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.

Disappointed

Trenton City Council held a special meeting Tuesday night. The purpose of the meeting was to present publicly the legal process for filling any vacant elected offices (council or mayor).

The meeting was relatively brief, under an hour. The information was presented, council was provided an opportunity to raise any questions (they had none) and then members of the audience were invited to ask questions.

Despite reports last week of errors in the way the city legal department described the process to council in advance of the meeting, the information provided tonight was correct.

In short:

• If a vacancy occurs in a council position, the remainder of the governing body appoints a replacement by a majority vote. 
• If a vacancy occurs in the office of mayor, the council president becomes the acting mayor until the body appoints a replacement.
• In either case, if the vacancy occurs prior to September 1 of the final year of the term, a special election is scheduled for the next general or municipal election, whichever comes first.
• If a vacancy occurs after September 1, the appointee completes the term; no special election is required.

There were some good questions raised by members of the public tonight.

 

Q: Who can be appointed? A: Anyone who is legally qualified to hold the seat. Not just a member of council or the administration.

Q. What constitutes a majority vote on an appointment? A. Four votes out of the seven possible (in the case of a tie in voting for a replacement council member, the mayor may vote).

A little trickier question was about whether there would be an open process of soliciting names and resumes of those interested in filling any future vacancies and just how that process might be handled.

The council president promised as open and transparent a process as the law allows and an open call for submissions from interested parties. The law director rightfully pointed out that criteria for evaluating the submissions would need to be agreed upon by the governing body and made known to the public.

All well and good. Moreover, the proceedings went better, largely, than one might have expected after reading of the earlier confusion over the actual process.

What was unsettling, though, were questions raised about whether or not members of city council had been approached about securing their votes for one particular individual or another to be appointed mayor in case of a vacancy.

The reason for the line of questioning was a obvious belief that some sort of back room deal had already been made on just who council would appoint to fill a vacancy in the office of mayor.

The political climate in Trenton has long fostered an abundance of conspiracy theories. One could suppose it is a natural by-product of politics.

However, if this is the tone the upcoming campaign is going to take than we have a big problem.

Trenton is in crisis. We need competent, steady leadership. We do not need another thin-skinned, suspicious, administration. We need to build coalitions and to include all segments of the population. We can no longer afford to discount or disparage others simply because they are rivals or challengers.

It is a given that candidates cannot absolutely control what their supporters say and do, but they can make an effort or distance themselves from those who won’t behave civilly.

There is no room for the accusatory challenges launched from the podium tonight. Nor is there cause for the commentary passed between various members of the audience. That kind of behavior is not going to save Trenton. It is only going to send us further along the road to dysfunction and divisiveness.

If you are going to campaign through innuendo and rumor, you are not going to win a lot of votes. And you are not going to help Trenton.

It would benefit us all if candidates and their supporters would keep their conspiracy theories to themselves unless and until they have very credible evidence to back up their assertions. Failing to do so will not only hurt their chances of obtaining the goal they seek, it will severely inhibit the city’s ability to move out of these troubled times and onto recovery.

Isn't the whole idea for us to be better, do better than our recent history indicates we are?

It's really not that hard

The phrase “you can’t make this stuff up” has, along with its more scatological sibling, been uttered a lot these past 33 months or so. A whole lot. Daily, even.

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

2-4 Mayor.
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.

A lesson to be learned

The recent bribery trial of Hamilton Mayor John Bencivengo continues to send ripples through the normally placid pond of township politics.  Bencivengo rightfully resigned one day after a federal jury convicted him on all counts of accepting money in exchange for offering his political influence. 

Filling the vacancy created by the resignation has caused lawyers to examine and re-examine state law to ensure proper process is followed. At the same time, it has generated its own set of controversy and questions.

Under the Mayor/Council form of government the presiding officer of the municipal governing body (council president) assumes the duties of mayor immediately upon the vacancy of the office.

The governing body then has 30 days to appoint an acting mayor to hold the office until a special election can be held to choose a replacement to complete the term. If the vacancy comes after a certain point in the final year of the term, the acting mayor chosen by the governing body completes the remainder of the term (no special election held).

In the case of municipalities with partisan elections, such as Hamilton, the party whose nominee held the vacated seat (the GOP in the current example) has 15 days from the creation of the vacancy to submit three names to the governing body to consider for the appointment as acting mayor. In municipalities with non-partisan elections, the governing body selects the individuals for consideration.

Watching the second act of this political soap opera is not just about the entertainment value. Sure, it offers us lots of opportunity for sarcasm and snarky comments. It also provides a valuable lesson in why we must all get involved in carefully vetting and choosing our elected leaders.

For Trentonians who have already learned the hardships of making poor choices in leadership it provides a very real case study of what we may ourselves be going through in a few months time.  Should Mayor Mack be indicted, go to trial and be convicted, our city will be faced with the very same scenario, but with some complicating twists of our own making.

The elevation of the council president to acting mayor upon the vacancy of the office will most likely set off a pyrotechnic display not witnessed in Trenton since Dec. 26, 1776. Any decision made by the person assuming the mayor’s chair is likely to be questioned/challenged by the governing body, the members of which can rarely agree on what day of the week it is let alone actions to be taken. (Example from Hamilton: the dismissal of Business Administrator John Ricci by acting Mayor Kevin Mears is generating comments and criticisms according to press reports).

Complicating matters will be the oversight on hiring and firing granted the DCA via the state aid MOU. No mayor of Trenton, acting or elected, currently enjoys a free hand in making key personnel decisions such as department directors and the business administrator. There are, however, other appointed (non-contractual) employees who could be, and probably should be, immediately dismissed by any acting mayor.

The selection of a replacement mayor, whether temporarily until a special election is held or to complete the remainder of the current term, will be the real battle.

Who will guide the process?

Our governing body is short on experience and, in some individual cases, completely void of comprehension of their rights and responsibilities.

The legal department, also short on knowledge and experience with municipal law, has to date not been particular assertive in matters of technicalities.

The deliberation over who should be appointed acting mayor will likely be a comedy of errors and omissions. With no local party committee to winnow down the choices to three, any and all interested and legally qualified parties will have to be given their due before a group of finalists are put up to a vote.

There are already two individuals who have filed with NJ ELEC to run for the office of mayor in 2014, a third has announced an exploratory committee and at least a fourth who has previously expressed an interest in running. That list does not include any sitting council members who may be eyeing “the big chair.”  

How many more names might be tossed into the hat? How will individual loyalties and personal plans of members of council figure in the decision making?

Can we expect a smooth, orderly and proper decision to be made by at least five members of a governing body that has been largely stalemated on any major initiative over the past 27 months?

What will happen to the “business” of the city while the above battle is fought? For over two years the city has been adrift due to the incompetency of the Mack administration, the inexperience of the governing body and the inability of the two branches of government to get the simplest things done (remember the toilet paper crisis of last spring?)

The events of the past couple of years in Trenton and Hamilton show just why it is so important for all voters to actively participate in the election process. Researching the background, experience and qualifications of all candidates before heading into the voting booth is the beginning. Keeping elected officials accountable and our government transparent is equally important.

If we want better government, we all need to be better citizens. Otherwise, we are likely to see repeats of the disasters we are living through right now.