Gary DeMarzo: Mayor or Commissioner?

TRENTON–If you are a fan of soap operas you are going to love the story behind the New Jersey Court of Appeals ruling handed down on Sept. 5.
The justices echoed the Bible maxim that ‘you cannot serve two masters’ when it affirmed a May 26, 2010 Law Division order. The order required former Mayor Gary DeMarzo to choose between his career as a police officer or as a member of the Wildwood City Commission.
The saga began in 2007 when DeMarzo, a serving police officer was elected Commissioner. He was sworn into office while on an unpaid leave of absence from the force. Despite that, the City of Wildwood sued him under the Common Law doctrine of Incompatibility. The doctrine does not mean DeMarzo was ‘incompatible’ just that the two positions were. Wildwood’s assertion was that DeMarzo had an inherent conflict of interest by holding the two positions simultaneously. The city said that since Commissioner DeMarzo would be acting as “legislator, executive and quasi judge” over departments he would direct, some involving the police department, he could not act impartially.
At trial the judge agreed that the Doctrine of Incompatibility did forbid the holding of dual positions. Instead of forcing a resignation, however, the court issued a series of orders restricting DeMarzo’s actions as Commissioner. It was an attempt to set up barriers to prevent conflicts. Unsatisfied Wildwood appealed.
The Appeals Court stated “office holders must not have divided loyalties.” It reversed the orders issued by the trial court. DeMarzo then had 20 days, from Feb. 22, 2010 to choose between being Officer DeMarzo or Commissioner DeMarzo.
Meanwhile, back at City Hall, the Mayor and a Commissioner were recalled. DeMarzo and two political allies were elected in their place. Next Commissioner DeMarzo became Mayor DeMarzo. He was still on the police force. On March 9 the mayor wrote to the police department and asked to be one of the officers the city was planning to lay off due to budget cuts. He was still within the twenty days.
On April 12, 2010 the Civil Service Commission approved the layoffs and DeMarzo’s request. Next, Wildwood’s personnel director in writing advised Mayor DeMarzo that Police Officer DeMarzo would be laid off effective June 21, 2010.
This was well beyond the 20 days set by the Court.
Wildwood resident and police department Lieutenant Richard Adair found this unacceptable. He sued the City of Wildwood and Gary DeMarzo. He wanted the Court to compel DeMarzo to choose right away and the layoff did not make any difference to him. DeMarzo said there was no real difference between a layoff and a resignation.
Judge Valerie Armstrong heard the case. She ruled that the mayor “had taken liberties with the (Appellate) Court.” 20 days meant 20 days not three months, she said. Further “every day that goes by without this situation being completely cured is contrary to the public interest.” She ordered him to make a choice and put it in writing immediately. If not she would make the choice for him.
That day Mayor DeMarzo resigned from the police department and appealed.
In his appeal he said Adair did not have “standing.” That means legally it was none of his business. The court disagreed. It stated that as a citizen and a taxpayer of Wildwood, Adair, had the “right to unbiased elected officials.” Adair, the Court stated was only seeking to have an order enforced and Wildwood was not doing it. Therefore as a citizen he did have a right to sue for enforcement of a court order.
The Court also pointed out that DeMarzo’s actions avoided a “straight forward court order.”
The judges cited the volunteering for layoff and “DeMarzo’s persistent involvement with the police force,” as examples. The court discounted that DeMarzo was no longer mayor. Now Gary DeMarzo is once again just Citizen DeMarzo and there is no conflict of interest in that.