Here's the thing

Here are six things you need to know regarding the status of Trenton Mayor Tony Mack now that a federal jury has found him guilty in the corruption case. Some of this information we have posted before but it bears repeating.

# 1:  He is still mayor unless and until he resigns OR the office is deemed vacant. The state law covering this is as follows:

§ 40A:16-3. When office deemed vacant

The office of a mayor or a member of the governing body of a municipality shall be deemed vacant:

a. Upon its being so declared by virtue of a judicial determination;

b. Upon the death of the mayor or a member of a governing body;

c. Upon a determination of the other members of the governing body that the mayor or a member of a governing body no longer resides within the corporate limits of a municipality or ward from which he was elected;

d. Upon the refusal of the mayor or member of a governing body to qualify or serve;

e. Upon a judicial determination that the mayor or member of a governing body shall have become physically or mentally incapable of serving;

f. Upon the filing of a written resignation with the municipal clerk by the mayor or a member of the governing body, except a resignation filed following the filing of a recall petition;

g. Whenever the mayor, when required by law to attend meetings of the governing body, or a member of the governing body, fails to attend and participate in any meetings of the governing body for a period of 8 consecutive weeks without being excused from attendance by a majority of the members of the governing body, at the conclusion of such period; provided, however, that the governing body may refuse to excuse only with respect to those failure to attend and participate which are not due to legitimate illness; or,

h. Upon a determination that the office comes within the purview of R.S. 19:3-25.

Got it? In this particular matter, Tony Mack must resign or a STATE judge, upon petition from the NJ Attorney General or the (Mercer County) Prosecutor sign an order vacating the office. Otherwise, Mack is mayor until Judge Shipp declares the office vacant upon sentencing.  

(NOTE: when we say the office is vacated, that refers to a permanent situation, not a temporary absence. Temporary absences can not continue beyond 60 days and would lead to a possible declaration of the office being vacant).

Currently, both the Trentonian and the Times are reporting the order is not likely to be signed until sometime Monday. So, we wait.

# 2: Who becomes the mayor upon the office being vacated?

§ 40A:9-131. Acting mayor 

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.

So, South Ward Councilman George Muschal, would become the acting mayor upon the vacation of the office.

# 3: How long does the Council President serve as acting mayor?

§ 40A:16-12. 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.

The governing body has 30 days to appoint a successor to fill the vacancy.

# 4:  How many votes does it take to fill a vacancy in the office of mayor?

§ 40A:16-6. Vote required to fill vacancy in office of mayor

An appointment to fill a vacancy in the office of mayor shall be by a majority vote of the entire membership of the governing body.

There are seven members of council. A majority is four. The “nominee” can vote for him or her self.  

# 5: What happens if council fails to appoint someone to fill the vacancy in the office of mayor within that 30 day time span?

§ 40A:16-14. Special election to fill vacancy in the office of mayor; limitation on authority to appoint

If a governing body shall fail to fill a vacancy in the office of mayor as provided in N.J.S. 40A:16-4a or 40A:16-5a within the 30-day period prescribed by N.J.S. 40A:16-11 or 40A:16-12, the municipal clerk shall forthwith fix the date for a special election to fill the vacancy to be held not less than 45 days nor more than 50 days after the expiration of the time fixed for the filling of the vacancy. If the date fixed for a special election shall fall within 20 days prior to the holding of any general election, regular municipal election or any other election within the municipality, the vacancy shall be filled at that election. If the date fixed for a special election shall fall within 20 days after the holding of any general election, regular municipal election or any other election within the municipality, then the special election to fill the vacancy shall be held not less than 20 days nor more than 25 days from the date of that election.

Notwithstanding the foregoing, if a vacancy in the office of mayor occurs in the final 6 months of the term of the mayor, no special election shall be held to fill the vacancy.

No appointment shall be made by a governing body to fill a vacancy occurring in the office of a mayor after the fixing of a date for a special election to fill the vacancy pursuant to this section.

So, if the governing body fails to appoint someone to the vacancy within the 30 day window, the council president remains as the acting mayor because we are within the final 6 months of the term.

# 6: What happens to the council president’s seat on the governing body when he becomes the acting mayor?

To answer that, we look at the following court case:

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).

So, 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.

Muschal would serve as both acting mayor and south ward councilman/council president.