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Mer-L-1753-20 (00835213).Docx MER-L-001753-20 10/30/2020 11:36:04 AM Pg 1 of 20 Trans ID: LCV20201953801 Edward J. Florio, Esq. (025311987) FLORIO ◆ KENNY ◆ RAVAL, LLP 125 CHUBB AVENUE, SUITE 310-N LYNDHURST, NEW JERSEY 07071 (201) 659-8011 Attorneys for Plaintiff, Mayor Reed Gusciora MAYOR REED GUSCIORA, MAYOR OF SUPERIOR COURT OF NEW JERSEY THE CITY OF TRENTON MERCER COUNTY: LAW DIVISION DOCKET NO.: MER-L-1753-20 Plaintiff, Civil Action v. MUNICIPAL COUNCIL OF THE CITY FIRST AMENDED VERIFIED OF TRENTON, KATHY MCBRIDE, COMPLAINT IN LIEU OF ROBIN VAUGHN, JOHN DOES 1-10, PREROGATIVE WRITS WITH TEMPORARY RESTRAINTS Defendants. Plaintiff, MAYOR REED GUSCIORA, the Mayor of the City of Trenton, as well as a resident of the City of Trenton, with offices located at 319 East State Street, Trenton, New Jersey, by way of Complaint against the Defendants, says: IDENTIFICATION OF THE PARTIES 1. Plaintiff, MAYOR REED GUSCIORA (“MAYOR GUSCIORA”), is the duly elected Mayor of the City of Trenton and a resident of the City of Trenton. 2. Defendant, MUNICIPAL COUNCIL OF THE CITY OF TRENTON (“COUNCIL”), is the City Council of the City of Trenton, which operates pursuant to the terms of Plan C of the Faulkner Act, N.J.S.A. 4069A-1 et. Seq. 3. Defendant, KATHY MCBRIDE (“MCBRIDE”), is a member of the 1 MER-L-001753-20 10/30/2020 11:36:04 AM Pg 2 of 20 Trans ID: LCV20201953801 Municipal Council of the City of Trenton and currently serves as COUNCIL President. 4. Defendant, ROBIN VAUGHN (“VAUGHN”), is a member of the Municipal Council of the City of Trenton. 5. Defendants, JOHN DOES 1-10 (fictitious names), are individuals whose names are unknown at this time and who may have responsibility under the facts of this case. 6. Defendants, MUNICIPAL COUNCIL OF THE CITY OF TRENTON, KATHY MCBRIDE, ROBIN VAUGHN, and JOHN DOES 1-10 will be collectively referred to as “DEFENDANTS.” COUNT ONE DECLARATORY AND INJUNCTIVE RELIEF AGAINST DEFENDANTS PURSUANT TO THE FAULKNER ACT, TRENTON CITY CODE, OPEN PUBLIC MEETINGS ACT, LOCAL GOVERNMENT ETHICS LAW, AND COMMON LAW 7. PLAINTIFF repeats the allegations of each previous paragraph of the Verified Complaint and incorporate the same as if set forth at length herein. 8. The City of Trenton is organized under the Faulkner Act as a Mayor-Council form of government, with a mayor and seven (7) Council members. N.J.S.A. 40:69A-31, et seq. 9. The Faulkner Act, N.J.S.A. 40:69A-31, et seq., was adopted with the intent to confer upon municipalities the greatest possible power of local self-government consistent with the New Jersey Constitution and the applicable law. 2 MER-L-001753-20 10/30/2020 11:36:04 AM Pg 3 of 20 Trans ID: LCV20201953801 10. Pursuant to the Faulkner Act, any administrative or executive functions assigned by general law to the governing body shall be exercised by the Mayor, and any legislative functions assigned by general law to the governing body shall be exercised by the COUNCIL. N.J.S.A. 40:69A-32. 11. Under the Faulkner Act, a municipality acting through a Mayor-Council form of government is organized through administrative departments. N.J.S.A. 40:69A–43(a). 12. The Faulkner Act requires that there be a department of administration and gives the municipality the discretion to create other departments, not to exceed nine in number. The Mayor, as chief executive, is responsible for enforcing the charter and ordinances of the municipality and all general laws. The Mayor is also responsible for supervising the departments of the municipal government. N.J.S.A. 40:69A-40; N.J.S.A. 40:69A-43. 13. The COUNCIL is limited to legislative functions and only has the power to appoint the Municipal Clerk. N.J.S.A. 40:69A–38. 14. Under the Faulkner Act, the COUNCIL does not have the power to terminate Department Heads and employees. 15. On September 17, 2020, DEFENDANTS COUNCIL held an Executive Session, ostensibly to discuss “Attorney Client Privilege” and “Personnel- a discussion related to the release of fire department applicant information.” 16. During the September 17 meeting, DEFENDANTS, under the 3 MER-L-001753-20 10/30/2020 11:36:04 AM Pg 4 of 20 Trans ID: LCV20201953801 guise of its investigative powers under the Faulkner Act, issued “Rice Notices” to MAYOR GUSCIORA’S Director of the Department of Law, John Morelli, Esq. (“MORELLI”) and Assistant City Attorney, JULIE MURRAY, ESQ., seeking to remove those individuals from their respective positions at an “Executive Session” on October 1, 2020. 17. DEFENDANTS did not enter into a discussion or take a formal vote in open, public session on the “Rice” Notices or on any personnel matters. No discussion was held at the Executive Session as to which employees should receive the “Rice” notices. The decision as to who should receive the notices was decided unilaterally by VAUGHN. 18. The alleged rationale for the original “Rice” notices concerned the alleged release of a memorandum regarding the review of background check information relating to Fire Academy candidates by MORELLI, which was for some reason was attached by the Clerk to a separate, unrelated Resolution to be considered by the COUNCIL. That information was subsequently disclosed to the public by way of email by DEFENDANT VAUGHN, not MORELLI. 19. DEFENDANTS scheduled an improper “Executive Session” on October 1, 2020 to discuss the conduct of members of the Law Department, specifically Director of Law John Morelli and Assistant City Attorney, Julie Murray. 20. During the Executive Session on October 1, 2020, DEFENDANTS voted 5-2 to adopt Resolution No. 20-619, which 4 MER-L-001753-20 10/30/2020 11:36:04 AM Pg 5 of 20 Trans ID: LCV20201953801 illegally terminated MORELLI for cause over several alleged failures as City Law Director, including allegedly “disseminating” executive session information from the September 3, 2020 closed- door session. 21. COUNCIL members, Jerell Blakeley and Joe Harrison, voted against termination. 22. DEFENDANTS MCBRIDE and VAUGHN voted in the affirmative, failing to recuse themselves from the votes with respect to the “Rice” notices and also the termination of MORELLI despite being saddled with irrevocable, un-waivable conflicts of interest under the Local Government Ethics Law and common law. 23. DEFENDANTS’ decision to fire MORELLI was illegal. Therefore, DEFENDANTS’ decision to fire MORELLI is invalid. The illegality of DEFENDANTS’ decision to fire MORELLI is explained below. 24. The adoption of Resolution 20-619 was procedurally flawed for several reasons. 25. First, DEFENDANTS failed to provide MORELLI notice pursuant to the Trenton City Code § 2-9(A)(3). 26. Trenton City Code § 2-9(A)(3) requires Council, when considering removal notices and motions for removal, to do so “only after notice and an opportunity to be heard are given to the affected officer,” which “copy of notice or motion . together with a statement of the charges involved and notice of the time 5 MER-L-001753-20 10/30/2020 11:36:04 AM Pg 6 of 20 Trans ID: LCV20201953801 and place fixed for hearing to be served personally, or by registered mail, upon the officer affected.” 27. Additionally, the Code sets as a minimum procedural requirement ten days’ notice. 28. Here, in addition to failing to provide a sufficient description of the intended action, DEFENDANTS only provided MORELLI with five (5) day notice prior to taking action. 29. Notice was also deficient because the Code requires personal service or service by registered mail – neither of which DEFENDANTS did here. 30. Further, the Resolution was “walked on” by DEFENDANTS and thus not presented as part of the October 1, 2020 agenda, nor was it published or available for inspection by any person including the general public prior to its introduction. 31. Not only was this a failure to provide adequate notice as required by N.J.S.A. 40:69A-37 and the Trenton Code § 2-9, it also violated the requirement of a Memorandum of Understanding (“MOU”) between the State of New Jersey, Department of Community Affairs, Division of Local Government Services and the City of Trenton to provide a copy of each agenda to the State Fiscal Oversight Officer “prior to any regular or special meeting by the governing body.” The Memorandum of Understanding in existence with the State of New Jersey requires that the Department of Community Affairs approve the termination of any Directors. This was not 6 MER-L-001753-20 10/30/2020 11:36:04 AM Pg 7 of 20 Trans ID: LCV20201953801 done here. 32. Both the statute and the Trenton Code require an opportunity to be heard, which mandates, at a minimum, a hearing in which the affected person would have an opportunity to present testimony and witnesses. 33. DEFENDANTS provided no opportunity to MORELLI for any such hearing. 34. The adoption of Resolution 20-619 was also procedurally flawed because DEFENDANTS failed to pass a Resolution for their “investigation” as required by N.J.S.A. 40:69A-37.1. 35. As DEFENDANTS’ “investigation” was unauthorized, it follows that anything resulting from that alleged “investigation” is invalid and ultra vires. 36. Furthermore, in adopting Resolution No. 20-619, DEFENDANTS blatantly disregarded the requirement to obtain approval from the State of New Jersey Department Community Affair, Division of Local Government Services, for the proposed termination of MORELLI. 37. The City’s authority in hiring and terminating employees is restricted via a Memorandum of Understanding (“MOU”) that exists between the City of Trenton and the State of New Jersey Department of Community Affairs, Division of Local Government Services (“DLGS”), which was entered into for the purpose of receiving transitional aid.
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