the "rule of necessity" (an ethical doctrine for emergencies) are emergency outlets, but they're narrow and not designed for routine use. Filling the vacancy promptly is always the cleanest fix.
If you're a member of a body whose meeting you think didn't have a valid quorum
Document it. Action taken without a quorum is generally void or voidable. Prezlak v. Padrone held that a 10-member city council needed 6 (majority of 10) for a quorum, even with one open seat, and challenged actions taken with only 5 present.
If you think a vote happened without a quorum, consult the body's enabling statute, count carefully (including holdover members), and raise the issue formally before any action becomes final.
If you're litigating a challenge to a board action
The framework here is your roadmap:
- Identify the body's enabling statute.
- Look at the exact quorum language. Does it say "all the members" / "authorized" / a specific number? Or "the members" / "the voting members" / nothing?
- Bucket 1/2 cases give you a fixed quorum based on full authorized membership; missing it = void action.
- Bucket 3 cases give you a moving quorum based on current sitting membership.
Ross v. Miller (115 N.J.L. 61), Prezlak v. Padrone (67 N.J. Super. 95), and Aurentz v. Planning Board (171 N.J. Super. 135) are your in-state precedents.
Note also: the constitutional "majority of all its members" requirement for the New Jersey Legislature (Art. IV, § IV, ¶ 2) is in Bucket 2, fixed quorum based on full membership, vacancies don't reduce it. Formal Opinion No. 3 (1961) said the same.
Common questions
Q: My township council has 7 seats but one member resigned. How many members do we need for a quorum?
A: Under N.J.S.A. 40:81-20, the standard NJ municipal council quorum is "a majority of all the members": that's a Bucket 2 statute. The quorum is 4 (a majority of 7), regardless of the resignation. The resignation does not lower it to 3.
Q: Our state board has 9 authorized seats but 2 are vacant. The statute says quorum is "five directors." Do we need 5 or just a majority of the 7 sitting members?
A: 5. That's a Bucket 1 (specific-number) statute. The vacancies don't change the fixed quorum count.
Q: The enabling act for my commission says "a majority of the voting members shall constitute a quorum." We have 11 authorized seats, 2 are vacant. Quorum is...?
A: 5, a majority of the 9 currently sitting voting members. That's a Bucket 3 (no "all," no "authorized," no specific number) statute. But check whether your statute also has a separate threshold for formal action: N.J.S.A. 45:1-2.2d (professional boards) does, requiring "a majority of the members of the entire board" for formal action. You'd have a quorum to meet but might lack the votes to act.
Q: What if the enabling statute is completely silent on quorum?
A: The common-law rule applies: a quorum is a majority of the current sitting members. Ross v. Miller and the AG opinion both confirm this. So a 7-person body with 2 vacancies has a quorum of 3 (majority of 5).
Q: A member's term expired but a successor hasn't been appointed. Does that count as a vacancy?
A: Usually no, because most New Jersey enabling acts contain a holdover provision: the member continues to serve until a successor is appointed and qualifies. Read the specific enabling act to confirm. If a holdover provision exists, the member is still a sitting member and counts toward quorum and votes.
Q: We have so many vacancies that even with everyone present we can't meet quorum. What now?
A: Three possible answers. (1) Get the appointing authority to fill seats, this is the clean answer. (2) Look for holdover-in-office provisions; outgoing members may technically still be sitting. (3) In a true emergency, the "rule of necessity" can let a public body act with less than a quorum if the action cannot be postponed and there's no alternative: but it's an extraordinary doctrine. The AG opinion explicitly invokes Ross's caution that allowing a single surviving member to act would "do violence to the legislative purpose."
Q: Does this affect the New Jersey Legislature?
A: Yes. The State Constitution (Art. IV, § IV, ¶ 2) says "a majority of all its members shall constitute a quorum to do business." That's Bucket 2. The Legislature's quorum is 41 in the Assembly (out of 80) and 21 in the Senate (out of 40), regardless of any vacancies.
Q: Is this opinion still good law?
A: It has not been formally withdrawn. The underlying cases (Ross, Prezlak, Aurentz) are still authoritative. The basic framework, three buckets keyed to statutory language, remains the working law in New Jersey for determining quorums.
Background and statutory framework
A "quorum" is the minimum number of members of a body required to hold a meeting and conduct official business. Without a quorum, action taken is generally void or voidable. The common-law rule (62 C.J.S. § 399) is that a quorum is a majority of the body, and vacancies reduce the count. But statutes often modify that rule.
The opinion identifies three statutory patterns:
Pattern 1: Specific number. Examples include N.J.S.A. 11A:2-3 (Merit System Board: "three members" of a five-member board), N.J.S.A. 27:1B-4 (NJ Transportation Trust Fund Authority: "three members" of five), N.J.S.A. 52:18A-78.4d (NJ Building Authority: "seven directors" of twelve), and N.J.S.A. 55:14A-6 (local housing authority: "four members" of seven). Vacancies do not change the count because the number is fixed in the statute.
Pattern 2: "All the members" or "authorized members" or constitutional analogs. Examples include N.J. Const. Art. IV, § IV, ¶ 2 ("a majority of all its members"), N.J.S.A. 40:81-20 ("a majority of all the members" of a municipal council), N.J.S.A. 40:69A-180(a) ("a majority of the whole number of members" of a city council), and N.J.S.A. 40:55D-6 ("the majority of the full authorized membership of a municipal agency"). The leading case is Ross v. Miller, 115 N.J.L. 61 (Sup. Ct. 1935), which held that "a majority of all the members" of a 7-member city council is 4, based on full authorized membership, not on currently sitting members. Dombal v. Garfield, 129 N.J.L. 555 (1943), reaffirmed this. Prezlak v. Padrone, 67 N.J. Super. 95 (Law Div. 1961), applied it to a 10-member East Orange city council with one resignation, holding that 6 (not 5) was the quorum. Aurentz v. Planning Board, 171 N.J. Super. 135 (Law Div. 1979), applied the same rule to a 7-member planning board under N.J.S.A. 40:55D-6.
Pattern 3: "A majority of the members" or silent. Examples include N.J.S.A. 34:1B-49c ("a majority of the members of the board") and N.J.S.A. 45:1-2.2d ("a majority of the voting members of such [professional] boards"). The Urban Enterprise Zones Act (N.J.S.A. 52:27H-60 et seq.) is silent on quorum. Under common law and Edgewater Park v. Edgewater Park Housing Authority, 187 N.J. Super. 588 (Law Div. 1982), the quorum is a majority of currently sitting members, vacancies are subtracted.
The opinion specifically addresses the interaction with N.J.S.A. 45:1-2.2d (professional boards), where a 1977 amendment created a split: quorum is "a majority of the voting members" (Pattern 3, current sitting members), but action requires "the affirmative vote of a majority of the members of the entire board or commission" (Pattern 2, full authorized membership). Formal Opinion No. 6 (1978) had already worked through this. Practitioners need to track both numbers separately.
The "rule of necessity", an emergency ethics doctrine that lets a body act when fewer members than a quorum are available because of conflicts of interest, and the action cannot be postponed, is a narrow safety valve only.
Citations and references
New Jersey constitutional and statutory provisions:
- N.J. Const. art. IV, § IV, ¶ 2, Legislature quorum
- N.J.S.A. 40:55D-6, Municipal Land Use Law definitions
- N.J.S.A. 40:81-20, Municipal council quorum
- N.J.S.A. 45:1-2.2d: Professional board quorum
Key cases:
- Ross v. Miller, 115 N.J.L. 61 (Sup. Ct. 1935), leading "all the members" case
- Prezlak v. Padrone, 67 N.J. Super. 95 (Law Div. 1961), extended to "whole number of members"
- Aurentz v. Planning Board, 171 N.J. Super. 135 (Law Div. 1979), Municipal Land Use Law
- Matawan Teachers Ass'n v. Board of Education, 223 N.J. Super. 504 (App. Div. 1988), common-law default
Prior AG Opinions:
- Formal Opinion No. 3 (1961), Legislature quorum
- Formal Opinion No. 6 (1978): N.J.S.A. 45:1-2.2d professional boards
Source
- Original PDF: https://www.nj.gov/oag/oag/ag%20opinion%201991-3.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.
State of New Jersey
DEPARTMENT OF LAW AND PUBLIC SAFETY
OFFICE OF THE ATTORNEY GENERAL
ROBERT J. DEL TUFO, ATTORNEY GENERAL
May 7, 1991
Hon. Andrew Weber
Chief Counsel to the Governor
State House
CN 001
Trenton, New Jersey 08625
Re: FORMAL OPINION NO. 3 (1991)
Determination of quorum for meetings of public body where one or more vacancies exist in membership.
Dear Counsel Weber:
You have asked how a quorum of members of a public body is determined when one or more vacancies exist in the agency's membership. For the following reasons, it is our opinion that where an act prescribes a specific minimum number of members to constitute a quorum for meetings, that number must be present in all cases despite any current vacancies in the agency's membership. Similarly, where an act defines a quorum as a majority or larger fraction of "all the members" or of "the authorized members," the number constituting a quorum is a fixed one which remains constant irrespective of vacancies. On the other hand, in those acts where a quorum consists of "a majority of the members" or words to that effect, or where the act says nothing at all on the matter, a quorum means a majority of the actual current membership after subtracting any vacancies.
A quorum is the number of members of a body necessary to hold a meeting. 62 C.J.S. § 399 at 757. Absent a statute to the contrary, the common law rule in New Jersey and elsewhere is that "a majority of a public body constitutes a quorum," Matawan Teachers Association v. Board of Education, 223 N.J. Super. 504, 507 (App. Div. 1988); see also Edgewater Park v. Edgewater Park Housing Authority, 187 N.J. Super. 588, 597 (Law Div. 1982).
The most common form in which a quorum requirement appears in enabling acts of public bodies is as a fixed, specific number representing a majority of the total membership. See, e.g., N.J.S.A. 52:9Q-12e (quorum of Capital City Redevelopment Corporation is "five directors" of nine-member board); N.J.S.A. 55:19-4g ("five members, including at least two ex officio members" of nine-member board of directors of Urban Development Corporation); N.J.S.A. 52:18A-78.4d ("seven directors" of 12-member New Jersey Building Authority); N.J.S.A. 11A:2-3 ("three members" of five-member Merit System Board); N.J.S.A. 27:1B-4 ("three members" of five-member New Jersey Transportation Trust Fund Authority); N.J.S.A. 55:14A-6 ("four members" of seven-member local housing authority).
As an alternative to prescribing a specific number of members, there is a second way in which enabling acts may establish a fixed quorum requirement which remains constant at all times despite existing vacancies. In this variant, the act does not use a single number but defines a quorum as a majority or some larger fraction of the agency's total authorized membership. The omission of a specific number in this type of statute merely reflects the fact that the act applies to more than one type of public body, or to a single type of varying size as established in separate legislation. See, e.g., N.J.S.A. 40:81-1 and 40:81-20 ("a majority of all the members" of a municipal council constitutes quorum where council may be comprised of "three, five, seven or nine members"); N.J.S.A. 40:69A-180(a) ("a majority of the whole number of members" of a city council); N.J.S.A. 40:55D-6 (defining quorum in Municipal Land Use Law as "the majority of the full authorized membership of a municipal agency"). See also N.J. Const. (1947), Art. IV, § IV, ¶ 2 (in both houses of Legislature "a majority of all its members shall constitute a quorum to do business.").
With both types of statutes (or constitutional provisions), the intent is the same: to establish a fixed number for a quorum which is based on an agency's full statutory membership and which remains constant despite temporary vacancies resulting from death, resignation or expiration of term. The rule in New Jersey is that such provisions must be strictly interpreted and enforced. The leading case on this point is Ross v. Miller, 115 N.J.L. 61 (Sup. Ct. 1935). There, the City of Clifton fell within a class of municipalities for which a city council of seven members was established by State law. The deaths of two members left the council with five current members. A statute provided that "a majority of all the members of the municipal council shall constitute a quorum…" The common law rule, said the Court, was that "a majority of all the members of a municipal governing body constituted a quorum," but that in the event of one or more vacancies "a quorum consisted of a majority of the remaining members." 115 N.J.L. at 63 (citations omitted). It concluded, however, that the governing statute, defining a quorum as "a majority of all the members" of the council, required "a majority of the full membership prescribed by law, rather than of the qualified, sitting members for the time being." Id. at 64. Hence, a quorum consisted of four members, a majority of the total authorized membership of seven, rather than three members, a majority of the current membership after the two vacancies. Accord, Dombal v. Garfield, 129 N.J.L. 555 (Sup. Ct. 1943).
Twenty-six years later, the Law Division, in Prezlak v. Padrone, 67 N.J. Super. 95 (Law Div. 1961), reaffirmed the Ross rule in construing an East Orange city charter provision which defined a quorum for the transaction of business as "a majority of the whole number, as herein provided, of the members of the city council." The council consisted of ten members but there was a vacancy resulting from a resignation. Citing Ross and other decisions, the Court concluded that an interpretation of the phrase "a majority of the whole number of the members" as requiring "the presence of a majority of all seats of that body, whether filled or not, has been firmly established in our common law." 67 N.J. Super. at 100. Accordingly, a quorum consisted of six members, a majority of the full ten-member council, rather than five, a majority of the nine members remaining after the resignation. Id. at 103. See also Aurentz v. Planning Board, 171 N.J. Super. 135, 139 (Law Div. 1979) (under Municipal Land Use Law definition of quorum in N.J.S.A. 40:55D-6 as "the majority of the full authorized membership of a municipal agency," four members of seven-member planning board constituted quorum).
A month before the decision in Prezlak, the Attorney General issued an opinion which, like that decision, followed the rule of Ross v. Miller. We construed various provisions of the State Constitution which require action by a majority or greater percentage "of all the members" of the Senate or General Assembly. One of these provisions, Art. IV, § IV, ¶ 2, states that "a majority of all its members shall constitute a quorum to do business." We concluded that "constitutional references to a majority or to fractions of 'all the members' of the houses of the Legislature must be construed to refer to fractions of the full membership authorized by law, even though from time to time one or more seats may be vacant." Formal Opinion No. 3 (1961); see also Formal Opinion No. 6 (1978) (phrase "a majority of the members of the entire board or commission" in N.J.S.A. 45:1-2.2d means majority of full membership of professional board); 67A C.J.S. § 6 at 619 ("Whenever the number required to constitute a quorum is fixed by statute or other rule, a diminution in the number of members of the body will not change the number necessary for a quorum.").
In sum, wherever an act expresses a quorum for meetings of a public body as a specific number of members, or as a majority or other fraction of "all the members" or of "the authorized membership" or words to that effect, the quorum requirement must be construed as a fixed number which, based as it is on the agency's total statutory membership, does not vary with any temporary vacancies created by expiration, resignation or death.
Although the kind of provision just discussed — fixing a quorum as a majority or larger percentage of an agency's full statutory membership — appears to represent the most common form of quorum provision, it is not the only kind. Enabling acts for public bodies sometimes define a quorum merely as "a majority of the members" or similar language. See, e.g., N.J.S.A. 34:1B-49c ("a majority of the members of the board shall constitute a quorum" for meetings of New Jersey Development Authority for Small Businesses, Minorities' and Women's Enterprise); N.J.S.A. 45:1-2.2d ("a majority of the voting members of such [professional] boards or commissions shall constitute a quorum thereof."). In other instances, the act is simply silent on the matter of a quorum. See, e.g., New Jersey Urban Enterprise Zones Act, N.J.S.A. 52:27H-60 et seq.
In both cases, the rule in New Jersey and most other states is the same: a quorum, absent some clear evidence to the contrary in the act's text or legislative history, consists of a majority of the agency's current membership; in other words, a majority of the authorized membership reduced by any vacancies. As stated in Ross v. Miller, supra: "At common law, a majority of all the members of a [public] body constituted a quorum; and in the event of a vacancy a quorum consisted of a majority of the remaining members." 115 N.J.L. at 63 (citations omitted). In Prezlak v. Padrone, supra, the Court applied this rule in distinguishing between a city charter provision which defined a quorum for the transaction of business as "a majority of the whole number of the members of the city council" and required "corporate action" by the same number, from a second provision which authorized the filling of vacancies without specifying numbers needed for a quorum or vote. The Court found the omission of these details in the second provision "significant" and, ultimately, controlling, holding that action to fill a vacancy could be taken by a majority of the current members remaining after a resignation. 67 N.J. Super. at 109. See also Edgewater Park v. Edgewater Park Housing Authority, 187 N.J. Super. 588, 597 (Law Div. 1982); State v. King, 562 S.W.2d 704, 706 (Mo. Ct. App. 1978) ("The parties agree that in computation of the requisite three-fourths majority, the number of councilmen to be considered shall be reduced by reason of Councilman Theiss' death."); 62 C.J.S. § 399c at 758–759 ("…as a general rule, if there is a vacancy in the council or governing body, a majority of the remaining members will suffice for a quorum, especially where a statute or charter defines a quorum as a majority of the council, or a similar phrase, as distinguished from a majority of the entire board 'elected,' or similar terms.").
In Formal Opinion No. 6 (1978), we discussed the distinction between the two types of quorum provisions in the context of N.J.S.A. 45:1-2.2d. That provision defines a quorum for meetings of professional boards as "a majority of the voting members" but, in an amendment added in 1977, adds that action may be taken "upon the affirmative vote of a majority of the members of the entire board or commission." (Emphasis added.) We concluded that a majority of a board's full authorized membership was required to take formal action as a result of the 1977 amendment, but that for purposes of a quorum only a majority of the current members after any vacancies was necessary. This reading of the act is consistent with the decisions and other authorities discussed above.
It is appropriate to add a final comment on this point. It is possible to hypothesize a situation in which the number of vacancies in an agency's membership might become so large, and the number of remaining members so small, that a quorum comprised of a majority of current members would not constitute a fair representation of the agency. We recognize in this respect that "[t]he requirement of a quorum is a protection against totally unrepresentative action in the name of the body by an unduly small number of persons." Robert's Rules of Order (1981), p. 16. While in extreme emergencies there might be resort to other legal doctrines such as the "rule of necessity" which could enable a public body to act in rare cases where less than an authorized quorum is available but where a public exigency requires governmental action, we must be mindful of the dictum in Ross v. Miller, supra, that "[i]t would clearly do violence to the legislative purpose and policy to hold that if the membership were…reduced to one, the surviving member could" act alone. 115 N.J.L. at 66. This possibility is lessened by the provisions usually included in agency enabling acts by which a member whose term has expired continues in office until a successor is appointed and takes office. In any event, the issue must be addressed by considering the specific factual circumstances in which the issue arises.
For these reasons, it is our opinion that laws which define a quorum for meetings of a public body as a specific minimum number of members must be strictly applied irrespective of any vacancies in the agency's current membership. Laws which define a quorum as a majority or larger percentage of "all the members" or of "the authorized membership," or words to that effect, must likewise be read as requiring a fixed number of members which remains constant despite any vacancies. On the other hand, where an act states a quorum consists of "a majority of the members" or "a majority of the voting members," or where an act is silent on the matter, a quorum means a majority of the current membership after taking into account any vacancies.
Very truly yours,
ROBERT J. DEL TUFO
Attorney General
Footnote: The rule of necessity is an ethical doctrine governing public bodies which, under certain limited circumstances, allows a body to act upon a particular matter when less than a legal quorum of the group is qualified to act. The rule is generally applied when a number of the members of the public body have a conflict regarding a particular item which otherwise would prevent such members from voting upon that matter. In order for the rule to be properly invoked, the body must be unable to act without the proposed action and there must exist a pressing necessity for the action to be taken which cannot be postponed. Under application of the rule, all members, including those with conflicts, are permitted to vote, and no alternative forum may exercise the function. See Allen v. Board of Educ., 233 N.J. Super. (1989).