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
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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.
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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
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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
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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
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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
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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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38. That MOU requires prior consent of the DLGS prior to the hiring and termination of employees and directors.
39. Regarding hiring employees subject to governing body advice and consent, subsection F of the MOU states, in relevant part:
A Request to Hire Employees Requiring Governing Body Advice and Consent Waiver Form" (Attachment A) shall be completed and submitted to the Director through the State Fiscal Oversight Officer prior to the Municipality advancing any candidate to the governing body for advice and consent. . . . . The Municipality should establish a hiring committee that shall include the Mayor or his / her designee. a governing body representative, the department head, a personnel /human resources staff member and the State Technical Advisor to interview/screen candidates for the position in a collaborative manner. The Municipality will then submit the candidate to the governing body for advice and consent. This methodology will ensure key positions are filled with qualified individuals who will achieve State and governing body approval. Thereafter, the governing body may hold a meeting to consider its advice and consent. The Municipal Clerk shall return the waiver form indicating the results of said meeting. Upon its receipt of the waiver form. DLGS will make a final determination concerning approval or disapproval of the candidate. The Municipality shall not hire the candidate until it receives DLGS final written approval. . . . .
40. Subsection G of the MOU similarly imposes restrictions on Council’s authority for termination and suspensions without pay
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for city employees:
The Municipality shall be required to notify the State Fiscal Oversight Officer of a decision to terminate or suspend without pay any officer or employee . . . . No employee referenced above may be terminated by the Municipality or asked to resign without the Municipality first submitting a "Termination Form" (Attachment M) for approval to DLGS. The State Fiscal Oversight Officer in his or her sole discretion shall be permitted to, but shall not be required to, prohibit or postpone such a termination for any the following reasons: retaining a qualified and conscientious employee; ensuring an appropriate transition to a qualified replacement; concerns that termination is not consistent with law. Prior approval to terminate an officer or employee is not needed upon an officer or employee being criminally convicted or indicted.
41. DEFENDANTS, in seeking termination of MORELLI, completely disregarded the requirement to submit Attachment M to the DLGS.
42. DEFENDANTS made no effort whatsoever to obtain approval and permission from the DLGS prior to the adoption of Resolution
No. 20-619, in accordance with section G of the MOU.
43. The DLGS itself confirmed via email that Resolution No.
20-619 was passed on October 1, 2020; however, a “waiver request to remove MORELLI was not submitted until October 8, 2020.
44. According to DLGS, this is a violation of the MOU because:
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DCA approval must be sought prospectively rather than after the termination is effective. This is a condition of the MOU to which elected officials agreed on behalf of the City upon signing. The intent of this provision is to ensure the municipality consults with the Division prior to making personnel decisions of great import, including decisions regarding the termination of a municipal department head.
45. To that end, the DGLS required the Council to provide
“more detail regarding the process the governing body followed and the reasons for which the governing body has determined this removal is critical.”
46. The DGLS stated that this information “will assist DCA in making a fully informed decision.”
47. The DLGS specifically requested at least the following information to review:
▪ Completed and signed attachment M;
▪ Detailed information of the process followed, including, but not limited to dates, any resolutions passed with certification; disciplinary hearings, etc.
▪ Sufficient explanation to justify the requested action;
▪ Additional information may be requested.
48. The adoption of Resolution No. 20-619 was also invalid because two members of COUNCIL, VAUGHN and MCBRIDE, should have recused themselves and were under no circumstances permitted to
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participate in any fashion in the decision to terminate MORELLI because both individuals are saddled with irrevocable, un-waivable conflicts of interest under both common law and the Local
Government Ethics Law.
49. There is no question that the private, personal interests of MCBRIDE, who has stated that she is out to “get”
MORELLI, interfere with her ability to act in a dispassionate manner necessary for her to perform her duties in the above- mentioned investigation impartially.
50. Similarly, VAUGHN has repeatedly demonstrated enmity toward MORELLI through her conduct toward him, which resulted in a pending complaint against her, and her filing of an ethics grievance.
51. VAUGHN is also personally involved in the matter regarding the September 3, 2020 meeting through her participation in the release of information via email that she now claims was improperly released.
52. In other words, VAUGHN voted to terminate MORELLI because of something she herself did and because of personal enmity and not the public interest.
53. In as much as this matter has been referred to the Mercer
County Prosecutor’s Office for a criminal investigation, VAUGHN herself is a witness, if not a possible target, in that criminal investigation and should not have participated in any fashion in
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any such investigation regarding MORELLI and any vote to terminate
MORELLI.
54. Therefore, both VAUGHN and MCBRIDE should never have been a part of any investigation pertaining to MORELLI and especially not any vote to terminate MORELLI.
55. The conflicts of VAUGHN and MCBRIDE result in the entire
COUNCIL’s vote being tainted with impropriety; therefore, the
COUNCIL’s passage of Resolution 20-619 is invalid.
56. In addition to failing to provide sufficient notice and opportunity to be heard, the Council failed to remove MORELLI for cause, as required by N.J.S.A. 40:69A-37, because the facts
DEFENDANTS cited as its basis for removal were demonstrably erroneous.
57. DEFENDANTS claimed that MORELLI violated the confidentiality of the Executive Session held by City Council on
September 3, 2020.
58. However, how this was allegedly done was not disclosed prior to the October 1, 2020 Executive Session, nor was a charge brought which stated specifically how that privileged was breached.
59. The Council’s Resolution on this issue reads:
WHEREAS, the Law Director did knowingly breach the attorney client privilege of a City Council Executive Session on September 3, 2020 in disseminating information from that Executive Session to parties who were not
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entitled to participate in that Executive Session[.] 60. The facts fail to demonstrate release of any such information by MORELLI. To the contrary, the four Council Members themselves disclosed the existence of the presentation by a developer. In addition, the presentation of the developer had previously been disseminated to the Department of Housing and
Economic Development and was generally known throughout the
Administration.
61. At the October 1, 2020 meeting, DEFENDANTS alleged that it was a text message not from MORELLI but from Yoshi Manale, the
Chief of Staff, to Marge Caldwell Wilson, which stated in response to the question posed by Councilwoman Wilson: “Are you in on this call (sic)” during the meeting; to which Mr. Manale replied: “I am getting updates from mayor and John.”
62. This is the sole factual basis for the finding of a breach of confidentiality by MORELLI and one which DEFENDANTS did not see fit to take testimony on or even examine the evidence.
63. This unsounded basis does not establish “cause” under the Faulkner Act.
64. The second factual basis alleged by DEFENDANTS in support of their decision to remove MORELLI is that he failed to seek the appropriate waivers for the appointment of Edward Kologi,
Esq., as the “attorney for the Council.”
65. Specifically, DEFENDANTS alleged:
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WHEREAS, the Law Director failed to obtain the proper Department of Community Affairs waiver to retain special counsel appointed for the benefit of the City Council. In his failure he caused monies to be paid to the special counsel despite not obtaining the proper DCA waiver while giving the impression to the Trenton City Council special counsel had been properly retained, when in fact that was not true, placing the Trenton City Council in legal jeopardy[.]
66. However, this allegation is demonstrably false and pretextual, as evidence shows that MORELLI in fact obtained the necessary waivers.
67. Further, this allegation was not noticed as an allegation or charge prior to the COUNCIL’s Executive Session.
68. Rather, it was presented for the first time when the
Resolution was voted upon.
69. It is a basic tenant of our system of justice, whether the charge be criminal or one grounded in the loss of one’s employment, that the accused be advised of the charge against him or her, which was not done in this matter.
70. In any event, although MORELLI ultimately submitted the waiver form and discussed the appointment with the DLGS, that duty ultimately fell upon the Municipal Clerk under the terms of the
MOU. Thus, any failure to submit the waiver form in this instance would not have resulted in the cause necessary to remove MORELLI.
71. Next, DEFENDANTS alleged as a basis for removal a series of substance-free, conclusory statements.
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72. Specifically, Council alleged:
WHEREAS, the Law Director has managed the legal affairs of the City of Trenton in such a way as to foster repeated and continued breaches of attorney client privileged information; to foster disharmony; to create an environment wherein neither the Trenton City Council nor the City of Trenton is zealously represented by the Law Department or appointed special counsel in a way that fosters confidence and trust in the Attorney Client relationship or meets the legal needs of the City of Trenton and the Trenton City Council[.] 73. These allegations are merely a summary of misstatements of fact that DEFENDANTS have created to justify the improper and illegal removal of a member of the Mayor’s cabinet.
74. This is an attack upon the Mayor, his Cabinet, and the entire form of government under the Faulkner Act. If allowed to stand, the DEFENDANTS will have turned the Mayor-Council form of government on its head and shredded the terms of the Faulkner Act.
75. Finally, the DEFENDANTS charged certain violations of the Rules of Professional Conduct, while providing no specifics as to the violations of that conduct.
76. There is no doubt that as an attorney, MORELLI is subject to the Rules of Professional Conduct, but the DEFENDANTS had no jurisdiction to hear any such violations.
77. Rather, such jurisdiction is with the Supreme Court of
New Jersey.
78. Despite DEFENDANTS’ frivolous allegations, MORELLI is an
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exceptional attorney and a conscientious employee who was worked for the City of Trenton as a contract attorney since 1999 and has been a full-time employee since 2017.
79. MORELLI has, alone, saved the City countless dollars and handles over one-hundred (100) lawsuits in addition to supervising and managing six (6) attorneys in the Law Department.
80. It would be a devastating loss to the City to find an immediate replacement and would be an undue hardship having to find someone to take up the City’s caseload at the same time.
81. There has been no thought or enough time to immediately transition to another individual to assume MORELLI’s position and duties.
82. This has caused and will continue to cause great disruption to the Law Department and irreparable harm to the City.
83. An example of this shown through the actions and communications of Matthew Conlon, the City Clerk, who refuses to communicate the Council’s requests through MORELLI, citing the illegally adopted, factually baseless, and otherwise invalid
Resolution No. 20-619.
84. Mr. Conlon has improperly addressed MORELLI’s staff, aggressively defaming MORELLI with unfounded accusations of misconduct.
85. This has already caused and will continue to cause confusion and disruption with respect to City business, such as
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the drafting of ordinances and resolutions, which must be approved by the Law Director under City Code.
86. DEFENDANTS’ abrupt termination of MORELLI without any forethought or planning with respect to a transition is evidence of the true, improper motives of DEFENDANTS’ actions.
87. DEFENDANTS’ actions have not only been done improperly under law, but are a thinly veiled excuse by certain members of
City Council, namely Council President McBride and Councilperson
Vaughn, to strike back MAYOR GUSCIORA and his Administration in retaliation for successfully obtaining injunctive relief against those Council members in a separate action.
88. DEFENDANTS’ actions, both procedurally and substantively, exceed their authority under all applicable law.
89. Therefore, a justiciable controversy exists as
DEFENDANTS have taken action that is in violation of the Faulkner
Act, the Trenton City Code, the Open Public Meetings Act, the Local
Government Ethics Law, common law conflict of interest prohibitions, and other statutory authority.
90. The Court may declare DEFENDANTS’ actions illegal pursuant to the Declaratory Judgment Act, N.J.S.A. 2A:16-50, et.
Seq.
91. The conduct of DEFENDANTS has caused irreparable harm to
MAYOR GUSCIORA and the operation of City government.
WHEREFORE, Plaintiff, Mayor Reed Gusciora, respectfully
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requests:
a) A preliminary injunction enjoining Resolution No. 20-
619 from going into effect:
b) A judgment declaring that DEFENDANTS violated the law in connection with their adoption of Resolution No. 20-619, including, but not limited to: the Faulkner Act, the Trenton City
Code, the Open Public Meetings Act, the Local Government Ethics
Law, and common law prohibitions on conflict of interest; and
c) A judgment invalidating and otherwise reversing
Resolution No. 20-619; and
d) Such other relief as the Court may deem equitable and just.
TRIAL COUNSEL DESIGNATION
Pursuant to R. 4:25-4, EDWARD J. FLORIO, has been designated counsel on behalf of the Plaintiff.
FLORIO ◆ KENNY ◆ RAVAL, LLP
/s/ Edward J. Florio ______DATED: October 30, 2020 EDWARD J. FLORIO, ESQ. ATTORNEYS FOR PLAINTIFF, MAYOR REED GUSCIORA
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CERTIFICATION
The Plaintiff hereby certify that the matter in controversy is not the subject of any other action pending in any court and is likewise not the subject of any pending arbitration proceeding.
The Plaintiff further certifies that she has no knowledge of any contemplated action or arbitration proceeding which is contemplated regarding the subject matter of this action and she is not aware of any other parties who should be joined in this action.
FLORIO ◆ KENNY ◆ RAVAL, LLP
/s/ Edward J. Florio ______EDWARD J. FLORIO, ESQ. ATTORNEYS FOR PLAINTIFF, DATED: October 30, 2020 MAYOR REED GUSCIORA
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VERIFICATION MAYOR REED GUSCIORA, of full age, certifies as follows:
1. I am the Mayor of the City of Trenton. As such, I have full knowledge of the facts contained therein.
2. I have read the foregoing Verified Complaint and the information contained therein, and I hereby attest to its truthfulness based on my personal knowledge.
I hereby certify that the foregoing statements made by me are true. I am aware that if any of the forgoing statements made by me is willfully false, I am subject to punishment.
Dated: October 30, 2020 W. REED GUSCIORA MAYOR, CITY OF TRENTON
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