So none of us should really be surprised to learn of new feats of absurdity accomplished by what is sometimes referred to as the municipal government of the city of Trenton.
Today’s example is another great idea gone wrong at the hands of an administration clearly not up to the task of guiding, let alone governing, this city.
A recap: our current mayor is under Federal indictment and awaiting trial on corruption charges. The trial is expected to be held this coming summer. If found guilty, at sentencing he loses his seat as the mayor, creating a vacancy in the office.
Ever since the mayor was arrested last September, and maybe even after the FBI raided his home and city hall on successive days in July of 2012, people have inquired about what happens “if and when?”
To the credit of Council President Phyllis Holly-Ward and the rest of the governing body, they determined it would be a good idea to hold a special council meeting to review, in public, the process of filling a vacancy in any of the elected offices in Trenton's city government. That meeting is scheduled for Tuesday, April 30 at 5:30 pm in Council Chambers at City Hall. This morning, Erin Duffy had an article in the Times about this meeting. A careful read of the piece indicates a problem. And not a small one.
Down towards the end of the piece, Duffy writes:
“Holly-Ward said the interpretation given to her by the city’s law department was that if the mayor stepped down permanently, the business administrator would serve as mayor for up to 60 days and then council would choose a new interim mayor.”
The text we underlined is key here. If this is truly what Holly-Ward was told, someone is mistaken.
If you look at the city code, you will find that Chapter 2-4 refers to the Mayor. Under that chapter, in articles E. and F. there are provisions for what happens when the mayor is not able to attend to the duties and responsibilities of the office on a temporary basis (E.) and when the position is deemed vacant (F.).
From the City of Trenton Code
E. Acting Mayor. As provided by the Charter (Section 3-12, N.J.S.A. 40:69A-42), the Mayor shall designate the Chief of Staff, the Business Administrator, any other department head or the City Clerk to act as Mayor whenever the Mayor shall be prevented, by absence from the City, disability or other cause, from attending to the duties of the office. During such time, the person so designated by the Mayor shall possess all the rights, powers and duties of Mayor. Whenever the Mayor shall have been unable to attend to the duties of the office for a period of 60 consecutive days for any of the above-stated reasons, an acting Mayor shall be appointed by the Council who shall succeed to all the rights, powers and duties of the Mayor or the then Acting Mayor.
F. Vacancy. A vacancy in the office of Mayor shall be filled by election for the remainder of the unexpired term at the next regular municipal election occurring not less than 60 days after the occurrence of the vacancy. Council shall fill vacancies temporarily by appointment to serve until the qualification of a person so elected.In the first instance, the mayor is able to designate an acting mayor to serve for up to 60 days in place of the elected official. This could be the Business Administrator, a Chief of Staff (if we had one), the City Clerk or any Department Director.
Situations where this might occur would be, for example, if the mayor were traveling out of state (as was the case last summer when Mayor Mack went on vacation and designated Business Administrator Sam Hutchinson as Acting Mayor. It could apply in times of illness or other medical leave, etc.
The point being, the absence is temporary.
The second section deals with the circumstances of the office being vacated by death, resignation, or some other reason that the official can not serve out the remainder of the term. This would be, in a phrase, a “permanent absence” as would be the case should the current Mayor be removed from office as a result of the pending legal case.
You will note that in section F. there is no mention of the BA stepping in for any length of time. This raises the question: “Then who becomes Mayor?”
For the answer, we must turn to state law. There are two unlinked provisions of law that deal with the matter and they are pretty clear. One is found in N.J.S.A. 40A:9 which is a string of sections of law dealing with the organization of local government. The other is in N.J.S.A. 40A:16 which focuses on the succession of office in a uniform way.
The general law:
§ 40A:9-131. Acting mayor (applicable to all communities)
In every municipality, unless otherwise provided by law, if a vacancy occurs in the office of mayor, by reason of death, resignation or otherwise, the presiding officer of the governing body shall become the acting mayor until a successor is elected and qualified.
The municipal vacancy law:
§ 40A:16-12 (Applicable to Trenton’s Non-Partisan form of Government)
Appointment to fill vacancy where incumbent was not nominee of a political party; time to fill vacancy
If the incumbent whose office has become vacant was not elected to office as the nominee of a political party, the governing body may, within 30 days of the occurrence of the vacancy, appoint a successor to fill the vacancy without regard to party.
Again, there is no mention of the ascension of the BA or anyone other than the presiding officer of the governing body to be acting mayor until a successor is named.
Further, there is a court case which determined that both of those laws are not only compatible but should be read and applied together.
DeSoto v. Smith, 383 N.J. Super. 384, 891 A.2d 1241, 2006 N.J. Super. LEXIS 54 (App. Div. 2006)
As the result of applying Section 40A:9-131, a municipal attorney was terminated by the Council President who became acting mayor and council president temporarily pursuant to N.J. Stat. Ann. § 40A:9-131. In an effort to defeat the acting mayor’s dismissal, it was argued that section 131, which allowed the council president to serve as both acting mayor and council president, violated the “separation of powers” doctrine. However the Court ruled that the doctrine of separation of powers was not generally applicable to a Faulkner Act mayor-council government, because the design of the Faulkner Act provided for checks and balances which would enable the Council by a 2/3 majority vote to nullify the acting mayor’s dismissal under N.J. Stat. Ann. § 40:69A-43(c).
The bottom line is that the succession in office law (40A:16-12) provides 30 days within which the council is to select an acting mayor pending the holding of an election (or for the unexpired balance of the term of the former mayor, depending on the time of the vacancy). Pending that, the Council President becomes acting Mayor as well as Council President.
This contradicts the interpretation that Council President Holly-Ward says she was given by the city law department.
Want further evidence?
We need only look a few miles east of Trenton’s City Hall to the Municipal Building for Hamilton Township. When then Mayor John Bencivengo resigned in the wake of the guilty verdict last November, who immediately became Acting Mayor?
Kevin Meara was the presiding officer of the governing body (township council) and thus became the Acting Mayor until the selection of Kelly Yaede to hold the title until the special election in November 2013.
Why Trenton’s law department has come up with this idea that the BA becomes the temporary Mayor is beyond us.
Hopefully, the state of NJ through the Department of Community Affairs, Division of Local Government Services will complete their "review" of the matter and advise all parties as to what is the correct information. Otherwise, we will end up with another empty but well-intended gesture of trying to do the right thing.