- Offenses Involving Dishonesty
Under pre-Code law, the predecessor removal statute,
N.J.S.A. 2A:135-9, provided that the offense must involve
“moral turpitude.” See, e.g., O’Halloran v. DeCarlo, 156
N.J.Super. 249 (Law Div.), aff’d 162 N.J.Super. 174 (App.
Div.), certif. denied, 79 N.J. 469 (1978), cert. denied, 442
U.S. 917 (1979). The change in the penal code from
“moral turpitude” to “dishonesty” appears to be a
broadening of the language of the statute. Crimes which,
under pre-Code law, would be insufficient to warrant
removal may, nevertheless, now be sufficient under this
section. State v. Musto, 187 N.J.Super. at 275. The statute
also makes no distinction as to the quantum of dishonest
conduct -- such conduct compels forfeiture of office,
regardless of any mitigating circumstances defendant
offers. State v. Hamm, 121 N.J. 109, 125 (1990), cert.
denied, 499 U.S. 947 (1991); State v. Lee, 258 N.J.Super. at
317, 318.
D. Self-Executing Nature of the Forfeiture Provisions
The provisions of N.J.S.A. 2C:51-2 are self-executing.
Pursuant to the statute, the forfeiture occurs automatically
at the time of sentencing unless the court, for good cause
shown, orders a stay of such forfeiture. State v. Pitman, 201
N.J.Super. at 25; State v. Musto, 188 N.J.Super. at 108; State
v. Botti, 189 N.J.Super. at 132-33.
E. Good Cause for Ordering a Stay of Forfeiture
A convicted defendant seeking to avoid forfeiture of
office may be able to demonstrate “good cause” for the
court to order a stay if he or she can show that there is a
substantial likelihood of success on appeal, particularly if
the offense is totally unrelated to his or her duties as a public
official. However, “good cause” is not shown by the
allegation that the forfeiture would thwart the will of the
voters who elected defendant, that the offense was
unrelated to defendant’s duties, or that the amounts of
money fraudulently taken were not large. Moreover, “good
cause” is not generally shown by the fact that if the
defendant’s conviction is reversed on appeal, the taxpayers
will have to pay him or her back salary, even though a
replacement also received a salary during the pendency of
the appeal. State v. Botti, 189 N.J.Super. at 132-39; see
generally Moore v. Youth Correctional Inst., 119 N.J. at 265.
F. Standing to Initiate Forfeiture Proceedings- Authority
The county prosecutor and the Attorney General have
standing to institute a suit to compel the forfeiture of office
of one who has been convicted of an offense. O’Halloran v.
DeCarlo, 156 N.J.Super. at 256; see also State v. Musto, 187
N.J.Super. at 269-71.- Waiver of Forfeiture
N.J.S.A. 2C:51-2e permits the county prosecutor or
Attorney General to seek a judicial waiver of forfeiture if
the office holder has committed a disorderly or petty
disorderly persons offense and good cause is shown. Moore
v. Youth Correctional Inst., 119 N.J. at 265, 268; State v.
Lee, 258 N.J.Super. at 317.- Pardons
Although a public official is otherwise forever
disqualified from holding public office by virtue of
N.J.S.A. 2C:51-2d, the subsequent executive grant of a full
pardon for the underlying conviction will lift the bar to
seeking future public employment. Brezizecki v. Gregorio,
246 N.J.Super. 634, 638, 643-44 (Law Div. 1990).G. Scope of Subsequent DisqualificationA public officer convicted of an offense involving or
touching on his or her public office must be forever
disqualified from holding any State office or position of
honor, trust or profit. See Pastore v. County of Essex, 237
N.J.Super. at 378 (Legislature intended to disqualify
convicted offenders from all forms of governmental
employment); State v. Pitman, 201 N.J.Super. at 25.H. Guilty PleasIn State v. Heitzman, 107 N.J. 603 (1987), the
Supreme Court overruled State v. Pitman, to the extent that
it held that a trial court must advise a defendant at the time
of pleading guilty that the offense to which he or she is
pleading guilty will result in the forfeiture of office. The
Court emphasized that the rule of State v. Kovack, 91 N.J.
476 (1982), pertains only to penal consequences, and not
to collateral consequences such as forfeiture of office, the
loss of employment, or the possibility of deportation. See
Doe v. Poritz, 142 N.J. 1, 147 (1995) (Stein, J., dissenting);
State v. Garcia, 320 N.J.Super. 332, 336-37 (App. Div.
1999).