FOX AND FOX LLP
70 South Orange Avenue
Livingston, New Jersey 07039
(973) 597-0777
Attorneys for Plaintiffs
TED MATTOX, DAVID HERRON, RICHARD SUPERIOR COURT OF NEW JERSEY
SELTZER,
KIM
SELTZER,
MIKE LAW DIVISION:ESSEX COUNTY
VILLELLA, LEETA JORDAN, HYRANT DOCKET NO.
YOUSOUFIAN, PEGI ADAM, EMILY
ELDRIDGE, NINA and PETER BOCOUR, and
Civil Action
ARNOLD TOFFLER
COMPLAINT IN LIEU OF
Plaintiffs,
PREROGATIVE WRITS
v.
TOWNSHIP OF MONTCLAIR; JOSEPH
HARTNETT, TOWNSHIP MANAGER
MAYOR EDWARD REMSEN, COUNCILOR
GERALD TOBIN, COUNCILOR SANDRA
LANG, COUNCILOR ROBIN SCHLAGER,
COUNCILOR
JOYCE
MICHAELSON,
COUNCILOR GERALD FREIER, ALAN
TREMBULAK, TOWNSHIP ATTORNEY,
MONTCLAIR ECONOMIC DEVELOPMENT
CORP., MONTCLAIR ARTS COUNCIL AND
CLOUD GEHSHAN ASSOCIATES
Defendants.
Plaintiff, Ted Mattox, by and through his attorneys, Fox and Fox LLP, by way of
Complaint in Lieu of Prerogative Writs, along with the other named taxpayers, against the
defendants herein, hereby states as follows:
PARTIES
1.
Plaintiff, Ted Mattox (“Mattox”) is a taxpayer residing at 39 Brunswick Road,
Montclair, New Jersey, 07042. Mattox is a Councilman at Large for the Township of Montclair
and was sworn in on July 1, 2004.
2.
Plaintiff David Herron (“Herron”) is a taxpayer residing at 3 Hawthorne Place,
Montclair, New Jersey, 07042.
3.
Plaintiffs Richard and Kim Seltzer (“Seltzers”) is a taxpayer residing at 66 South
Fullerton, Montclair, New Jersey 07042.
4.
Plaintiff Mike Villella (“Villella”) is a taxpayer residing at 41 Brunswick Road,
Montclair, New Jersey, 07042.
5.
Plaintiff Leeta Jordan (“Jordan”) is a taxpayer residing at 216 Fernwood Avenue,
Montclair, New Jersey, 07043.
6.
Plaintiff Hyrant Yousoufian (“Yousoufian”) is a taxpayer residing at 1 Agyle
Road, Montclair, New Jersey, 07043.
7.
Plaintiff Pegi Adam (“Adam”) is a taxpayer residing at 13 The Fairway,
Montclair, New Jersey, 07043.
8.
Plaintiff Emily Eldridge (“Eldridge”) is a taxpayer residing at 99 Inwood Avenue,
Montclair, New Jersey, 07042.
9.
Plaintiffs Nina and Peter Bocour (“Bocours”) are taxpayers residing at 15
Fairfield Street, Montclair, New Jersey, 07043.
10.
Plaintiff Arnold Toffler (“Toffler”) is a taxpayer residing at 162 Alexander
Avenue, Montclair, New Jersey, 07043.
11.
The plaintiffs in this action have standing pursuant to N.J.S.A. 40A:11-4.
12.
The defendant Township of Montclair, New Jersey (“Township”) is a public
entity and a municipal organization existing and operating under the laws of the State of New
Jersey, whose principal business address is 205 Claremont Avenue, Montclair, Essex County,
New Jersey, 07042.
13.
Defendant Edward Remsen (“Remsen”) is the Mayor of the Defendant Township
whose principal business address is 205 Claremont Avenue, Montclair, Essex County, New
Jersey, 07042.
14.
Defendant Joyce Michaelson (“Michaelson”) is a duly elected council person for
the Defendant Township whose principal business address is 205 Claremont Avenue, Montclair,
Essex County, New Jersey, 07042.
15.
Defendant Gerald Tobin (“Tobin”) is a duly elected council person for the
Defendant Township whose principal business address is 205 Claremont Avenue, Montclair,
Essex County, New Jersey, 07042.
16.
Defendant Sandra Lang (“Lang”) is a duly elected council person for the
Defendant Township whose principal business address is 205 Claremont Avenue, Montclair,
Essex County, New Jersey, 07042.
17.
Defendant Robin Schlager (“Schlager”) is a duly elected council person for the
Defendant Township whose principal business address is 205 Claremont Avenue, Montclair,
Essex County, New Jersey, 07042.
18.
Defendant Gerald Freier (“Freier”) is a duly elected council person for the
Defendant Township whose principal business address is 205 Claremont Avenue, Montclair,
Essex County, New Jersey, 07042.
19.
Defendant Alan Trembulak (“Trembulak”) is the attorney for the Township of
Montclair, whose principal business address is 205 Claremont Avenue, Montclair, Essex County,
New Jersey, 07042.
20.
Defendant Montclair Economic Development Corp. (“MEDC”) is a not-for-profit
corporation duly organized under the laws of the State of New Jersey with its principal place of
business at 50 Church Street, Lower Level, Montclair, New Jersey, 07042.
21.
Defendant Cloud Gehsan Associates (“CLOUD”) is a consulting firm with its
principal place of business located at 400 Market Street, Suite 300, Philadelphia, Pennsylvania,
19106.
22.
Defendant Montclair Arts Council (“MAC”) is a not-for-profit corporation duly
organized under the laws of the State of New Jersey, whose principal place of business is 205
Claremont Avenue, Montclair, New Jersey, 07042.
FACTUAL BACKGROUND
23.
On July 25, 2006, the Township awarded a contract to the MEDC by resolution
dated July 25, 2006. The purpose of the contract was to provide economic development, advice,
and management consulting (the Resolution is annexed as Exhibit A).
24.
On July 25, 2006, the Township awarded a $72,000 contract to the MAC. The
purpose of the contract that was awarded to the MAC was for administration services and for the
nurturing, promotion, development of the arts and cultural affairs; coordinate a range of projects
and programs aimed at improving the economic liability of the commercial district of the
Township (Exhibit B).
25.
On July 25, 2006, the Township awarded CLOUD a contract in the amount of
$126,765 in connection with the Way Finding Program by Resolution dated July 25, 2006
(Exhibit C).
26.
The Way Finding Program is a program designed for design services and for
signage within the Township of Montclair.
27.
At no time with regard to the above referenced contracts was a public bidding
process ever initiated pursuant to N.J.S.A. 48:11-1, et seq.
COUNT ONE
PERTAINING TO THE MEDC CONTRACT
28.
Plaintiffs repeat, reiterate, and reallege all the allegations set forth in paragraphs 1
through 27 within the Complaint in Lieu of Prerogative Writs as set forth more fully in length.
29.
On July 25, 2006, the Mayor and Council of the Township of Montclair, with the
exception of Mattox, voted to award the sum of $40,000 to the MEDC. Resolution is annexed
hereto as Exhibit D. The proported basis for the award of the MEDC contract was N.J.S.A.
40A:11-5(1)(a)(ii), also known as the “extraordinary unspecifiable services” (hereinafter referred
to as “EUS”) exception to the requirement to undertake advertisements and competitive, public
bidding pursuant to the Local Public Contracts Law of the State of New Jersey to obtain the
lowest responsible bidder.
30.
In his April 26, 2006 Budget Message, Hartnett stated on page 3 that the
Township would “phase out” funding the MEDC. (Exhibit D)
31.
Notwithstanding the budget message, Hartnett signed a certification, dated July
25, 2006 (see attached Exhibit B) which stated in pertinent part that MEDC will render
“consultative and collaborative services within the general framework of economic development,
community development, and quality of life.” Hartnett further certified that “In view of the
foregoing, it is not practicable to obtain formal solicitations or quotations.”
32.
In support of the resolution, MEDC submitted a scope of services certification, a
copy of which is annexed Exhibit A.
33.
A review of the scope of services indicates that they are administrative in nature
and do not qualify for the exception to the general requirement for advertising to seek the lowest,
responsible bidder.
34.
On information and belief, MEDC consists of a full-time administrator and a part-
time office manager and has no staff of uniquely trained persons who can provide anything more
than general opinions of concerned citizens.
35.
On information and belief, Alan Trembulak, has acted as the attorney for MEDC
and for many years prior to being appointed as Township Attorney, as of February 1, 2005, after
acting as the campaign manager for the election campaign of Mayor Ed Remsen.
36.
On information and belief, the dual nature of the relationship that Alan Trembulak
has with MEDC, his client, at least until February 1, 2005, is in conflict with his role as a “local
government officer” as defined in N.J.S.A. 40A:9-22.3(g) and has limited his ability to provide
independent advice to the Mayor and Council concerning the Local Public Contract Law.
37.
On information and belief, Alan Trembulak and Ed Remsen, the Mayor of
Montclair were part of the initial creation of the MEDC and have been very involved in the
organization since its creation to date, the MEDC has become a civic organization, active within
the Montclair community, many members of which were active in the election campaigns of Ed
Remsen. Councilor Tobin is on the Board of MEDC.
38.
Section 3-61 A of the Montclair Code of Ethics states, in pertinent part that “No
official … shall grant … any … advantage or favor beyond that which it is the general practice to
grant or make available to the public at large.”
39.
Section 3-63 A of the Montclair Code of Ethics requires “public disclosure” by
public officials of conflicts of interests and “close business associations” and to “disqualify
himself/herself from participating in public or private deliberations or voting and shall not take
any action in his/her capacity as a township official, advisor or employee relating to such
matter.”
40.
Neither Alan Trembulak nor Ed Remsen recused themselves from participating in
deliberations. Neither Councilor Tobin nor Mayor Ed Remsen disqualified themselves from
voting on the resolution.
41.
Plaintiffs allege that the actions of defendants violate the Public Contracts Law of
the State of New Jersey, the Ethics Law of the State of New Jersey and the aforementioned
sections of the Municipal Code of Ethics of the Township of Montclair.
WHEREFORE, Plaintiffs seek judgment against Defendants as follows:
a.
Declaring the actions of the Mayor and Township Attorney improper and
restraining the Township Attorney and Mayor Remsen from any further
participation in the appropriation of any taxpayer funds to the MEDC.
b.
Declaring the actions of the defendants in the award of public funds to MEDC to
be in violation of the Local Public Contract Law of the State of New Jersey and
restraining any appropriation of public funds to said organizations without strict
compliance with the Local Public Contract Law.
c.
Ordering the return of any funds that may have been transferred from the
Township of Montclair to MEDC in violation of the Local Public Contract Law.
COUNT TWO
PERTAINING TO THE MAC CONTRACT
42.
Plaintiffs repeat, reiterate, and reallege all the allegations set forth in paragraphs 1
through 41 within the Complaint in Lieu of Prerogative Writ as set forth more fully in length.
43.
On July 25, 2006, the Mayor and Council, with the exception of plaintiff,
Councilor at Large Ted Mattox, voted to award the sum of $72,000 to the MAC.
44.
The basis for the award of the MAC contract was N.J.S.A. 40A:11-5(1)(a)(ii),
also known as the EUS exception to the requirement to undertake advertisement and competitive,
public bidding pursuant to the Local Public Contracts Law of the State of New Jersey to obtain
the lowest responsible bidder. (See Exhibit B)
WHEREFORE, Plaintiffs seek judgment against Defendants as follows:
a.
Declaring the actions of the defendants in the award of public funds to MAC to be
in violation of the Local Public Contract Law of the State of New Jersey and
restraining any appropriation of public funds to said organizations without strict
compliance with the Local Public Contract Law.
b.
Ordering the return of any funds that may have been transferred from the
Township of Montclair to MAC in violation of the Local Public Contract Law.
COUNT THREE
PERTAINING TO THE WAYFINDING CONTRACT AND CLOUD
45.
Plaintiffs repeat, reiterate, and reallege all the allegations set forth in paragraphs 1
through 44 within the Complaint in Lieu of Prerogative Writ as set forth more fully in length.
46.
On July 25, 2006, the Mayor and Council, with the exception of plaintiff,
Councilor at Large Ted Mattox, voted to award a contract to CLOUD for “WAYFINDING”
which exceeds $100,000. (See Exhibit C)
47.
The purported basis for the award of the WAYFINDING contract was the
“competitive contracting” exception to the requirement to undertake advertisements and
competitive bidding pursuant to N.J.S.A. 40A:11-4.1. A copy of the resolution is annexed within
Exhibit C.
48.
CLOUD submitted its proposal to Hartnett by letter, dated June 23, 2006, a copy
of which is within Exhibit G.
49.
N.J.S.A. 40A:11-4.3 and N.J.S.A. 40A:11-4.4 require the competitive contracting
process to be administered by the purchasing agent, administrator or legal counsel of the
Township and that said person(s) shall prepare a request for proposal including a methodology
that permits the evaluation and ranking of proposals based on objective criteria.
50.
On information and belief, as set forth in the resolution attached as Exhibit C, the
competitive contracting process, including, but not limited to preparation for Requests for
Proposals was improperly delegated to a volunteer “Wayfinding Committee, consisting of nine
members…”
51.
On information and belief, the Request for Proposals utilized by the
“Wayfinding Committee” set forth a deadline for submission as December 9, 2005, as set forth
in the annexed Exhibit E.
52.
The proposal submitted by CLOUD, dated June 23, 2006 was in excess of six (6)
months after the deadline set forth in the aforementioned request for proposal.
WHEREFORE, Plaintiffs seek judgment against Defendants as follows:
a.
Declaring the actions of the defendants in the award of public funds to CLOUD to
be in violation of the Local Public Contract Law of the State of New Jersey and
restraining any appropriation of public funds to said organizations without strict
compliance with the Local Public Contract Law.
b.
Ordering the return of any funds that may have been transferred from the
Township of Montclair to CLOUD in violation of the Local Public Contract Law.
COUNT FOUR
VIOLATIONS OF THE OPEN PUBLIC MEETINGS ACT
53.
Plaintiffs repeat, reiterate, and reallege all the allegations set forth in paragraphs 1
through 52 within the Complaint in Lieu of Prerogative Writ as set forth more fully in length.
54.
The Open Public Meetings Act of the State of New Jersey requires the public to
receive notice of the subject matter to be discussed in executive session to be described in a
manner that can allow the public to identify the subject matter.
55.
On information and belief, the contracts described in Counts One, Two and Three
were the subject of discussion in executive session.
56.
The notice of the agenda for executive session of the public meetings of the
governing body of Montclair, consistently violate the requirement to be specific as set forth in
N.J.S.A. 19:44A-20.5 A copy of a typical agenda notice is attached hereto as Exhibit F which
merely states “Personnel” and “Contracts” as items for discussion in executive session.
WHEREFORE, plaintiffs seek an Order of this Court declaring the resolutions set forth in
Counts One, Two and Three to be void in violation of the Open Public Meetings Act of the State
of New Jersey.
JURY DEMAND
Plaintiffs hereby demand a trial by jury of all issues so triable.
FOX AND FOX LLP
Attorneys for Plaintiffs
By:___________________________
Anthony Di Salvo
Dated: September 8, 2006
RULE 4:5-1 CERTIFICATION
I, ANTHONY Di SALVO, certify that the matter in controversy is not the subject of any
other action or arbitrary proceeding, now pending or contemplated, and that I am not aware at
this time of other parties who should be joined in this action.
FOX AND FOX LLP
Attorneys for Plaintiffs
By:__________________________
Anthony Di Salvo
Dated: September 8, 2006
DESIGNATION OF TRIAL COUNSEL-R 4:25-4
Pursuant to Court Rule 4:25-4, Anthony Di Salvo, Esq. is hereby designated as Trial
Counsel for plaintiffs.
FOX AND FOX LLP
Attorneys for Plaintiffs
By:________________________
Anthony Di Salvo
Dated: September 8, 2006