Congratulations on your Swearing in – You’ve been Served

O'Toole

This time of year is always ripe with excitement as new office holders are sworn in as Mayors, Councilmembers, Freeholders, County Executives, and Sheriffs, to name a few. Here is the tricky part — after the celebratory balloons have deflated and the ribbons and festive signs have been torn down (and recycled), it is time to go to work for the people that elected you. 

I tell everyone – it is one thing to campaign, it is quite another to actually govern. While this isn’t the main point of this column, I find it necessary to point out an obvious issue. You can be the best campaigner in the mold of William Jefferson Clinton, and he was one of the best campaigners I’ve seen, but when it comes to governing you are in a totally different league. President Clinton’s first year, much like Governor Corzine’s first year, was described by their admirers as rocky and uneven – at best. The question is WHY?   Boiled down to a simple truth—you can’t govern like you campaign and you can’t campaign like you govern.  

Some context: Rodney Dangerfield was the star in a very funny movie – “Back to School.” This simplistic movie chronicled the times of a rich contractor father who attempted to get close to his estranged son by going to college with him — what could possibly go wrong? In one funny scene the impatient father was listening to a highbrow and seemingly esoteric professor lecture on the finer and ethical points of building a manufacturing plant. Rodney’s character quickly dispels the myth as to how the plant really gets built.  In the scene, real-world experience meets class room theory. Pretty funny stuff – but we can all learn something from this. 

On to the point of this column: a cautionary tale to those newly elected office holders — be very careful of the hiring and firing of staff.  If done properly, and with common sense and smart counsel, this part of governing can be done without much confusion, costs or lawsuits.  While some jobs are obviously political by definition, chief of staff and confidential aide comes to mind, most jobs in today’s climate are afforded some baseline protections from so called political firings. 

Many of us have stormed in to office as conquerors in the mold of Alexander the Great after seizing the Persian Empire; ready to raise our flag, install our key lieutenants in positions of authority and vanquish the losers to dungeons in the basement.  New York Senator William L. Marcy once said, in reference to President Andrew Jackson’s 1828 presidential victory, “to the victor belong the spoils.” 

In New Jersey, in this day and age, it isn’t that easy. I’m not an employment lawyer, but I know one or two, and I’ve compiled a list of some state and federal statutes, case law and other documents (like our federal and state Constitutions) that might come into play if a political firing were to lead to a courtroom showdown.  Here are just a few that come to mind: 

 

  1. New Jersey Civil Service Act, N.J.S.A 11A:1-1 to 11A:12-6; 
  2. New Jersey Civil Rights Act, N.J.S.A 10:6-1 to -2, which is a means by which public employees can enforce their constitutional rights; 
  3. First Amendment of the United States Constitution; 
  4. New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 to -43; 
  5. Various Tenure Statutes;  
  6. Termination in violation of public policy under Pierce v. Ortho Pharmaceutical; and 
  7. Any number of whistleblower protections. 

 

As I detailed in an earlier column, metadata and emails can be the death of public officials (political death at your own hands). This is ever so true when it comes to tracing down the origins of an ill-advised or otherwise unlawful political firing. 

As happened with many of Alexander the Great’s loyalists, at the end of the Empire and with no benefactor around to protect them, they found themselves at the top of the “hit list” – this list being literal rather than political. Staffers and advisors are usually in the eye of storm or at the top of the creation of a “political hit list.” For those young operatives actively involved in today’s politics, not only should you be cognizant of the people you step on during your climb to the top, as you will probably encounter them on your way down, but also be aware that you too could end up as a “Defendant #2.”  

Throwback Thursday Movie – all would be well served to see (or re-visit) the 1979 political classic “The Seduction of Joe Tynan.”  Alan Alda and Meryl Streep star in this political movie about how the political system sometimes changes even the best of our elected officials.

Port Authority of New York and New Jersey Chairman Kevin O’Toole is the former Republican Senator from the 40th District.

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