Convicted Mayor Tony Mack can remain in office at least two more weeks after he was given the chance yesterday to fight a state attorney general’s effort to remove him.
By Alex Zdan
and Jenna Pizzi
TRENTON — Convicted Mayor Tony Mack can remain in office at least two more weeks after he was given the chance today to fight a state attorney general’s effort to remove him.
Superior Court Judge Mary Jacobson set a Feb. 26 hearing date at the Mercer County Criminal Courthouse for Mack, when he will be able to appear and contest that his conviction on six federal corruption counts puts him in violation of state law. A written answer from him is due two days before.
Jacobson was responding to a complaint filed Monday by a deputy attorney general seeking an order of forfeiture that would force Mack from office. Mack was convicted Friday in federal court after a monthlong trial but has opted not to resign. Though state law says he is now ineligible to serve as mayor, without a resignation it will take a judge’s declaration to enforce state statute.
The legal process left South Ward Councilman George Muschal, the city’s mayor-in-waiting, on the bench today.
“I will do the job and I will lead this city in the right direction,” Muschal said during a city council meeting tonight.
Without Muschal occupying the mayor’s chair, who exactly was running the city remained in question today.
Business Administrator Sam Hutchinson said Mack has not been in City Hall this week.
“He is on leave,” Hutchinson said.
When asked if it was sick leave, vacation time or for some other reason, Hutchinson responded, “It is appropriate,” and refused to provide further details.
Hutchinson said he was notified Mack was on leave, but refused to say how or by whom he was told or whether Mack was still in the city.
During his trial, Mack sent a letter to the city clerk and council members rescinding his previous decision that Hutchinson would serve as acting mayor in his stead.
City Clerk Richard Kachmar said he has received no communication from the mayor appointing another person as acting mayor or notifying the clerk that Mack is on leave. City business will not suffer, said Hutchinson. He said the department directors will continue to work with him and with city council to ensure that things continue to get done, even with uncertainty in the mayor’s office.
Federal District Judge Michael A. Shipp cannot strip Mack of his office until the mayor’s sentencing, which is scheduled for May 14.
While Jacobson received the attorney general’s complaint between 3 and 4 p.m. Monday, her order to show cause was not filed until nearly 48 hours later.
Jacobson’s handwritten notes on the document reference “the court having granted plaintiff’s request for expedited review in light of the public interest.” Authorities said that, once the order is filed, it is the judge who sets the timeline for it to be heard.
“It occurred late on a Friday,” said Attorney General’s Office spokesman Peter Aseltine, referring to the verdict. “We have filed as quickly as we could.”
The complaint seeks to remove Mack from power, to ban him from public office, and to seize his pension and retirement benefits. Mack must respond with an affidavit or motion by “the expedited date of Feb. 24, 2014,” and the Attorney General’s Office will file its written response the following day, Jacobson wrote.
She is scheduled to hear the case at 11:30 a.m. Feb. 26. If Mack files nothing, Jacobson will decide the case based on the papers and not hear oral arguments.
Jacobson can sign the orders of forfeiture and order Mack immediately kicked out of office during that hearing.
Once the order is signed, Muschal has said the city clerk plans to swear him in. Mack’s ouster will be retroactive to the day he was convicted, which means Muschal can reverse any decision Mack made in his final days.
The court paperwork filed today does not identify any legal counsel for Mack. His attorney in the corruption case, Mark Davis, was sent copies of the forms, but Davis said his services were limited to Mack’s criminal defense and potential appeal in federal court.
Mack cannot use city legal resources to fight a “personal matter,” Law Director Caryl Amana said tonight.
Assemblyman Reed Gusciora (D-Mercer) said today he will propose changes to the state forfeiture law so that an elected official convicted of corruption charges in federal court will be immediately removed from office.
Gusciora said that with a larger number of criminal corruption cases being brought against local officials by the U.S. Attorney’s Office, it is appropriate that the state law makes federal convictions equivalent to state convictions.
“This happened right under our nose in the state of New Jersey,” he said. “It should be deemed automatically a state conviction.”
Gusciora applauded acting Attorney General John Hoffman for filing the appropriate paperwork to remove Mack from office.
“For now we have a complete leadership vacuum (in Trenton City Hall),” he said.
During the special city council meeting tonight, members were unable to make nominations for interim mayor as they had original anticipated they would be able.
Taking away some power from Mack, the six council members present voted unanimously to designate Hutchinson, Chief Financial Officer Janet Shoenhaar and Kachmar to execute the $9.875 million in general obligation bonds to redeem the outstanding bonds related the former city-owned hotel.
Council members assured residents that they would help to guide the city through the transition.
Mack ally and friend Alex Bethea said he is looking to the future.
“I am confident that this city will sustain itself and move forward,” he said. “I look forward to being part of the solution.”
“We as council will do everything we can to get everybody through the next few weeks,” said Councilwoman Marge Caldwell-Wilson.
Contact Alex Zdan at azdan@njtimes.com or (609) 989-5705. Contact Jenna Pizzi at jpizzi@njtimes.com or (609) 989-5717.
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