With three candidates in the Nov. 7 election for city commissioner in Wildwood under state indictment and one of the three recently convicted in federal court, questions have been raised about what happens if they are elected, and also found guilty on the state charges.
Pete Byron, the city’s former mayor, Ernie Troiano Jr., another former mayor, and Steve Mikulski, a sitting commissioner, are each running for election to the three-person board of commissioners.
The three are charged together in a 12-count indictment accusing them of accepting health benefits the state says they weren’t entitled to while serving prior terms as elected officials. Each face charges of second-degree official misconduct, second-degree theft by unlawful taking, third-degree tampering with public records and fourth-degree falsifying or tampering with records.
Byron, Troiano and Mikulski have each pleaded not guilty to the charges.
In addition, in a separate case, Byron recently pleaded guilty in federal court to two felony tax fraud counts after admitting he failed to disclose or pay taxes on more than $40,000 in income over the tax years 2017 and 2018.
At his sentencing hearing, at which he received three years’ probation, the judge called Byron’s crimes “a serious offense.”
Byron’s Federal Conviction
There is confusion surrounding why Byron, who resigned as Wildwood’s mayor a little more than six weeks before Election Day, is staying in the race. It may have to do with a loophole in the state forfeiture statute that would restrict the attorney general’s ability to move for Byron to be ousted from office if he were elected to a new term.
Byron resigned just a day before representatives for the attorney general’s office were going to appear in front of a Superior Court judge to ask that Byron be removed from office by court order due to his federal conviction. Prior to his resignation, announced by the city in a press release Sept. 21, Byron had maintained he would not step down and would serve out the remainder of his term.
In acting to have Byron removed, the attorney general’s office cited a forfeiture of public office statute. The statute says that an order of forfeiture will include a permanent disqualification on holding public office or employment if the underlying offense touches or involves the convicted’s public position. Byron’s federal conviction for aiding and assisting in the preparation of false tax returns does not seem to fit the definition of a crime touching or involving his public office.
However, Byron’s federal conviction does fit another subsection of the forfeiture statute, which provides that public officials convicted of a crime of dishonesty can be forced to forfeit their public office. That forfeiture order stemming from a dishonesty crime would not include a lifetime ban on public office.
Another subsection the attorney general’s office argued applies to Byron – that the crime the public official is convicted of is equivalent to a third-degree crime or above in New Jersey – similarly doesn’t carry the lifetime disqualifier.
The attorney general’s office plans to move forward with a Dec. 6 hearing at which a judge is expected to sign the forfeiture order regarding Byron’s position as a Wildwood commissioner, a source in that office told the Herald. The purpose of the motion for the order has already been effectively achieved because of Byron’s resignation.
However, according to the source in the attorney general’s office, the order of forfeiture is tied to the time of the federal conviction. In other words, “you can’t pocket it,” the source told the Herald. The attorney general’s office is taking the position that it would not have grounds to move for an order of forfeiture to remove Byron from a future term based only on the federal conviction.
Even if Byron would be permanently disqualified as a result of the order of forfeiture, the deadline to print the official ballots was Sept. 4, according to Rita Rothberg, the county clerk. Byron didn’t resign his position until Sept. 21. The return date on the motion for forfeiture isn’t until Dec. 6. And on top of all of that, the order will not apply to Byron beyond this expiring term, because of the way the law is written.
It’s not as though Byron’s name will simply be on the ballot as a formality; he is actively running for the office he just resigned from. All 14 candidates, including Byron, appeared at a Meet the Candidates event hosted by the Greater Wildwood Chamber of Commerce Tuesday, Oct. 24. Byron did not comment on his state indictment or his federal conviction.
Byron did not respond to an inquiry from the Herald regarding this article.
Troiano, Mikulski and Byron’s State Indictment
Under state indictment along with Byron are Troiano and Mikulski, the commissioner who oversees the city’s public safety department.
Troiano and Mikulski have been campaigning together for the upcoming election. If they are successful but plead guilty or are convicted in the state health benefits case, they would be ineligible to continue to serve in public office under New Jersey law.
The same would go for Byron, who is part of a separate campaign. There is even a chance that the three could be elected together. Although different individuals are running as part of different teams, it is the top three individual vote-getters who are elected as the three commissioners.
If Mikulski and Troiano are elected together but found guilty, the lone remaining commissioner would not have the quorum necessary to appoint a replacement commissioner or even conduct basic city business, like paying bills and approving contracts. Municipal business would basically be brought to a standstill, until replacement commissioners were appointed by the governor.
Steve O’Connor, the administrator for the city, told the Herald that “the essential business, not the services, would shut down” as a result of such a scenario.
If Byron were elected with Troiano and Mikulski, and each were found guilty of the charges they are facing in state court, then all three would be removed and the governor would get to install a full panel of commissioners he chooses.
O’Connor said he couldn’t comment confidently on the implications of all these scenarios.
“We just don’t have the legal expertise or any experience in this extraordinarily unique situation,” the administrator said, going on to call the different implications of the situation “perhaps a once-in-a-lifetime scenario.”
Louis A. DeLollis, Wildwood’s city solicitor, did not respond to an inquiry from the Herald asking how the three candidates’ criminal charges would impact the term they are running for and how they would be replaced if disqualified.
Troiano is scheduled to appear in court Friday, Nov. 17, for a hearing on a motion to dismiss the indictment against him. Mikulski and Byron are set to appear for a status conference in front of the judge Friday, Jan. 19.
Contact the author, Shay Roddy, at sroddy@cmcherald.com or 609-886-8600, ext. 142.
