A judge ended months of speculation Tuesday by ruling that Gerald McCann, a former mayor and felon, can run and, should he win, hold the mayor’s office.
There are six candidates competing in the mayor’s race, with the election to be held May 8 .
The ruling came as a shock to some observers, and the saga may not be over if the state decides to weigh in on the matter, but for now, McCann is pleased.
“I believe that I was right from the beginning,” McCann said last week. He and his attorneys had argued that a state law that could have prevented him from assuming office was unconstitutional. The judge agreed. “I think everybody now thinks I can win,” McCann said.
The legal jostling had arisen as a result of a peculiar section of state law known as the Faulkner Act, which states that in certain municipalities like Jersey City, an official or government employee “convicted of a crime or offense involving moral turpitude shall be ineligible to assume any municipal office…”
However, the law also stipulates that a person who has achieved a “degree of rehabilitation which in the opinion of the appointing authority and the Civil Service Commission…indicates his employment would not be incompatible with the welfare of society…” could make him eligible for office.
But in an 18-page decision released Tuesday, Hudson County Superior Court Judge Arthur D’Italia chose to look not only at that specific law, but also at the constitutionality of it. Citing a 1980 Atlantic City residency case, D’Italia said that the Faulkner Act as it pertains to the question of moral turpitude “is unconstitutional in that there is no rational legislative purpose to be advanced by precluding persons convicted of moral turpitude from holding office in Faulkner Act municipalities while permitting such persons to serve in the other forms of government.”
The city said it has no intention of appealing the decision, contrary to earlier published reports. Corporation Counsel Sean Connelly nevertheless faxed a copy of the decision to the state Attorney General’s office, seeking their opinion.
That office could enter an appeal on D’Italia’s ruling, but had not made a decision as the paper went to press. “We’re going to review it,” said Attorney General spokesman Chuck Davis, “and make a determination.” He said the review would take a few days, but he added, “We’re not going to put an arbitrary deadline.”
City Clerk Robert Byrne certified McCann’s petitions for mayor within an hour of the ruling. His earlier refusal to certify those petitions prompted McCann’s suit.
McCann served as mayor of Jersey City from 1981 until 1985, when he lost to Anthony Cucci. He won the office back in 1989. But in 1991, a federal court in Newark convicted him of defrauding a Florida savings and loan bank and altering his tax return documents, among other charges. He served two years and attempted a run in 1997, but Judge D’Italia blocked that attempt based on McCann’s status as a federal parolee.
Timing is everything
The timing of McCann’s criminal actions played a crucial role in last week’s decision, as D’Italia noted that “the conduct giving rise to his convictions occurred prior to his having become mayor.” Based on this fact, D’Italia concluded that McCann’s actions never “touched upon his office.”
D’Italia wrote: “There is no instance in which a person has been forever barred from holding public office based upon conduct occurring at a time when the person did not hold any public office, position or employment.”
For D’Italia, the question came down to the intent of the law: “The purpose is to prevent miscreants and corrupt officials from again holding office. McCann’s conduct, however reprehensible, was not that of a public official. It was the criminal conduct of a private citizen, for which he has been punished.”
Some may wonder why McCann would want to run for an office he left in disgrace. For McCann, this is not an issue.
“The person who is saying I shouldn’t run” he said, “is the person who was against me before.”