Superior Court orders West Cape May to reinstate Tomlin (11-4-09)

Nov, 11-2009 12:00 pm

By Carole Mattessich
Staff Writer

WEST WILDWOOD – First Susan Jacobucci, director of the state’s Division of Local Government Services, told the borough to do it.

Then the Local Finance Board told the borough to do it.

On Monday, Nov. 2, Superior Court Judge Valerie Armstrong told the borough to do it -- immediately.

“It is done,” Mayor Herbert Frederick said Tuesday morning, referring to the borough’s reinstatement of Dorothy Tomlin to her long-time position as Borough Clerk. “We certainly will abide by a court order, though we don’t necessarily agree with it.”

Tomlin was suspended Aug. 7 by Frederick, who had filed a complaint for her removal with the New Jersey Department of Community Affairs.

In interviews at that time, Frederick asserted that the borough suspended Tomlin temporarily with pay, and reassigned her to other duties within borough hall, until the underlying charges were considered by an administrative judge.

Opponents of the suspension charged that it was politically motivated, one part of a course of action in which Frederick was said to be getting rid of employees who were aligned with former Mayor Christopher Fox. They also contended that the suspension was a reaction to Tomlin’s then-recent certification of the Notice of Intent to recall Frederick filed with her by some residents.

But scheduling a hearing on the underlying charges takes months – the hearing currently is set for December 9 – and the borough obviously needed someone to carry out the Clerk’s responsibilities.

Initially the borough appointed its CEO, Judd Moore, as Temporary Clerk, but Moore resigned within days, stating that he did not have sufficient time available to fulfill the job responsibilities.

Ultimately, the borough hired a temporary acting deputy clerk – Richard Deaney – through Jersey Professional Management.

Meanwhile, in Trenton, the Division of Local Government Services was grappling with the issue of whether the borough had the legal authority to temporarily suspend Tomlin before her merits hearing occurred.

On Sept. 25, Jacobucci issued an order directing that Tomlin be reinstated, a directive that was affirmed by the Local Finance Board after a hearing on Oct. 14. The gist of these rulings was that the borough was not entitled to the emergency relief of suspending Tomlin before she was afforded the opportunity to respond to the borough’s charges at her merits hearing.

The rulings were brought before state Superior Court on Oct. 30 by the state attorney general, seeking judicial enforcement.

On Monday, the parties met in Armstrong’s Atlantic City courtroom. Frederick and Commissioner Gerard McNamara were accompanied by Borough Solicitor Paul Baldini and lawyer William Blaney of Gruccio, Pepper DeSanto & Ruth, whom the borough has retained to proceed with its allegations against Tomlin.

Deputy Attorney General Julie Cavanaugh appeared for the state, arguing that the borough had no authority for the proposition that Tomlin should remain suspended until her merits hearing.

Tomlin was present, accompanied by her attorney Michelle Douglass, as well as seven residents who have opposed the suspension.

The Judge issued her ruling within an hour of hearing brief argument, parties say.

“Ms. Tomlin shall have access to all documents, records, information technology, and Clerk seal which are customary in performing the statutory duties of Municipal Clerk / Election Official,” the Court’s Nov. 2 final judgment states.

Ruling from the bench on Monday, Armstrong checked her courtroom clock and noted to those present that the time then was 2:10 p.m., and that the ruling took effect “immediately.”

Armstrong confirmed that only Jacobucci is legally empowered to suspend or remove the borough clerk.

Former Mayor Chris Fox, who attended the proceeding as an observer, said that during the parties’ arguments, Armstrong “kept getting right to the point.”

“She was not too happy with the borough trying to argue that a ‘suspension’ and ‘being relieved of your duties’ is somehow different,” Fox said. “The Judge cut through it and said they’re basically one and the same, and under the law you just couldn’t do it this way.”

Even before Armstrong’s ruling, last week Temporary Clerk Deaney handed in a resignation of sorts.

On Monday, Oct. 26, Deaney wrote a letter informing commissioners that he had become aware of the Local Finance Board order reinstating Tomlin, and asking them to provide the date on which she would be reinstated so that he could effect a “smooth transition.” On Friday, Oct. 30, Deaney again wrote to the commission, noting that he had not received a response to his inquiry.

“It is clear that a legal order has been communicated to the Governing Body of the Borough of West Wildwood to reinstate Ms. Tomlin as the Municipal Clerk,” Deaney’s Oct. 30 letter read. “Therefore, on Monday, November 2, 2009, the Temporary Acting Deputy Clerk will arrange to orderly transfer all records and files to Ms. Tomlin, and to continue to professionally and impartially assist the Borough through this transition process.”

Borough Hall was closed for Election Day, but Frederick indicated that he expected to see Tomlin at work the following morning.

Frederick said it is important to distinguish between the issue of whether the borough can suspend an employee before the merits hearing and the hearing itself.

“We do have substantial charges,” he alleged, regarding the underlying complaint against Tomlin. “Even up in the state they said unless the clerk is caught with her hands in the till, they don’t normally allow suspension. We will show that the stuff Dottie has done has caused the taxpayers a lot of money, and we feel we have to address that.”

“The judge was very clear in her decision that she’s not there to determine the merits of our complaint, or to determine whether the clerk is doing a good job or a bad job,” Frederick contended. “Her only purpose was to determine whether the director’s decision was proper, and she said it was.”

Tomlin supporter Chris Fox said Tuesday that he believes the borough should not proceed in December, or at any time, against Tomlin.

“What the Judge told us Monday, regardless of semantics, was that if the borough does something it has to have law supporting it,” he said.