The people have spoken

Walking the dogs Saturday afternoon, we headed up Front Street. As we approached the Old Barracks, the strains of fife and drums could be heard. The closer we got, the louder the music.

It was very easy to imagine walking that very street some 237 years ago and hearing the same music emanating from the parade ground in front of the Barracks. It was hard to suppress a smile.

Coming around to the back side of the Barracks we came upon the landscaping crew laying the sod around the almost completed "Petty's Run" historic site.

This site, if you don't remember was the focus of controversy late in 2010. Excavations at the site uncovered the remains of a pre-revolutionary steel mill as well as the city's first cotton mill dating from the early 19th century. The steel mill is the only one from colonial America to have been located and uncovered.

Under Governor Corzine, the site was to be featured as part of the Capital State Park. When the Christie administration came in, plans were frozen due to the state's fiscal crisis. Lt. Governor Guadagno determined the excavation should be filled in. Preservationists and history buffs were up in arms.

Finally, with a promise of financial support from Mercer County, the state cancelled the plan to completely fill in and cover over the site. Instead, the site would be fenced, landscaped and interpretive signage installed to explain and celebrate the significance of that location.

The work is nearly complete. The ribbon cutting for the site is tentatively scheduled for late in May.

As the strains from the Barracks Fifes and Drums Corps echoed across the capital grounds, it caused us to pause and reflect on the history and significance of that corner of the city. 

The Barracks stand as a testament to the will of people or that of the government. They were built to house troops during the French and Indian War, rather than to have the soldiers billet in the houses of townspeople.

The building is also a symbol of Trenton's significance in our War for Independence from Great Britain.

Today, the preserved and interpreted presences of the Petty's Run site is there to remind us of our industrial past.  The fact that the site will be available to the public to view is due to the force of the voices that spoke up for its preservation. It was a bloodless fight of the people to overcome the single-mindedness (dare we say, "tyranny"?) of the state house.

The principles fought for in the 1776 were achieved and honored in 2011. The people spoke. Government responded. Appropriately.

The fifes and drums played. We smiled.

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.

Enough already

This situation about Paul Harris, the vehicle accident, whether or not he had permission to drive a city vehicle, etc. has gone on too long.

It seems pretty clear that a city vehicle had been repaired at the request and with the knowledge of the BA's office...specifically his assistant, John Seigle.

While it is quite plausible that Mr. Harris used the vehicle without formal, written permission, it does not seem likely that he did so without anyone's knowledge and assumed approval. The set up of the offices in which the vehicle keys are kept (in a lockbox) is such that it would be hard to obtain them during the work day without someone taking notice.

The amount of misinformation, misdirection and miss-appropriation of city resources, while par for THIS administration, is way beyond what is acceptable.

Both of the local dailies have reported on this. The Trentonian, the Times (twice) and Trentonian columnist L. A. Parker has commented on the matter.

It certainly appears that, as Mr. Parker puts it, Mr. Harris was made the scapegoat in an episode that points up several failings of Trenton City Government:

1. The city has way too many vehicles than are needed.
2. There are minimal policies and procedures governing who uses these vehicles, when and for what reasons.
3. There is lax adherence to the policies that do exist.
4. There is no adherence to the 2010 ordinance that was meant to rein in the abuses and costs of maintaining the fleet of passenger vehicles.
5. The city has failed to provide accurate information in this matter: either the inventory dated June 30, 2012 is incorrect or the statements that BA Sam Hutchinson did not like the "Crown Vic" he had been assigned is flat out wrong. This document says he was assigned a Chevy Caprice.
6. The vehicle in the police report, has a license plate number matching one that was "unassigned" at the time of the June inventory. Just like the Saturn that Mr. Harris had been driving around in for a few months and that it is claimed Mr. Hutchinson desired over the "Crown Vic (Chevy Caprice?)". The Ford Escape was, in effect, a "pool car" available to anyone needing a city vehicle to do city business (such as dropping off another employee to pick up a recently repaired auto).

Kevin Moriarty discusses this kind of "casual corruption" thoroughly in his blog post from the other day.

We suggest that the Administration rescind its disciplinary action against Mr. Harris, immediately (or whatever the proper action is according to the Civil Service rules.)

We also suggest that the Administration make immediate plans to reduce the current passenger vehicle fleet and adopt a straight up reimbursement policy/procedure for business use of a personal vehicle.

Civil Service Commission orders Mendez gone!

In an order issued on Wednesday, April 3, 2013, the NJ Civil Service Commission determined that the layoff of former head of the Trenton Park Rangers, Michael Morris, was faulty and ordered him reinstated.

Robert "Chico" Mendez who had been hired as a "seasonal" employee when Mayor Mack took office was ordered to be removed from his position.

Mendez, a long-time supporter of the mayor, had been put in charge of the Park Ranger staff even before the September, 2011 layoff that initially removed Morris from the city payroll.

This decision follows a similar one last September that called for the removal of Mack hires, Dave Briegle, Charles Hall and Henry Page from their posts as "Water Meter Readers" with the Trenton Water Works.

Hall, who worked in the city Recreation, Natural Resources and Culture department while being paid as a TWW employee has since plead guilty to charges in both the Tony Mack corruption case and the Jo Jo Giorgianni drug distribution case.