By a 4-1 vote, the Bradley Beach Borough Council has deleted part of a borough ordinance which had allowed the mayor to make temporary appointments and continue to appoint the same person or persons indefinitely every 90 days.
Council members Jane DeNoble, Al Gubitosi, Kristin Mahoney and John Weber voted to approve the change, while Mayor Larry Fox cast the lone vote against it.
Following the vote, the mayor told The Coaster, “I am assessing my options, but the council is leaving me little choice at this time.”
The mayor and council members have been at odds for some time over appointment issues.
By a 3-1 vote on Sept. 13, the council rejected Fox’s nomination of former councilwoman Meredith DeMarco as borough administrator.
Under the provisions of the now-deleted section of the borough code, Fox named DeMarco as acting borough administrator for a 90-day period effective Oct. 1.
“This is an offer to appoint you to the position of acting borough administrator,” Fox said in an Oct. 1 memo to DeMarco. “This is a 90-day appointment that will be renewed. You would be appointed at the annual salary rate of $110,000 per year. Vacation [and] benefits will follow borough policy.”
The memo was signed by both Fox and DeMarco, whose temporary appointment ends on New Year’s Eve under the provisions of the borough ordinance which was in effect at the time.
Earlier this year Fox sued the council in state Superior Court saying council members tried to usurp powers granted to him by state law under the so-called “strong mayor” form of government.
Judge Richard W. English invalidated the appointments of four professionals made in May by the council after it rejected candidates proposed by Fox, who did not present alternatives which the council might find acceptable.
At the same time, the judge upheld the council’s powers of advice and consent in accordance with the Faulkner Act, a state law which details forms of local government.
The mayor suggested that the council’s vote to change the borough ordinance on temporary appointments could still be addressed by the judge.
“The case that we had back in August that was ruled on is still open,” Fox said. “It has not been closed.”
“I would suggest we jointly seek judicial intervention to advise on whether this action is consistent with our form of government, the Faulkner Act,” the mayor said in a memo to council members a week before the temporary appointments section was repealed.
“It would seem [the council] is not interested in collaborating to get to an amicable resolution in that they rejected my request, against the advice of the municipal attorney,” Fox told The Coaster after the ordinance was approved.
“When a mayor attempts to avoid the checks and balances that are built into our laws, he has moved beyond ‘strong’ and toward dictator,” Gubitosi said. “The mayor knew that the council did not support his candidate, and he also knew that he needed the council’s consent under the law. So, the mayor used the borough’s own ordinances — not the Faulkner Act – to temporarily appoint an acting officer for up to 90 days.”
In response to a question from a resident at the council’s most recent meeting, Borough Attorney Greg Cannon confirmed that the provision for a temporary appointment was not part of the Faulkner Act.
“It’s not required by the Faulkner Act,” Cannon said. “There’s not a legal reason in the Faulkner Act why you couldn’t repeal the temporary appointment power, that I can find.”
Fox said the council’s repeal of the temporary appointment section of the ordinance displayed “zero consideration around continuity of government.”
“It creates an adverse employment action that affects the council’s standing, potentially,” the mayor said. “I think we’re putting the borough at legal risk. I wish that we could have worked through this in a more collaborative way but that doesn’t look like it’s going to happen.”
“The Faulkner Act burdens the mayor and council with acting cooperatively for the benefit of the municipality’s residents,” Mahoney said.
She said she voted for repeal “since the mayor did not intend to get the council’s advice or consent to extend the 90-day appointment.”
“This is not about our acting borough administrator,” Weber said. “A lot of people think it is, but it is not. It is about the mayor and his abuse of a loophole to make temporary appointments.”
“This unintended application of the borough’s ordinance temporarily appointing the same person indefinitely creates a full-time, permanent appointment with benefits,” Gubitosi said.
“For the Borough Council to have their statutorily established advice and consent stripped from us is just not productive,” DeNoble said.
The next scheduled meeting of the council is the reorganization session on Wed., Jan. 10.