LAWYER RUMBLE
Fired city council attorney fires back, says he’s being made a ‘scapegoat’ for Wire Works debacle »
TRENTON » Someone is trying to save his own hide. Is it John Morelli or Edward Kologi?
In a letter Sunday, the council-appointed attorney defended himself against Mayor Reed Gusciora’s allegation that the Kologi Simitz law firm violated terms of its contract with the city.
In a bold decision to fire council’s attorney Friday, Gusciora blamed Kologi for “unilaterally” advising legislators on municipal matters without consulting Trenton’s law director.
Kologi was supposed to “operate under the direction” of Morelli per the terms of his contract, the mayor said. He also took the lawyer to task for not stepping in when council met illegally in its Sept. 3 executive session with a redeveloper who wanted to buy the historic Roebling Wire Works building.
In an interview, Kologi accused the Gusciora administration of lying about the true reasons he was fired and pledged to fight the decision in court.
“Your feeble attempt to lay the blame for this issue on me or my firm is more than disingenuous, and your comments and criticisms in your letter and in the September 20, 2020 Trentonian are untrue and outright defamatory,” Kologi wrote to Gusciora.
The contract gives Morelli wide latitude saying the law firm “agrees to perform all legal services prescribed in the RFP, and all related matters deemed necessary by the City Attorney, and only at the request of, under the general supervision of, and in accordance with the manner prescribed by the City Attorney.
“Regardless of whether the request for services is received by City Council or from an individual City Council member, all assignments must be submitted to the City Attorney for authorization prior to the commencement of services. ALL WORK INSTRUCTIONS WILL BE GIVEN BY THE CITY ATTORNEY.”
The Request for Proposal says the firm must be “available for consultation on a regular basis and shall deal directly with the Council members or such individuals’ designees.”
Kologi pointed this out in his letter to the mayor.
“Unilateral communication and consultation with Council Members is in fact mandated by our Contract. However, you inexplicably opine that it constitutes a contractual violation,” he wrote. “Additionally, at no time did the Law Department ever provide any ‘direction’ on this issue which was contravened.”
Emails obtained by The Trentonian showed Morelli appeared to first bring the alleged contract violation to Kologi’s attention Sept. 9.
That was six days after a blowup over council’s apparent flouting of the state Sunshine Law in the proposed redevelopment deal.
“You are required to get the permission of the City Attorney before undertaking projects,” Morelli wrote.
Kologi wrote back that he was “flabbergasted” the law director was claiming he violated the contract for not getting “approval in advance” to draft a “minor ordinance” for councilwoman Robin Vaughn on a foreclosure matter.
The council-appointed attorney told The Trentonian he had developed a working relationship with Morelli in which he often drafted proposed legislation for legislators then sent it to Morrelii for review and approval.
Morelli never made an issue of it before, he said.
“Are you kidding me? Since Day 1, when I came here, we have had the authority and we’ve had the latitude to do all these types of stuff,” Kologi said in a phone interview. “Now all of a sudden, the rules are changing. I said, ‘Now I’m sensing you want to start a paper trail against me.’ ... You can’t keep talking out of both sides of your mouth.”
Kologi said his contract can be terminated for “cause” but that doesn’t exist in this case, adding the mayor doesn’t have legal standing to end the contract without council approval.
“Consequently, we do not believe your determination as set forth in your September 17, 2020 letter has any legal force or effect,” he wrote.
Kologi said the mayor’s basis for ending the contract is also flawed.
“Your correspondence states that ‘in certain instances,’ we ‘... unilaterally provided legal advice and direction to the Council that is in contravention of [our] Contract as well as the direction of our Law Department.’ You do not cite any specific instances, because there are none,” he said.
Gusciora pointed to a Superior Court-level case in laying out his basis for firing Kologi’s firm.
“The Robertson Court warned, ‘[h]aving two attorneys doing duplicate work creates the potential for confusion and even stalemate in the event that the advice given by both differs.’” the mayor wrote.
Kologi said the case carries little legal weight in New Jersey.
“While I am not going to debate the law in this email, suffice to say that your Law Department drafted the Requests for Proposals in such a way as to avoid any of the difficulties suggested by that case,” the fired attorney wrote. “At no time has there ever been conflicting legal advice given by me and the City Attorney. In fact, we always worked together to reach a consensus on our legal opinions so as to avoid any potential confusion.”
Gusciora said Sunday he stood by his reasons for axing Kologi.
“He went off on his own path,” the mayor said. “We’ll see him in court. I wouldn’t if I was him, but that’s OK.”
Background
Council renewed the firm’s $84,000 contract in July after Kologi was first brought aboard at the beginning of the year to act as council-appointed attorney because of the governing body’s strained relationship with Morelli.
Some members of the legislative branch distrusted Morelli’s legal advice.
Even though counseling the mayor and legislators is part of Morelli’s duties as law director, the administration, seeking to lessen discord at City Hall, agreed to legislators’ request for special counsel and hired Kologi Simitz in January following a competitive bidding process.
The initial contract for $45,000, approved 6-0 at the Jan. 23 meeting, ran through June 30 of this year.
On July 2, council approved Kologi Simitz’s renewal after it was rated the top contender among 12 bidders, records show. The contract runs through June 2021.
Before his sudden dismissal, Kologi said his relationship with Morelli worked “extremely well.”
He provided The Trentonian an email as recently as Aug. 16 of the law director praising the firm’s work.
“I am going to have a conversation with the mayor tomorrow and see if we can come to a resolution,” Morelli wrote. “It has nothing to do with you or the work you have done. You are a very able and accomplished attorney. As I’m sure that you have seen, the conflicts between the individual council members and the mayor are an almost daily occurrence and you (and I) get caught in the crossfire.”
The dynamic with Morelli “fundamentally changed” after the Sept. 3 meeting, Kologi said.
That’s when the council illegally met with redeveloper John Liu of Elite Spiders LLC in executive session to discuss acquiring the Wire Works building for $200,000.
Liu presented his vision to the governing body to turn the building into a face mask/PPE manufacturing plant. The proposal drew the ire of arts community, which doesn’t want the building sold since it’s home to the annual Art All Night festival.
The mayor slammed Kologi for not advising legislators that they were violating the Open Public Meetings Act by meeting privately with Liu.
“It begs the question: how this was allowed to happen in contravention of the Open Public Meetings Act (OPMA) as well as customary practices of municipal government under the Faulkner Act,” Gusciora wrote.
Governing bodies can meet in executive session to discuss contract negotiations among themselves but not with the interested party.
Those who sat in the session, speaking on condition of anonymity, say neither Kologi nor Morelli advised them against going forward with the private meeting.
Morelli’s Fault?
Kologi said it was Morelli’s duty to instruct council if he felt the executive session ran afoul of the OPMA.
Morelli has told The Trentonian he did not agree with the council’s decision to hold the private session and tried getting more clarity about council’s stated exception to OPMA.
The agenda cited two reasons for the executive session: attorney-client privilege to discuss redevelopment; and “a discussion regarding the issuance of Rice notices” related to the alleged breach of firefighter candidates’ confidential information, which falls under the personnel exception
to OPMA.
The issue arose after a law department memo to then-fire director Derrick Sawyer was inadvertently included in council’s agenda packet, Morelli said.
McBride wanted Morelli excluded from the closeddoor meeting. The council ultimately voted to allow Morelli into the executive session after he pleaded with members, audio shows.
“For the meeting record, what I indicated to council president: First of all, the resolution that was just passed does not exclude the city attorney,” Morelli said, according to audio of the meeting. “I am by statute and by code required to represent the city council and the mayor, as well as the city, and to exclude me from this meeting is improper and inappropriate, both under the statute and the code.”
Morelli offered to have assistant city attorney Peter Cohen sit in the executive session if McBride felt he was conflicted out.
“Mr. Morelli, what my preference is that I have the attorney that was selected for the body, which is Mr. Kologi, and the attorney that was selected for the redevelopment, which is Mr. Hoffman. Now I am not clear on why we’re paying three attorneys to be on staff when we are paying our attorney the sum of $84,000,” McBride said at the meeting. “I cannot understand why we have a list of attorneys on these calls when we have retained Mr. Kologi. I’m just not getting it. We can have that discussion later. But that’s where I’m with this. I just think that’s an overkill and it costs the city money every time you have this amount of attorneys on. That’s my personal opinion.” Morelli fired back. “The argument really should be why we need Mr. Kologi and why do we need Mr. Hoffman when you have the city attorney’s office? City attorney’s office are here on salary,” he said. “They don’t get paid extra to put in all this extra time. I put in a 16-hour day on Tuesday. All I asked you was, as a courtesy, whether you wanted Mr. Cohen and graciously offered to step aside.”
Audio of the public session shows Morelli never advised council it was violating OPMA by entering into closed session to discuss the redevelopment pitch.
City clerk Matthew Conlon told The Trentonian that he did not record the executive session. So The Trentonian cannot independently confirm whether Morelli advised council not to go forward with hearing Liu’s pitch once he was aware of what the redvelopment discussion centered on.
Kologi said he was never asked to research the legality of the executive session before the discussion with Liu took place, so he deferred to Morelli on that issue.
Morelli never shut down the Liu pitch during the closed session, Kologi said.
“I am absolutely being made a scapegoat,” Kologi said. “Why didn’t [Morelli] get up and say anything? ... It’s absolutely ludicrous.”
Morelli claimed he tried to shut down the executive session but McBride cut him off.
The council president cut off Morelli about something other than the OPMA issue, Kologi said.
The Trentonian read Kologi case law it cited in its letter to AG Gurbir Grewal asking him to investigate council’s apparent OPMA violations.
The Appellate Court’s decision in Nevin v. Asbury Park City Council stated, “In our view, exception b(7) [of OPMA] does not relate to contract negotiations with the opposing party but only, as plaintiffs contend, to discussions about contract negotiations by the public body.”
Kologi wouldn’t say whether he agreed with The Trentonian’s interpretation of the law that appears to implicate Trenton council with an OPMA violation.
“I have not read the cases on this issue. The law is the law,” he said. “If council is going to go into executive session on something like that, it has to fall into a legitimate exception.”
Again, Kologi said, as “head guy,” determining the answer to OPMA questions falls on Morelli.
“For him to take an outside firm and try to put the blame on them because they were in the room?” Kologi said.