Irvington loses bid to reverse ruling on mayor's recall

By Bill Wichert | NJ Advance Media for NJ.com
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on August 18, 2015

More than 100 people turned out on Monday, July 13, for an event to honor Irvington Mayor Tony Vauss for his first year in office.

 

NEWARK -- A Superior Court judge has rejected Irvington's bid to overturn her previous ruling directing municipal officials to approve a document that would allow a group of four township residents to begin the process of recalling Mayor Tony Vauss.

Judge Christine Farrington on Aug. 7 denied the township's motion to reconsider her June 26 court order, which directed Municipal Clerk Harold Wiener to certify the "notice of intention" filed by the residents to recall the mayor.

Wiener rejected the notice in May, because municipal officials said the residents included reasons for the recall in their notice that were "not based on facts," court documents state. The residents then sought a court order from Farrington to compel Wiener to sign off on the notice.

The reasons cited in the residents' notice include an increase in property taxes; rising crime and murder rates; and allegations that Vauss forced a municipal employee to have sex with him in a township office.

In questioning the judge's original decision, Eric Bernstein, the township's attorney, has said that inherent in the state statute governing recall elections is the requirement that a notice must be accurate in order to be certified.

The township also could be held liable for the defamation of Vauss if the municipal clerk certified a notice that includes the sex-related allegations, Bernstein said.

But Farrington maintained her initial ruling that Wiener must approve the notice, because his reason for denying certification does not exist in the statute.

"Defendant Wiener contends that the reasons are not factual, and that the allegations of criminal activity made in paragraph 2 (listing the sex-related allegations in the notice of intention) are defamatory," Farrington wrote in her Aug. 7 decision to deny the motion for reconsideration.

"However, the statute does not construe the defendant's certification of the notice of intention as an endorsement or verification of its contents," the judge wrote. "Even if, for the purposes of this motion, the statements are defamatory, the defendant's statutory obligation to certify the notice of intention is not avoidable.

"No new factual or legal arguments have been presented within these motion papers to establish that the prior decision was in any way incorrect on the facts or the law, nor that it was arbitrary, capricious, or unreasonable," the judge added. "Defendant's disagreement with the court's decision is insufficient to require reconsideration."

Bernstein could not be reached for comment on the judge's ruling.

J. Edward Waller, the attorney representing the residents, declined to comment on the decision.

Waller has said the residents maintain that their assertions in the notice are based on facts. Waller said the residents are entitled to note in their notice that the sex-related allegations have been made.

The residents behind the recall bid are Elouise McDaniel, Daisy Fuqua, Destin Nicolas and Cathy Southerland, court documents state. The residents initially filed their notice of intention in December, but had to wait until Vauss had been in office longer.

After their notice of intention is approved, the residents can organize, raise money and ultimately submit a sample recall petition to the municipal clerk for his approval, according to Waller.

Once the sample petition is approved, the recall committee would have 160 days to collect signatures from at least 25 percent of registered voters in order to force a recall election. The clerk must then approve those signatures before signing off on the recall election.

The sex-related allegations cited by the residents refer to a lawsuit from a township employee who alleges Vauss forced her to have sex with him on June 9, 2014 in the employee's office. Vauss took office on July 1, 2014.

The employee claims she told Vauss "no" twice, but he wedged her against a desk and performed the sex act, the lawsuit states. Vauss and the township are named as defendants in that lawsuit.

But Vauss has said the employee's lawsuit is a "lie." The mayor has claimed that lawsuit and the recall bid are acts of political retaliation for his mayoral victory in May 2014, when he defeated incumbent Wayne Smith out of eight candidates.

The mayor has said the residents' reasons for the recall are false, saying he has not raised taxes since he's been in office and that the crime and murder rates have not increased.

Vauss also has noted how McDaniel and Southerland were among the defendants he sued in April 2014, claiming they subjected him to "harassment, ridicule, and defamatory statements," according to that lawsuit.

Last month, the Irvington Municipal Council members unanimously approved a resolution to declare a "Vote of Confidence" in the mayor, citing various accomplishments by Vauss during his first year in office.

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