Labor Attorney Appointment By Council Questionable
By Saul Qersdyn
Published: January 19, 2017 @ 1:31 PM EDT
The appointment of Ken Davie from the law firm of Cifelli & Davie as the Municipal Labor Attorney for 2017 during the January 5th reorganization meeting has raised questions regarding protocol, conflicts of interest, and transparency.
Appointments for professional services in the borough are done through what is called an RFP, Request For Proposal. Usually, the RFP – which is a description of the service(s) requested along with specific terms and requirements – is published with a deadline and then interested parties return a bid with their qualifications and fees for said services. From those bidders, one is given the contract with the agreed upon terms.
For the service of labor attorney, two firms submitted RFPs. They were DeCotiis, FitzPatrick & Cole, LLP and Garrubbo & Capece, P.C. On the January 5th agenda, Garrubbo & Capece was listed on Resolution 2-17 as the firm that was to be appointed as the borough’s labor attorney with an hourly rate of $135/hour. DeCotiis, FitzPatrick & Cole had attorney rates of $175/hour, law clerk rates of $125/hour, and paralegal rates of $75/hour.
Resolution 2-17 was pulled by newly-elected council president, Councilman Thomas’ Thos’ Shipley’ for a separate vote. Councilman Shipley then stated, “Mayor I’d like to amend this motion and name Kenneth Davie of the firm Cifelli & Davie out of Harrison New Jersey as labor attorney at the rate of $135 an hour.”
Borough Attorney Richard Huxford remarked on the motion, “Mayor again, at this time, it’s not an appropriate motion. This title rests with the mayor at this point and time. Down the road, if certain actions aren’t taken then power does go to the council but at this point and time, it’s a mayoral appointment. And also, I’ve just been advised by the Borough Clerk and the CFO that there was no RFP accepted by this, or made by this gentleman or his firm.”
“These aren’t mayoral appointments, they’re resolutions,” interjected Borough Clerk Doreen Cali.
“Right, but the power to appoint,” responded Mr. Huxford, reiterating that the appointment was a mayoral one at that point.
“Somebody didn’t get their act together,” chimed in Mayor Carl Hokanson.
A subsequent discussion about the bylaws – and Mr. Huxford stating that a resolution needed to be in writing to be official – resulted in a break in the meeting where a resolution was typed up and distributed to council during the meeting. It should be noted that this on-the-fly type of meeting protocol has a precedent. During the previous municipal meeting of December 29th of last year, Councilman Shipley – when it was going to be used to write a resolution to formalize the removal of the library bookhouses – stated, “I don’t know about setting that as a precedent. I don’t like that particularly.”
During the January 5th meeting, Councilman Shipley did not object to the use of the same process.
Once the resolution was written up, a vote was taken and the law firm of Cifelli & Davie was appointed as the labor attorney by a 4-2 vote with council representatives Fahoury, Meola, Shipley, and Storey voting for a service provider that did not submit an RFP and without anyone addressing how Cifelli & Davie knew to even consider the position.
The councilmembers who voted in favor of appointing Mr. Davie were contacted to address those points.
Councilman Shipley stated, “On my end, it’s one of the things that [Councilman Meola] had suggested them and I didn’t know much about them and I went with it. Next time, I will do my homework.”
When asked if – following protocol – the appointment should have been rejected and another RFP should be put out for new bids, Councilman Shipley responded, “That is being resolved. I’ve already talked to the attorney about it . . . The thing’s been deemed null and void as it were and it’s going back out for RFP.”
The Fifth Ward Councilman continued, “One of my issues with the whole thing – because I’m learning too – is with all of those appointments, there was no discussion. They were just, this is a list the mayor came up with and this is when you’re seeing them when the agenda came out.”
It was stated to the councilman that the bids for all professional services were due in early December. Roselle Park News submitted Open Public Records Act (OPRA) requests for all bids and received them at the end of December which meant they were available long before the January 5th meeting. Councilman Shipley said, “I asked for them and I got [them] on the day before. So that’s one of the issues that I’ve [been] in touch with the mayor, of wanting to talk about these things and see this stuff ahead of time.”
When asked if all the service professionals bidding for work this year were going to reviewed, the councilman answered, “I don’t have any major issues with [them]. I’m fine with everything else.”
Fourth Councilman William Fahoury stated that he found out about Cifelli through Councilman Shipley.
Council-At-Large Charlene Storey began by saying, “I gather that the whole labor attorney is going to have to be handled differently because we have to go out for a bid. For now, on just a month-to-month basis, the current attorney will be left while we go through that process.”
The question was asked of Councilwoman Storey as to how she came to choose Cifelli. She stated that she was “very much opposed” to last year’s labor attorney, Garrubbo & Capece. Precluding her comments by saying there was not much detail she could provide due to the matter being a personnel issue, “It was an awful lot of money spent on something that was clearly very minor. I felt that this was something that could have been easily and quickly settled instead and of pulling it out and making it more complex and costing the town a lot of money on it so I really wanted to go in another direction.”
She also added, “I had not been informed of any of the appointments in advance. I saw them when [most people] saw them.”
Councilwoman Storey was also notified of the bids being available weeks before the meeting.
Continuing, the councilwoman said, “I don’t know a lot of labor attorneys but I had been impressed by this guy when I saw him. I liked the way he worked. So that’s why I suggested him. Councilman Meola reached out to them but I am perfectly willing to go with somebody else.”
Even though she stated she would prefer another firm, the councilwoman did not select the other firm that submitted an RFP and, instead, went with a firm that Councilman Meola contacted on his own. Additionally, Cifelli & Davie was the law firm that represented Borough Clerk Doreen Cali in a grievance regarding health insurance premium contributions last year (link). This is, presumably, when the councilwoman had interactions with the firm.
Councilwoman Storey further commented, “I just really don’t want the same guy there [Capece] and I think that, hopefully, the next person will be on notice that we do look at how much each… I understand that sometimes there’s more to do and sometimes there’s less to do and all that but I want them to feel that we are aware of how much we’re spending.”
Councilman Meola confirmed by phone that he reached out to Cifelli & Davie on his own. In offering an explanation, especially to how a price was determined which was the exact same that Mr. Capece’s firm quoted, Councilman Meola said, “I didn’t tell them to do anything at a particular price. I didn’t pick the number. I remember the issue came up with the appointment of the labor attorney and I was not happy with Mr. Capece and I said I’m going to find somebody by the end of the year. But you get caught up with everything else and too much time goes by and I remember that there was a man who came into the Borough and he presented his case for Mrs, Cali’s hearing and I said, this guy is very thorough and I said to Charlene ‘Do you like this guy?’ She said ‘Yeah. He actually beat Capece at his own game.’ I said if I have an opportunity I’m going to call this guy. Now, I had about three other people that I had the numbers for but they never called me back in a timely manner. I guess maybe they were in court all the time or they were not interested in the amount of money they could probably get so I said would you be interested? So I called this guy up and said would you be interested in doing this and he said yeah I would but it’s not going to be much money for it. I said it’s not going to be much money but present something and the council will probably go for it, and that’s how I left it.”
Councilman Meola said that Mr. Davie put some paperwork in, adding, “From what I was under the impression, you either put the RFP in or if you don’t put the RFP in, you have to sign a paper saying that you don’t give any money to either party and you don’t donate any money. I said, then do that and that’s what he did. After that, the rest of us met at council chambers and I said I spoke to the lawyer and he would like to do the job and he didn’t give any money to either party and he would sign a paper.”
Giving further insight, Councilman Meola recounted that he was willing to not look for another labor attorney if the Roselle Park Democratic Committee (RPDC) – which he left to register as an Independent – had called him back with his concerns about Mr. Capece, “This happened a day or two before the council reorganization meeting. I was hoping to speak with people from the Democratic Committee about changing attorneys but the Democratic Committee chose to just ignore me and figured if they don’t call me I won’t do anything and I’ll just leave everything alone because I’m out of time and they wasted all of my time. So, I chose to call people up on my own and to their surprise, they said ‘I can’t believe did this without telling us’ and I said ‘I can’t believe you didn’t ever intend to call me and expect that I was going to do nothing. Did you expect me to do nothing just because you don’t call me?'”
There are still questions that remain unanswered in addition to how a rate was arrived at for a firm that never bid for a position in the borough. They include concerns regarding whether council followed the state’s Non-Fair and Open process and determining that services will not exceed a ceiling of $17,500.00 and whether the vote was even valid since – according to the Roselle Park Code Book – the appointment of the labor attorney is that of the mayor with council consent and no vote was ever taken on rejecting the law firm of Garrubbo & Capece.
The next Mayor & Council meeting is scheduled for tonight, January 19th, at 7 p.m. in council chambers of the Roselle Park Municipal Complex located at 110 East Westfield Avenue.
As of this publication, there is neither a resolution on the preliminary agenda rescinding of council’s appointment of Cifelli & Davie nor of one rejecting all bids for the labor attorney and publishing another RFP.