A New Jersey appeals court ruled Thursday that it was improper for a city police officer in Wildwood to hold elected office at the same time.
It was also wrong for Gary DeMarzo to get himself laid off from the force in order to resolve the conflict and to then put himself on a special first-to-be-rehired list should he lose his elected office, the court said.
Appellate Division Judges Victor Ashrafi and Margaret Hayden upheld Superior Court Judge Valerie Armstrong's order from May 26, 2010, requiring him to immediately decide whether he wanted to remain an elected official or a police officer.
"Vacate means vacate," says Colin Bell, a lawyer representing another Wildwood police officer, Lt. Richard Adair, who has been seeking to enforce the prohibition on holding two positions.
"This puts up another roadblock to public employees attempting to hold dual and incompatible offices," says the city's attorney, Clifton solo Matthew Priore.
There is no specific statute that prohibits a public employee from being an elected official in the same town, says Priore. Rather, the practice is barred by a series of court rulings going back to Jones v. McDonald, 33 N.J. 132 (1960).
"Every so often you have a public employee who gets elected to office and then you have to spend taxpayer money to have that ruled improper," Priore says.
"[P]ublic policy demands that an office holder discharge his duties with undivided loyalty," the Supreme Court said in Jones while invoking the doctrine of incompatibility.
The Appellate Division has twice said DeMarzo cannot hold both positions, although at this point the ruling may be moot.
DeMarzo first was elected as a city commissioner in 2007, and city officials filed a lawsuit demanding that he choose between being a patrolman and being a commissioner. A judge first enjoined him from participating in any areas that created a conflict of interest. In Wildwood v. DeMarzo, 412 N.J. Super. 105 (App. Div. 2010), the appeals court said that was insufficient and gave him 20 days to resign from one of his positions.
DeMarzo appealed to the Supreme Court. While that appeal was pending, DeMarzo was elected mayor. He attempted to resolve his situation by putting himself on a voluntary layoff list. At that same time, however, he also placed himself on a list of those laid-off officers that would be rehired first if the city's financial situation improved.
Adair then filed his lawsuit, seeking to have the 2010 Appellate Division order enforced.
"Every day that goes by without this situation being completely cured is contrary to the public interest," Armstrong said. She gave DeMarzo until the end of that day to decide what position he was going to give up. He resigned his position as a police officer, and filed the appeal decided on Thursday, still hoping to retain his spot on the "special reemployment" list.
As the most senior officer on the list, he would be the first person eligible to be rehired, Ashrafi and Hayden said.
"Such an arrangement continues the incompatibility that led to our order in the first instance," they said in Adair v. Wildwood, A-2911-11. "Whether on an unpaid leave of absence or as a first-in-line on the special reemployment list, DeMarzo's persistent involvement with the police force continued to deprive the citizens of Wildwood of 'an independent City Commissioner capable of managing the municipality's business unfettered by personal conflicts,'" they added, quoting their 2010 ruling.
"Had [DeMarzo] prevailed, he might have had a chance to get his job back," says Bell, of Atlantic City's Hankin Sandman & Palladino. "That's the import of this ruling."
DeMarzo currently is involved in litigation against Cape May County Prosecutor Robert Taylor. The lawsuit claims he was the victim of malicious prosecution. In 2011, a grand jury indicted DeMarzo on charges of official misconduct for allegedly using city funds to pay his legal fees. Cape May County Superior Court Judge Albert Garofolo ordered those charges dismissed.
After he was indicted, he lost his bid for re-election.
DeMarzo's attorney, Paul Kleinbaum, of Newark's Zazzali, Fagella, Nowak, Kleinbaum & Friedman, did not return a call.