One of the most bizarre aspects to this very bizarre week was the Wednesday evening Press Release when Mayor Mack, “Esquire,” offered his considered legal opinion that the decision made by City Attorney Marc McKithen to void the outside contract of Atlantic City law firm Cooper Levenson was incorrect. According to Mayor Mack, who clerked for US Chief Justice Warren Burger when he was in law school (OK, I made that up. Mack’s not a lawyer!), “I carefully examined this unprecedented situation, and my preliminary opinion is the Cooper Levenson law firm did not violate the Trenton Pay-to-Play Ordinance.”
As a result of this “preliminary opinion,” City Hall has tried to spin the news to mean that the Mayor “reversed” McKithen’s ruling, according to an article in Wednesday’s New Jersey Law Journal (registration required), or that at the very least, according to today’s Times, “City council and Mayor Tony Mack were locked in a struggle last night over who can decide whether to throw out a $50,000 contract to the Atlantic City law firm Cooper Levenson over its alleged violation of Trenton’s pay-to-play ordinance.”
One person who believes there is no controversy to this matter is former City Attorney and Trenton resident George T. Dougherty. He believes that Law Director McKithen was well within his authority to cancel the contract, and that Mayor mack has no authority – statutory, moral or otherwise, to overrule him. Here are excerpts from a message Dougherty – who after all worked for the Mack election campaign as a special counsel – sent to all members of City Council (emphasis mine):
The City Attorney is not the subordinate of the Mayor when it comes to legal decisions. The Faulkner Act makes the City Attorney the source of legal advice to both branches of government (Mayor and Council)… The City Attorney decides what the law is and resolves legal issues in disputes among Council members and between Council and the Mayor. The City Attorney is the closest thing to the “judicial branch” if we are to compare the City to the State or Federal governments…
The Faulkner Act protects the City Attorney against undue pressure by one branch or the other, by making it necessary for the Mayor to get confirmation of the appointment, and by allowing the termination to be overridden by a 2/3 vote of Council…
Bottom line: the Mayor is bound by the City Attorney’s legal opinion, and has no veto power over it. He can terminate him, but Council can block that if there are five votes to do so. He cannot even direct the City Attorney to use special counsel. That is the decision of the City Attorney under the charter, unless it is one imposed on him by the Court due to conflicts of interest (in which case the mayor makes the appointment).
As for C-L suing to enforce its contract, the City should not concern itself with that. The City, as a client of a law firm, can discharge the law firm at will, owing only for services rendered and expenses incurred to date. No lawyer can force a client to maintain his services. Any attorney can be terminated without repercussion by any client at any time…
It is also worth mentioning that the Ordinance makes it the City Attorney’s decision whether to appoint or not appoint a task to a special counsel, and that cannot be a decision by the Mayor…
Coming from a guy who was the City Attorney of Trenton for 15 years, in a sane world That Would Be That!
Mayor Mack and perhaps his friends at Cooper Levenson (Hey, who do you think really wrote that Press Release on Wednesday: The Mayor? Lauren Ira?? Give me a break!) are trying to bamboozle the public and intimidate City Council into backing the Mayor’s play. That there is to be any further consideration of this issue at all at the next City Council meeting is a sign that Council is being swayed by the Mayor and the law firm.
The Mayor’s announcement on Tuesday, and the continuing confusion on the matter, is almost like our very own, small-town version of a Coup in slow motion, as the Mayor tries to co-opt the lawful authority of his own Law Director (the ink on his appointment is hardly dry, for crying out loud!) and City Council. Nothing good can come of that.
When all is said and done about this, it is still remarkable to me that this is about a relatively small $50,000 contract. The Mayor, and the Law Firm are acting as if much bigger issues are at stake.
Perhaps they are. What might those be?
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