WILDWOOD — At the Wednesday, Feb. 24 Wildwood Commissioners meeting, Mayor Gary DeMarzo did not answer the question of whether he would choose his mayoral position or his police officer job after an appeals court decided recently that he must make the choice.
The only time the subject was discussed was when he was asked during the public comment portion of the meeting.
“We’ll find out in 17 days,” DeMarzo said, acknowledging the court’s 20-day time limit for him to choose.
“I am the mayor this evening,” he added, suggesting he was ready to take further questions.
The following story was published after the appellate decision was released:
WILDWOOD — Commissioner or police officer? That’s the decision Wildwood Mayor Gary DeMarzo must make.
On Monday, Feb. 22, a state Appeals Court overturned two lower court decisions that had allowed DeMarzo to perform his mayoral duties while on an unpaid leave of absence from the Wildwood Police Department. The three-judge appellate panel gave the mayor 20 days from that date to make up his mind.
DeMarzo did not return this newspaper’s call for comment.
DeMarzo was hired in February 1998 as a full-time police officer. He’s been on unpaid leave since being elected to City Commission in May 2007.
The trial court case decided by Superior Court Judge Joseph Visalli (now retired) and upheld by Judge Valerie Armstrong allowed DeMarzo to remain on unpaid leave as long as he, as a commissioner, recused himself from voting on matters related to the police department on a case-by-case basis.
The judges ordered that Wildwood’s municipal solicitor and clerk should meet prior to every meeting of the governing body in order to review the agenda of the meeting to determine which items constituted a conflict for DeMarzo, and must be voted upon separately by the two remaining commission members.
Visalli and Armstrong relied on a state statute that reads: “Any person holding a position in the career service of any political subdivision shall upon written request be granted a leave of absence, without pay, to fill any elective public office for the term of the office.”
The city appealed the trial court’s decision, arguing that the restraints on DeMarzo’s conduct do not adequately address the inherent conflicts arising from the incompatibility of the two offices.
“We agree with the City’s position and reverse,” the appellate judges wrote.
In reversing, the court cited Wildwood’s commissioner form of government created under the Walsh Act that bestows upon commissioners “all the executive, administrative, judicial and legislative powers and duties heretofore had and exercised by the mayor and city council and all other executive or legislative bodies in such municipality, and shall have complete control over the affairs of such municipality.”
“A commissioner is thus: (1) a legislator when he or she proposes and votes on municipal legislation; (2) an executive when he or she hires and supervises the staff who perform the day-to-day operations of the department assigned to him or hereby the board; and (3) a quasi-judicial officer when the board sits as an administrative tribunal to adjudicate disputes arising from disciplinary matters, violations of municipal licenses, and other similar matters,” the decision stated.
With commissioners so powerful, and the police department so intertwined in Wildwood’s government, the positions are incompatible, the court ruled.
“The (lower) court’s attempts at counteracting the myriad of conflicts arising from such incompatibility by restricting DeMarzo’s conduct as a city commissioner impermissibly limited the statutory authority conferred upon such office by the Legislature under the Walsh Act, and deprived the citizens of Wildwood of an independent City Commissioner capable of managing the municipality’s business unfettered by personal conflicts arising from his position as a police officer,” the decision stated.
The court pointed out that requiring the clerk and solicitor to meet before every board meeting to determine whether any item on the board’s agenda may mandate DeMarzo’s recusal was “utterly unworkable as a practical matter.”
The court noted that other conflicts had occurred, specifically when, as the commissioner in charge of revenue and finance, DeMarzo ran into situations in which he dealt with city-wide salaries, and thus police department salaries.
“This is the precise evil the doctrine of incompatibility is intended to avoid,” the appeals court stated.
“When such a statutory conflict of duties exists, it is not enough . . . for the officeholder to disqualify himself when the conflict arises or to decline to act in the areas conflict. The doctrine was designed to avoid the necessity for such an option, and the admitted need for such inaction is the most compelling proof that an incompatibility exists.”
“We thus conclude that the interests of justice will be served by permitting DeMarzo to choose which position he wants to retain. Having said this, we are equally convinced that it is in the best interests of the citizens of Wildwood to have this matter settled expeditiously,” the judgment stated.
Hence the 20-day time frame for DeMarzo’s decision. He shall “communicate his choice in writing directly to the board of commissioners within the specified timeframe,” the decision stated.
The decision has significant financial repercussions for DeMarzo, who, according to city records, earned over $70,000 annually as a police officer and just over $20,000 per year as a commissioner.
In addition, DeMarzo has a history of litigation with the city.
In 2005, DeMarzo filed two suits against the City. The first suit was directed against Wildwood and other residents who were not affiliated or employed by the city. The second suit named the city, the three commissioners sitting at the time, and a number of other appointed officials.
On Monday at about 5 p.m., DeMarzo issued the following statement:
“I have not had an opportunity to review the opinion. As one could imagine, there is so much involved in making a decision this monumental. Without having an understanding of the possible outcomes and ramifications, it would be unfair to give any thoughts to the community until I fully digest the ruling. After I confer with counsel and I am able to comfortably and intelligently respond, I can assure you that I will be glad to speak freely about the issue.”
Contact Hart at (609) 886-8600 Ext 35 or at: jhart@cmcherald.com
Lower Township – Who are these people that are obvious experts on trash cans and leaf pick-up? Maybe they don't have any trash to put out or leaves in their yard!!
