Trenton Mayor Tony Mack may not be leaving office anytime soon

Not since Milton Milan in Camden in December 2000 have state prosecutors needed to force a mayor from office.

By Alex Zdan and Jenna Pizzi

TRENTON — Mayor Tony Mack has remained in office for nine days since his conviction on corruption charges, defying state law, past practice by other elected officials linked to corruption, and residents who simply want him gone.

And Mack may not be leaving anytime soon.

The state Attorney General’s Office is asking a Superior Court judge to remove Mack as mayor, but the hearing is not scheduled until Feb. 26. Even then, Mack could conceivably drag out the process for weeks with a court fight and appeals.

Mack was found guilty Feb. 7 of bribery, extortion, wire fraud and mail fraud, but his conviction in a federal court does not trigger his automatic removal from office. Without a resignation, he will remain mayor of the capital city until state prosecutors can get the judge to sign off on an order of forfeiture. While in office, Mack continues to receive his $4,800 biweekly salary.

“While an indictment does not necessarily mean someone is guilty, a trial does,” said Ben Dworkin, a political science professor at Rider University. “Every delay in a situation — like that which is happening in Trenton — is unfortunate. It just delays the inevitable and the city’s need to move forward.”

It’s the first time in 13 years that New Jersey’s attorney general has had to go to court to oust a convicted mayor. Not since Milton Milan in Camden in December 2000 have state prosecutors needed to force a mayor from office.

Milan was convicted of 14 corruption counts, including charges he took $30,000 in bribes from a mob boss and stole campaign money to finance a vacation to Puerto Rico. A judge declared Milan out of office after just a day, but his situation was a little different from Mack’s: Milan was jailed pending sentencing.

State law says that any public official convicted of a breach of the public’s trust forfeits his or her right to hold office. Removal after a conviction in state court is automatic, but not if the official is tried by federal prosecutors as Mack was.

Quick and protracted ousters

Hamilton’s former mayor, John Bencivengo, announced his resignation hours after he was convicted on federal extortion charges in November 2012, and was out of office at noon the next day. Yet Mack, a former all-star wrestler at Trenton Central High, could be preparing to go to the mat.

Peter Aseltine, a spokesman for acting Attorney General John Hoffman, said most officials who fight their removal contend the crime did not have a connection to their position.

“We are surprised,” he said Friday, “given how clear-cut this is, how clearly it touches on (Mack’s) office, that he’s fighting it.”

Mack has been out of sight since his conviction, hasn’t reported to his office in City Hall, and has shown no evidence of wanting to make executive decisions.

Jerome Ballarotto, a defense attorney who represented Bencivengo in his corruption trial and again on his pending appeal, said jail time is shocking to most people and is a personal matter, not a public, political matter.

“When a person is faced with this catastrophe in their life, they think about their wife, their children, their children’s future, as it should be — they think about themselves,” he said. “Their first order of business should be doing what is best for their constituents, but it is impossible to do that when you are faced with that calamity.”

At Mack’s Feb. 26 hearing in Superior Court, Judge Mary Jacobson can remove him from office immediately if she decides he is in violation. But the full process can take weeks.

Former Jersey City Mayor Gerald McCann, who was convicted on 15 federal counts of fraud and tax offenses on Dec. 17, 1991, held onto the post for nearly two months before the state Supreme Court ordered him removed from office on Feb. 12, 1992. McCann misspent more than $267,000 of a $300,000 investment from a Boca Raton, Fla., savings and loan meant to go toward the development of a marina at Liberty State Park in Jersey City.

McCann argued that he was not mayor at the time of the offenses and his actions did not touch upon his office.

After McCann was convicted, the Attorney General’s Office filed an application in Superior Court to have him removed. After he lost that hearing, McCann appealed to the appellate division, which allowed him to stay in office five more days so they could hear the case. The appellate court agreed McCann should be removed.

McCann took his case to the state Supreme Court, which immediately granted a stay. But the next day, the court decided McCann could continue to fight the decision, but he would be removed as mayor in the interim.

The state high court then upheld the two prior removals, and McCann spent two years in a federal prison.

A call for action

Mack’s refusal to leave office is a nightmare for people like Bill Guhl, a 39-year veteran of municipal government who served as administrator in Lawrence and Hamilton. Mack brought Guhl in as a volunteer business administrator when he first took office. Frustrated and saying Mack had no intent of following hiring regulations, Guhl quit four weeks later.

“The reality is, if Tony Mack had taken a Snickers bar from a convenience store and been convicted in municipal court, he would have forfeited his office immediately,” Guhl said Friday.

Guhl also is critical of the attorney general’s office, which is headed by Hoffman, a former assistant U.S. attorney who serves at the pleasure of another former member of that office: ex-U.S. attorney and now governor Chris Christie.

“Frankly, why would he want anything that could embarrass his administration?” Guhl asked of Christie. “Even in the form of his own Attorney General’s Office.”

Aseltine, the AG spokesman, said the judge is setting the timetable for Mack’s removal, and that the office filed its formal request to have Mack removed as quickly as it could.

Guhl even wrote up a city council resolution which called on the Attorney General’s Office to ask the judge for immediate forfeiture of Mack’s office, saying the mayor’s situation is causing the city to “suffer an immediate, grave and irreparable injury.” A move like that is not within the state’s power, according to Aseltine.

The city council resolution was pulled from the docket at Wednesday’s council meeting and not voted on.

If the order of forfeiture is successful, Mack will be banned from holding public office in New Jersey again, and have to give up the pension and benefits he accrued while an elected official. But he can keep his mayoral paycheck because the attorney general will not ask the court to make him forfeit the money, Aseltine said.

“Our role is to get him to forfeit his job as soon as possible,” he said.

History of corruption

Other New Jersey mayors have taken their time leaving office.

In 1994, Frank Priore, who was then mayor of Parsippany-Troy Hills, was in office for seven days before a state judge approved a forfeiture order submitted by the state Attorney General. Priore was sentenced to five years in prison on corruption charges, but was released after serving 52 months.

After a jury found that former Passaic Mayor Joseph Lipari guilty of extortion and income tax evasion in November 1992, Lipari stayed in office three days after the verdict was handed down but then quit.

McCann, Priore, and Milan seem to be exceptions, however. Most politicians over the last 15 years have either quit while under investigation or seen their terms expire before the trial verdict comes in.

Sharpe James was out of office as Newark’s mayor when he was arrested by the FBI, and by the time of his conviction his term as a state senator had expired as well. Likewise for former Perth Amboy Mayor Joe Vas, who had lost re-election as mayor before he was indicted in 2009. Vas then opted not to try for another term in the state Assembly, where he also served, and his time as an assemblyman ended two months before his federal trial began.

That’s no coincidence, said defense attorney Ballarotto, as the entire process from investigation to trial is a long and arduous war.

“Your attention is drawn from what you really need to do in the exercise of the duties of your office, which is why so many step down,” Ballarotto said.

“If you are able to prove that you are not guilty or that the government did not have enough evidence to overcome reasonable doubt, you can step back into your position and reassume your representation of the people,” he said.

Atlantic City Mayor Bob Levy’s 2007 resignation actually came before his guilty plea, when city officials couldn’t find him for two weeks. He was in a Somerset County rehab center while the feds investigated charges he falsified a military record to get veterans benefits.

City council members had asked a judge to declare Levy’s seat vacant, but it became a moot point with his resignation. The council president then was able to take over.

Other elected officials resigned almost immediately after being arrested. In 2009, in the massive corruption bust known as Bid Rig II, three of the 44 officials arrested were mayors. Two of them quit.

Secaucus Mayor Dennis Elwell resigned five days after his arrest. Peter Cammarano, the mayor of Hoboken who had been in office just 23 days when he was arrested, left office three days after Elwell did.

Officials realize that the taint of investigation and shock of an arrest weaken their ability to govern, Ballarotto said.

“They don’t have the energy, stamina, sometimes the funds or the political power to adequately represent what is in the best interest of the people,” Ballarotto said.

Political parties also realize that corruption investigations can prove fatal to candidates in election years. In 2007, Assemblymen Mims Hackett and Alfred Steele were arrested by the FBI as part of a large scale corruption takedown. The Democratic legislators were called out by a member of their own party, Gov. Jon Corzine, who demanded they resign.

Days later, both did. Hackett, also the mayor of Orange at the time, and Steele quit just a week before the filing deadline to replace them on the election ballot with another candidate.

Mack is a registered Democrat, but Trenton’s elections are nonpartisan. And Mack divorced himself from powerful Democrats in Mercer County long ago, when he challenged incumbent Mayor Douglas Palmer in the 2006 election, which Mack lost.

Who is in charge?

In Trenton last week, the line of succession was muddied by an executive order Mack signed during his trial. The order took away the automatic designation of business administrator Sam Hutchinson as acting mayor when Mack is out of town. Mack has not named another person acting mayor, and his whereabouts are not publicly known.

Hutchinson said Wednesday that Mack was on “appropriate” leave, but refused to say whether the mayor was using sick or vacation time, or whether he was still in the city. Still, city ordinances will continue to be sent to his desk for a signature, said City Clerk Richard Kachmar.

“We will continue to send them per our law department’s opinion that the mayor is the person still in charge,” Kachmar said.

The whole situation is turning into a sad farce for Guhl.

“There is no available mayor,” he said. “So any action that requires the mayor’s involvement can’t happen while Tony is hiding under a rock.”

Hutchinson and the council cannot make appointments to city jobs without a mayor’s approval, Guhl said, though Kachmar said rehiring from a layoff list is allowed. Legislative action in the city will be stymied, Guhl said.

“Any ordinance that gets adopted will essentially be a pocket veto because there’s no one to sign it,” he said.

The law department will not be defending Mack if he tries to remain in office, law director Caryl Amana said last week. She referred to Mack’s situation as a “personal matter.”

The lack of clarity about who is in charge led to a strange exchange between Hutchinson and acting-mayor-in-waiting George Muschal, the council president who will take over when Mack leaves. Anticipating Thursday’s heavy snowfall, Hutchinson on Wednesday asked Muschal to close city buildings and give workers the day off.

“I said, ‘I can’t close the city down,’” Muschal said Friday. He asked Hutchinson to do it.

“Hutchinson said he can’t do it because Tony signed the order that took away his powers,” Muschal said.

A swearing-in for Muschal that was scheduled for 90 minutes after Mack was convicted was canceled when Muschal realized no one had a copy of Mack’s resignation in hand.

Since then, Muschal has waited. He’s ready at a moment’s notice because he said Kachmar told him he needs to be sworn in immediately after Mack’s departure is official.

Muschal has not reached out to Mack.

“No,” he said. “Absolutely not.”

When Muschal is eventually installed, he can serve up to 30 days as acting mayor. Before then, the city council can vote on whether to choose Muschal or another person to finish up the 4½ months left on Mack’s term.

Tough transition

Former Camden Mayor Gwendolyn Faison knows a little about what Muschal will be walking into. Faison was council president in 2000, when Milan was convicted and ousted as Camden mayor.

Walking into the mayor’s job two days before Christmas that year, the then-75-year-old Faison said she was nearly overwhelmed.

“We got through it, but it wasn’t easy, let me tell you that,” she said.

“I had to depend on the people who had knowledge of government to help me,” she added. “And they did.”

The span from Milan’s arrest to his conviction had left most of his loyalists reassigned or unemployed, Faison said.

“It was tough, because things had become sort of unraveled because it took about a year to get through all the legal business,” she said.

Milan’s people had not kept proper records, she said, adding to the difficulty of the transition. Just as bad, Faison came in suddenly with no advisers and felt isolated.

“But I tell you what, the first couple of days I actually thought: ‘I don’t have anyone,’” Faison said.

She prayed for strength, but thinking about the ordeal again now she isn’t sure how she made it through.

It was a marked change from Milan, a political brawler who drove a big city-owned SUV and was convicted for taking bribes and laundering money through drug dealers. Faison ditched the SUV right away, and was eventually re-elected to two full terms before leaving office in 2010. She turned 89 years old Friday.

Mack still has his city-issued SUV in front of his house, though the police department reassigned his driver last week. The council moved to keep city business moving without Mack, voting Wednesday to allow the city’s chief financial officer Janet Shoenhaar along with Hutchinson and Kachmar to execute the $9.875 million in general obligation bonds related to the former city-owned hotel. Mack will be out as mayor no matter what on May 14, when he is sentenced by U.S. District Judge Michael A. Shipp in federal court.

Federal sentencing guidelines call for a minimum between four years and nine months and five years and 11 months for Mack. With the extortion charges alone carrying a maximum of 20 years, however, the judge could sentence Mack to significantly more time behind bars.

The sentencing comes the day after the first round of voting in the city’s mayoral election.

The winner will be sworn in at noon on July 1, when Mack’s four-year term expires.

“The wheels of justice are turning in the right direction,” said Kachmar, the city clerk. “We just have to wait.”

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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