Mayor’s Role Quizzed

CAPE MAY – When Wister Dougherty took the podium at the April 16 Cape May City Council meeting, it was expected that he would address the issue of council’s action not to appoint him chair of the Advisory Committee on the Public Safety Building. 
Analysis
Dougherty served as vice-chair and, in his own words, “was hoping to be elevated to chairman.” He went on to praise the talents of Kate Wyatt who was appointed the chair.
Dougherty had another message for the council, one that derived from his long-ago service on the Charter Study Commission that issued its report in 2003, a report that led to a change in the municipality’s form of government.
Dougherty’s concern was that the city was “drifting away from the council-manager form of government,” one in which all council members “even the mayor” are equal (see more on forms of municipal government in New Jersey here).
Dougherty’s remarks were no attack on Mayor Clarence Lear. They were more an expression of a concern that it is all too easy in Cape May for the ceremonial position of mayor to acquire powers that should be exercised by the city manager or properly shared across the five-member council.
Council member Shaine Meier praised Lear for his diligence in “reverting powers back to the city manager,” arguing that Lear “understands the Faulkner Act” and the role of the mayor under the city’s form of government.
When Dougherty raised the issue of “drifting” away from the council-manager form, he joined a long list of individuals who have raised concerns of mayoral overreach for years in the city.
Dougherty made his statement because he saw repeated complaints from the two newest members of council – Zack Mullock and Stacey Sheehan – that they felt left out of decisions and uninformed until the last minute about items that appeared on the council’s agenda.
It is a complaint, Dougherty said, he heard from two previous members of council, Bea Pessagno and Roger Furlin.
For Dougherty, the fact that the same complaint came from different individuals in two different council years meant something was wrong, intentionally or unintentionally, with the communication among equal members of council, communications that are facilitated by the mayor as the individual who presides over council meetings.
From Dougherty, his words came more as a warning than an accusation. Others in Cape May have not been so kind when commenting on possible mayoral overreach. 
Claims of Mayoral Overreach
Claims of mayoral overreach were frequently aired during the last years of Edward Mahaney’s tenure as mayor.
Mahaney was the city’s first mayor after a change in form of government in 1995 when the city adopted a small municipality plan, one of the Faulkner Act options.
Mahaney was later elected mayor in 2008 and again in 2012, after the change back to a council-manager plan. He lost the 2016 election to Lear.   
Mahaney, seen by supporters as an effective administrator who worked tirelessly to assure that city goals were met, began each year with a detailed review of the previous year and an agenda for the coming one. His State of the City addresses were long, involved and detailed.
Opponents repeatedly accused Mahaney of taking powers that belonged to the city manager or more broadly to council as a whole.
Violations of the Faulkner Act were one of the charges leveled at Mahaney during a failed attempt to recall him in 2015, an attempt led by current Deputy Mayor Patricia Hendricks’ husband, Charles Hendricks. Patricia Hendricks leveled claims of mayoral overreach at Mahaney as part of her campaign for office in 2016.
Mahaney denied “overstepping my bounds,” referencing state statutes and the city administrative code where he argued the mayor defined duties not addressed by the Faulkner Act.
Following Lear’s victory over Mahaney in the November 2016 election, Lear presided over a council that included newly elected Hendricks, along with Pessagno, Furlin, and Meier, each of whom had been on the previous council chaired by Mahaney.
A failed attempt at designating a city block from Ocean Street to Franklin Street and from Lafayette Street to Washington Street as a redevelopment zone became entangled in accusations of secret plans and favoritism for a specific developer who, opponents believed, wanted to erect a modern multi-story parking garage in the heart of the historic district.
The debacle raised transparency issues and put on display a split on council that remained up to the next elections.
Furlin and Pessagno frequently voiced concerns that Lear was making decisions without conferring with them. This claim was especially common when the two voted in opposition to the mayor on appointments or changes in committees and commissions.
More than once, Pessagno put her objections in the form of accusations of Faulkner Act violations by Lear.
Lear pointed to the fact that the full council votes on any appointments, but the issue persisted.
Following the next set of elections in 2018, council no longer had Furlin or Pessagno, neither of whom ran for reelection. New council members, Mullock and Sheehan, took their seats.  The issue did not disappear.
The two new council members appeared to make the same claims about lack of involvement in decisions to appoint individuals to committees or commissions or to devote time to fully discuss development plans for city property, or to foster appropriate discussion of items that appear on agendas just days before council meetings.
Supporters of the mayor and the council majority argue that there is every opportunity for all council members to stay fully involved.
Meier countered Dougherty’s concerns. He said that no mayor better understands the Faulkner Act than Lear. 
Lear commented at a recent council meeting that the agenda formulation and release has been the same way for years. He changed nothing. 
These procedures date to years in which claims of mayoral overreach persisted before Lear took office, claims made against Mahaney by individuals who are among Lear’s strongest supporters today.
Pessagno’s comments accused Lear of intentionally grabbing power that did not belong only to the mayor. Mullock and Sheehan don’t level accusations as much as they voice frustration with their lack of involvement in appointments that then appear on agendas where they know in advance they will lose any vote to alter them.
In Mahaney’s often stated view, the charges of mayoral overreach were overblown. He saw himself acting in accordance with the city’s code and the responsibilities given to the mayor in state statutes. 
Lear said he is mystified by claims that he has overstepped his powers. He sees himself as an individual who has worked diligently to return powers to the city manager and who seeks to have appointment power for committees and commissions rest with the whole council and not the mayor. 
His detractors argue that once Lear has a firm hold on three council votes, he does not work hard at involving others on the council who may have different opinions.
The theme is the same. What is the proper role of the Mayor when that individual sits as a co-equal member of the legislative arm of city government with little or no executive power?
What Dougherty was suggesting in his remarks was that council should discuss that issue. He asked that all council members read the commission report from 2003. 
Cape May’s Form of Government
On July 1, 2004, Cape May adopted the council-manager form of government following the recommendations of a Charter Study Commission on which Dougherty served.  
This change was not without litigation. The voters approved of the switch at the 2004 May municipal elections by two votes, 422 to 420.
One group of voters filed a legal action asking the court to set aside the results. They claimed that the language used in the referendum was unclear.
The new form of government became effective in July 2004 and the council-manager form is still the one in place in the city. Of the 42 municipalities that use this form in the state, Cape May is the third smallest. The average population of entities using this form is 23,000, significantly higher than Cape May.
The city has shifted its form of government twice in a period of less than 25 years. It did so in 1995, when it adopted a small municipality plan and again in 2004 when it returned to the council-manager plan. 
The changes have left remnants of previous forms in the municipal code. Lear and City Solicitor Frank Corrado stated that the city is methodically moving through the code in an attempt to better synch the stated duties and responsibilities of the mayor with the form of government in which the mayor is a co-equal member of council and has no executive authority. 
Overreach in the Eyes of the Beholder?
Large issues loom for Cape May. The city must figure out how to finance new public buildings, like a Public Safety Complex. It must decide if there is a beneficial use of redevelopment authority that the city can embrace.
Similar issues exist ranging from finding solutions to a seemly intractable parking problem to engaging in beach replenishment in ways that do not imperil beach safety.
Lear’s approach to many of these problems has been community involvement. Using an array of advisory committees, Lear hopes to find pathways that both address the problems and offer community support for the efforts.
Readers may wish to view the Department of Community Affairs’ briefing document on the forms of government, available under the Faulkner Act. While the cover sheet states that it is current through 2017, no major changes in that law have occurred since then. The document is available in PDF format here.
To contact Vince Conti, email vconti@cmcherald.com.