Urging a state court judge to remove Mack from office, Deputy Attorney General Steven Yomtov disputed claims made by Mack in an attempt to defer or delay his ouster.
By Jenna Pizzi and Alex Zdan
TRENTON — Mayor Tony Mack’s legal argument that he shouldn’t be removed from office following his conviction on corruption charges is “plainly wrong,” and there is “no defense” for the mayor, who doesn’t have a law degree and has no experience arguing a case in court, a deputy attorney general argued yesterday.
Urging a state court judge to remove Mack from office in a hearing that will take place this morning at 11:30 a.m., Deputy Attorney General Steven Yomtov disputed claims made by Mack in an attempt to defer or delay his ouster.
“The residents of Trenton deserve better than having a convicted felon, who is pending sentence, administer the vital daily tasks that the office of the Mayor is duty-bound to perform, only to be negated when he is inevitably removed from office,” Yomtov wrote.
“Postponement of the inevitable would neither serve the public’s interest, nor even defendant’s personal interests,” Yomtov wrote.
In a court filing Monday, Mack argued that his criminal defense attorney Mark Davis has made an motion for a new trial in federal court and that a conviction there is not “guaranteed.” He said he should be allowed to continue to serve as mayor, or until he is sentenced.
Mack was convicted Feb. 7 of participating in a scheme to extort bribes from city developers. He has since refused to resign from his mayoral job and continues to draw a salary. The state Attorney General’s office went to Superior Court to have Mack removed from office, and argues that Mack is in violation of a state law that says convicted officials are unable to serve in office.
But the federal judge who oversaw his trial will not remove Mack until his sentencing date, scheduled for May 14. If Mack had been found guilty in state court, he would have been removed immediately.
Jacobson will preside over the hearing today whether to allow Mack to remain in office. The Attorney General’s Office has also asked Jacobson to ban Mack from holding public office in the future and to take away his pension and benefits.
Although Mack asserted that his pension plan should not be taken away, Yomtov suggests that all of Mack’s pension falls under the purview of the state statute and is subject to forfeiture.
Mack has argued that being removed from office would constitute an “immediate forfeiture” of his position, which he contends is not allowed because his case was heard in federal court, which gives him the chance to fight an ouster.
But the prosecution contends that if Mack is removed today, no immediate forfeiture would have taken place because his conviction was 2½ weeks ago.
“Here, no immediate forfeiture has taken place,” Yomtov wrote. “Rather, this court granted defendant an order to show cause hearing which is being held several weeks after defendant had been found guilty in federal court.”
As to Mack’s argument that it is not deemed a “conviction” until the court enters a judgement at sentencing, Yomtov said the common understanding is a conviction happens at the time of a jury verdict or guilty plea. He said Mack might be confused by the concept that a defendant is not able to file a criminal appeal until a judgement of conviction is entered following sentencing.
The Attorney General’s Office contends that if the court allows Mack to remain in office until his sentencing May 14, all of his official actions would be invalid, retroactive to his conviction on Feb. 7 .
Mack has said he was unable to retain an attorney to assist him in the civil case of his removal from office, and has filed his response “pro se,” meaning he is representing himself. Mack’s nephew James Rolle, an attorney and school board member, said Monday night that he consulted with his uncle about filing his response with the court, but did not pen the document. When reached earlier this week, Mack declined to say if he would have any attorney’s assistance in the courtroom during the hearing today.
If Mack is removed by Jacobson today, City Council President George Muschal would be installed as acting mayor.
Muschal’s incoming status is acting mayor is already being recognized by officials and members of the community. That recognition extends as far as Police Director Ralph Rivera Jr, who has had an occasionally contentious relationship with Muschal. Rivera said despite their differences he is ready to acknowledge Muschal’s role as the city’s chief executive.
“I look forward to working with him,” Rivera said yesterday. “We agree on more than we disagree, that’s a fact.”
Rivera has had a chilly relationship with Mack, however, since being chosen by the mayor from a field of candidates winnowed down by the state Department of Community Affairs in April 2012. As a condition of taking millions of dollars in extraordinary state aid, Trenton’s mayor cannot fire a police director selected through the DCA without written permission from the state.
Rivera said that’s not going to be an issue, because he and Muschal reached an understanding last summer, when Muschal became council president.
“That’s time not well spent, fighting with each other,” Rivera said.
Muschal said he will spend today at home, waiting for City Clerk Rick Kachmar’s word from the courtroom. If Mack is removed effective immediately, Muschal said he will head to City Hall to be sworn in and take office.
Whether Muschal serves only 30 days or his term is extended by his colleagues until July 1, Rivera said it will be an improvement.
“I’m happy on the fact that, finally, the city is going to have stability, some stable leadership,” Rivera said.
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