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McCann v. Clerk of the City of Jersey City

June 01, 2001


On certification to the Superior Court, Appellate Division, whose opinion is reported at ___ N.J. Super. ___ (2001).

The opinion of the court was delivered by: Stein, J.

Argued telephonically April 5, 2001

Decided April 5, 2001

Petitioner Gerald McCann applied to be a candidate for the office of Mayor of the City of Jersey City, a Faulkner Act municipality, in the May 8, 2001 non-partisan election. The Clerk of Jersey City refused to process McCann's petition on the ground that his candidacy was barred by the disqualification provisions of the Criminal Code, N.J.S.A. 2C:51-2d, and the Faulkner Act, N.J.S.A. 40:69A-166. McCann brought suit, and the Law Division ordered the Clerk to include McCann on the ballot. The Appellate Division reversed, and we affirmed the Appellate Division in an order dated April 5, 2001. This opinion is issued pursuant to that order.


McCann is a former Mayor of Jersey City, having served in that office from 1982-1986 and 1990-1992. In December 1991, during his second administration, McCann was convicted in the United States District Court for the District of New Jersey on fifteen counts of an indictment including charges of mail fraud, wire fraud, false statements to a bank, false statements to the Internal Revenue Service (IRS), income tax evasion and failure to file a tax return. For purposes of this review, we assume that none of the events giving rise to those convictions occurred while McCann was in public office.*fn1

As a result of his convictions, McCann was required to forfeit his office pursuant to N.J.S.A. 2C:51-2a(1), which provides for the forfeiture of any public office in this State on conviction of an offense involving dishonesty or a crime of the third-degree or above, or the conviction of an equivalent offense under federal law.

The federal court sentenced McCann in June 1992 to a term of thirty-three months imprisonment followed by a three-year period of supervised release. In February 1997, while on supervised release, McCann announced his intention to run for Mayor of Jersey City in the 1997 election. However, because he was disqualified from voting while serving his federal sentence, the Chancery Division and Appellate Division held that he was barred from running. McCann v. Superintendent of Elections, 303 N.J. Super. 371 (Ch. Div.), aff'd, 303 N.J. Super. 352 (App. Div.), certif. denied, 149 N.J. 139 (1997).

After completing his sentence, and with his voting rights restored, McCann again sought to run for Mayor of Jersey City, filing a petition in February 2001 with the City Clerk for the May 8, 2001 election. Based on advice from Jersey City's Corporation Counsel, the Clerk refused to process McCann's petition because his 1991 convictions disqualified him from the office of Mayor under the disqualification provisions of the Criminal Code, N.J.S.A. 2C:51-2d, and the Faulkner Act, N.J.S.A. 40:69A-166. The Criminal Code disqualifies from public office "any person convicted of an offense involving or touching on his public office, position or employment." N.J.S.A. 2C:51-2d. The Faulkner Act prohibits "[a]ny person convicted of a crime or offense involving moral turpitude [from assuming] any municipal office, position or employment in a municipality governed pursuant to this act." N.J.S.A. 40:69A-166.

McCann filed a complaint in the Law Division seeking a declaratory judgment that he was eligible to run for office. The Law Division rejected both of the City Clerk's arguments for disqualifying McCann and ordered the Clerk to process McCann's petition. The court held that the forfeiture statute in the Criminal Code did not apply to McCann's offenses because those offenses occurred while McCann was in the private sector. With respect to the Faulkner Act, the court acknowledged that the disqualification provision contained in the Faulkner Act would bar McCann's candidacy if it was enforceable but, relying on Matthews v. Atlantic City, 84 N.J. 153 (1980), held that the provision deprived McCann of his constitutional right to equal protection because it subjects candidates for mayor in Faulkner Act municipalities to stricter eligibility requirements than those that apply in non-Faulkner Act municipalities, without any rational basis for the distinction.

The Appellate Division reversed. ___ N.J. Super. ___ (App. Div. 2001). With respect to the forfeiture statute, the Appellate Division acknowledged that no prior cases addressed the specific question presented by McCann - whether the statute applied to crimes that occurred while the candidate was not in office. However, the court cited language from related cases "indicat[ing] that such conduct may indeed warrant a person being forever barred from public employment," id. at ___ (slip op. at 8), and concluded that "the Forfeiture Statute was intended to preclude anyone who violated the public trust from obtaining a second opportunity to do so." Id. at ___ (slip op. at 10). The court also rejected the Law Division's conclusion that the Faulkner Act disqualification provision was unconstitutional. Relying in large part on the legislative history of the Act, the court observed that the Act "intended to confer the greatest possible power of self-government, consistent with the New Jersey Constitution, upon municipalities adopting a plan pursuant to the Act." Id. at ___ (slip op. at 22) (citing City of Newark v. Dep't of Civil Serv., 68 N.J. Super. 416, 424 (App. Div. 1961)). "Given the broad, unprecedented sweep of powers the Legislature ultimately put in the hands of mayors and other elected officials in these newly configured municipalities," the court noted, "it is not unexpected that it also sought to regulate those who would exercise those powers." Id. at ___ (slip op. at 28). The court concluded that the disqualification provision was reasonable, and therefore constitutional, "given the broad scope of power vested in the mayor and other elected officials of those municipalities." Id. at ___ (slip op. at 29-30).

We granted McCann's petition for certification and motion for acceleration, and heard oral argument by telephone on April 5, 2001. Later that day, we issued an order affirming the judgment of the Appellate Division and vacating the stay of the printing of affected election ballots. This opinion is issued to supplement our April 5, 2001 order.


We address first whether McCann's candidacy is barred by the forfeiture statute in the Criminal Code, N.J.S.A. 2C:51-2. That statute provides in relevant part:

a. A person holding any public office, position, or employment, elective or appointive, under the government of this State or any agency or political subdivision thereof, who is convicted of an offense shall forfeit such office or position if:

(1) He is convicted under the laws of this State of an offense involving dishonesty or of a crime of the third degree or above or under the laws of another state or of the United States of an offense of a crime which, if committed in this State, would be such an offense or crime;

(2) He is convicted of an offense involving or touching such office, position or employment; or

(3) The Constitution of a statute other than the code so provides.

d. In addition to the punishment prescribed for the offense, and the forfeiture set forth in subsection a. of N.J.S. 2C:51-2, any person convicted of an offense involving or touching on his public office, position or employment shall be forever disqualified from holding any office or position of honor, trust or profit under this State or any of its administrative or political subdivisions. [N.J.S.A. 2C:51-2 (emphasis added).]

As noted, McCann was ordered in 1992 to forfeit his position as Mayor of Jersey City pursuant to N.J.S.A. 2C:51-2a because he was convicted of crimes involving dishonesty or of the third-degree or higher while he was in office. The first question for our review is whether McCann's convictions for offenses committed while McCann was not serving as Mayor "involv[ed] or touch[ed] on his public office, position, or employment." N.J.S.A. 2C:51-2d. If so, he "shall be forever disqualified" from holding any public office in this State. Ibid. The question is one of first impression.

Our overriding objective in determining the meaning of a statute is to "effectuate the legislative intent in light of the language used and the objects sought to be achieved." State v. Hoffman, 149 N.J. 564, 578 (1997). "Ordinarily, the language of the statute is the surest indicator of the Legislature's intent," Cornblatt v. Barrow, 153 N.J. 218, 231 (1998), and if the statutory language "?clearly reveals the meaning of the statute, the court's sole function is to enforce the statute in accordance with those terms.'" Sasco 1997 NI, LLC v. Zudkewich, 166 N.J. 579, 586 (2001) (quoting New Jersey Dep't of Law & Pub. Safety v. Bigham, 119 N.J. 646, 651 (1990)). "In addition to the provision in question, we also consider the overall legislative scheme. ?Our task is to harmonize the individual sections and read the statute in the way that is most consistent with the overall legislative intent.'" Ibid. (quoting Fiore v. Consol. Freightways, 140 N.J. 452, 466 (1995)).

The language of N.J.S.A. 2C:51-2d, considered in the context of the entire statute, suggests that a conviction does not "involve[]" or "touch[] upon" a public office unless the facts underlying the conviction bear some direct relationship to an office held by the individual. Subsection (a) of the statute, which specifies the circumstances under which a person currently holding public office must surrender that position, sets forth two separate standards. Subsection (a)(1) requires forfeiture where the office holder is convicted "of an offense involving dishonesty or of a crime of the third degree or above." N.J.S.A. 2C:51-2a(1). Subsection (a)(2) requires forfeiture where the office-holder "is convicted of an offense involving or touching such office, position or employment." N.J.S.A. 2C:51-2a(2). The latter standard, but not the former, is duplicated in subsection (d).

That the Legislature included two distinct standards for forfeiture of office demonstrates that a substantive distinction must exist between crimes merely "involving dishonesty" and those "involving or touching on" an office. The Appellate Division determined that McCann's convictions were for offenses "involving or touching on" his office as Mayor of Jersey City because the offenses "demonstrate his untrustworthiness and disrespect for government agencies." ___ N.J. Super. at ___ (slip op. at 15). In our view, the Appellate Division's construction is too broad because it renders the subsection (a)(1) standard superfluous - any crime "involving dishonesty or . . . of the third degree or above," N.J.S.A. 2C:51-2a(1), would also, presumably, demonstrate "untrustworthiness and disrespect for government agencies." "It is a cardinal rule of statutory construction that full effect should be given, if possible, to every word of a statute. We cannot assume that the Legislature used meaningless language." Gabin v. Skyline Cabana Club, 54 N.J. 550, 555 (1969).

The operative distinction between the "involving dishonesty" and "involving or touching on" standards can be found in the Legislature's decision to limit permanent disqualification from office only to those persons "convicted of an offense involving or touching on his public office." N.J.S.A. 2C:51-2(d) (emphasis added). That phrase implies, in our view, a determination on the part of the Legislature to limit the scope of the disqualification provision to crimes that are related directly to an individual's performance in, or circumstances flowing from, a specific public office or position held by that individual. When an individual commits a crime wholly unrelated to his or her public office, the crime ordinarily cannot be characterized as involving or touching on the public office.

As noted, the Law Division found that the conduct relating to McCann's convictions took place while he was in the private sector, and there is no indication that the offenses bore any direct relationship to his responsibilities as Mayor of Jersey City between 1982-1986 and 1990-1992. The only argument proffered is that McCann violated the public trust when he committed his offenses, and that the magnitude of his abuse of the public trust necessarily bears on the responsibilities of a mayor. We do not dispute that McCann's conduct reveals qualities that are relevant to his fitness for the office of Mayor. However, our inquiry under subsection (d) is limited to determining whether McCann's offenses touched upon either of his specific tenures as Mayor of Jersey City, and there is no indication in the record that any direct relationship exists between the offenses and his mayoral responsibilities. We therefore conclude that McCann is not subject to disqualification under N.J.S.A. 2C:51-2d.

The Appellate Division relied heavily on Moore v. Youth Correctional Institute, 119 N.J. 256 (1990), but we find that case distinguishable. Moore involved a corrections officer who, after being disciplined for harassing prison inmates, placed threatening telephone calls to the officer who prosecuted him at the disciplinary hearings and visited that officer's home on several occasions, at one point parking his car on the officer's lawn and racing his motor. Id. at 261. The narrow question in Moore was whether conduct committed during non-business hours and off the premises of the correctional facility at which Moore was employed could be considered to involve or touch on his employment for purposes of forfeiture. Id. at 269. In determining that it could, we noted that "[w]hen the infraction cases a shadow over the employee as to make his or her continued service appear incompatible with the traits of trustworthiness, honesty, and obedience to law and order, then forfeiture is appropriate." Id. at 270. Read in exclusion, that statement could be understood to support the Appellate Division's construction of subsection (d). However, the language of Moore should be understood in the context of the facts critical to our disposition, and it was undisputed that the petitioner's harassment of his co-employee in Moore bore a direct and substantial relationship to their respective governmental positions.

Likewise, the other principal decisions relied on by the Appellate Division, State v. Botti, 189 N.J. Super. 127 (Law Div. 1983) and State v. Musto, 187 N.J. Super. 264 (Law Div. 1982), aff'd o.b., 188 N.J. Super. 106 (App. Div. 1983), are not inconsistent with our disposition. Botti, like the present case, involved a mayor who was convicted of mail fraud and tax evasion, but the offending conduct occurred prior to his assuming office. However, Botti held that forfeiture was warranted under subsection (a)(1) of the forfeiture statute because Botti was convicted of a crime "involving dishonesty"; the court specifically did not resolve the question whether the individual's conduct involved or touched on his office for purposes of subsections (a)(2) or (d). Botti, supra, 189 N.J. Super. at 132. Similarly, Musto involved a state senator and mayor who was convicted of various federal offenses, including mail fraud and tax fraud. Musto, supra, 187 N.J. Super. at 269. However, the conduct underlying those offenses occurred while Musto was in public office, and the Musto court's analysis was limited to determining whether Musto's offenses would have resulted in convictions under state law for purposes of N.J.S.A. 2C:51-2a(1), id. at 271-82, and whether the forfeiture statute was constitutional. Id. at 282-320. The question whether the offenses in Musto involved or touched on Musto's public offices was not implicated in the court's review.

Without question, McCann's crimes "involve dishonesty" for purposes of the forfeiture statute and properly resulted in his forfeiture of the office of Mayor of Jersey City in 1992. However, the standard for permanent disqualification is a higher one, and on the record before us we conclude that N.J.S.A. 2C:51- 2d does not mandate McCann's permanent disqualification from public office in this State.*fn2


Nevertheless, we conclude that the disqualification provision of the Faulkner Act, N.J.S.A. 40:69A-1 to -149 (also known as the Optional Municipal Charter Law), bars McCann's candidacy. The Faulkner Act is an elective statutory scheme that authorizes participating municipalities to choose between four plans of government that are set forth in the Act. Article 17 of the Act contains a series of mandatory provisions that are common to all of the optional plans, and the disqualification provision of the Faulkner Act is one of the common provisions. It states as follows:

Any person convicted of a crime or offense involving moral turpitude shall be ineligible to assume any municipal office, position or employment in a municipality governed pursuant to this act, and upon conviction thereof while in office shall forfeit his office; provided, however any person convicted of such an offense who has achieved a degree of rehabilitation which in the opinion of the appointing authority and the Civil Service Commission, as to employment subject to the Civil Service law, indicates his employment would not be incompatible with the welfare of society and the aims and objectives of the governmental agency, may be considered eligible to apply for employment or be continued in employment. Any person who shall violate any of the provisions of sections 17-14, 17-15, or 17-16 of this article shall upon conviction thereof in a court of competent jurisdiction forfeit his office. [N.J.S.A. 40:69A-166 (emphasis added) (footnotes omitted).*fn3]

Because Jersey City is a Faulkner Act municipality, McCann is subject to the N.J.S.A. 40:69A-166 standard. McCann concedes that his convictions constitute crimes "involving moral turpitude" for purposes of the statute. However, he argues that the statute deprives him of equal protection of the laws in violation of the United States and New Jersey Constitutions because it subjects him, and other Faulkner Act candidates, to a different standard for disqualification than the standard imposed on municipal candidates generally pursuant to N.J.S.A. 2C:51-2d. We hold that the disqualification standard imposed ...

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