Friday, May 06, 2011

Another unqualified appointee.

No, this isn’t about Paul Sigmund IV’s brief tenure as Chief of Staff/Deputy Mayor for the City of Trenton.

Not directly.

This is about Mayor Mack’s choice for law director, Marc McKithen.

At first glance, Mr. McKithen might seem a perfect candidate to be tapped to head up the city’s law department. He grew up here, he’s from a large and well-known and respected Trenton family, he graduated from the city's Young Scholar's Institue, Rider University, University of North Carolina-Chapel Hill and Benjamin N. Cardozo School of Law, Yeshiva University

Besides being general counsel for the family business, Kelly’s Janitorial Service, Inc, he was an associate at the Manhattan firm of Milbank, Tweed, Hadley & McCloy. And by his own admission has little expertise in municipal law. His experience, you see, was in corporate matters, specifically intellectual property…patents and such.

While there are some basic similarities to the various disciplines of the legal profession, there are also very great differences. There are areas of arcane knowledge that are of little use or consequence unless you are working in a specific area of the law.

Municipal law, especially here in New Jersey, is a fairly specialized field. The basic form and procedures may be the same for all areas of law, but the details and minutiae (and isn’t that really what law deals with mostly) are what separates them.

If you are having trouble grasping this, think of the medical profession. The basic biology of the human body is the same, but do you want a podiatrist to perform cataract surgery on you?

So we have a corporate law guy sitting as the de facto legal expert for the city of Trenton. He is supposed to provide good counsel to the administrative and legislative branches of the government so we, as a city, don’t get into trouble.

Mr. McKithen has not only admitted on the record during his advise and consent hearing that he had limited experience in the practice of municipal law, he has demonstrated it.

The inept and irresponsible handling of the city’s information technology (IT) consulting contract is but one example. Even when the errors in the city’s process were pointed out, McKithen allowed the council to illegally choose an unqualified vendor over a qualified one. This cost the city time and money to unsuccessfully defend itself in court.

To his credit, Mr. McKithen did pull the plug on an outside legal contract to the Cooper Levenson law firm after it was discovered and loudly made public that the firm had violated the city’s pay-to-play ordinance. But while he gets the nod for doing so, it should also be pointed out that he was on staff at the time that the contract was repeatedly brought up for council to approve and he never advised against it….EVEN WHEN MEMBERS OF THE PUBLIC POINTED OUT WHY IT SHOULD NOT BE GRANTED!

These are just two examples of Mr. McKithen’s inexperience leading to bad decisions.

Just this week, when faced with the Sigmund saga and with the administration seemingly unable to make a stand up decision on the man’s employment status, McKithen has failed again.

City Council, for once, seemed poised to act as a responsible and thinking body by beginning the process of removing Mr. Sigmund from the city’s employ. Colin Cherry, a city employed “management assistant,” after consulting with McKithen circulated a memo to members of city council, the business administrator declaring that the governing body does not have the authority to remove from office the Chief of Staff/Deputy Mayor since they did not have advise and consent power over the appointment to that position.

From: "Colin Cherry"

Date: Wed, 4 May 2011 13:08:39 -0400

To: Zachary Chester; Alex Bethea;

George Muschal; Kathy McBride; Marge Caldwell-Wilson; Phyllis Holly-Ward; Verlina Reynolds-

Cc: Baylor, Leona; ; 'Eric Berry'; McKithen, Marc

Subject: Removal of a Municipal Officer by Council

Good afternoon,

I just wanted to reach out to clarify the powers of removal that are granted to City Council.

Following my discussions with the Director of Law, I am providing the following clarifications.

City Council does not have the authority to remove deputy mayors (including the Chief of Staff), mayoral aides, or the Mayor’s personal and executive secretaries. These positions are appointed by the Mayor and can be removed at his discretion pursuant to State statute (N.J.S.A. 40:69:A-60.1) copied below.

The mayor of any municipality having a population of more than 80,000, but less than 300,000, which, prior to January 9, 1982, had adopted the form of government designated as "Mayor-Council Plan C" provided for in article 5 of P.L.1950, c.210 (C.40:69A-55 et seq.), may appoint one or two deputy mayors, a personal secretary, an executive secretary, and aides not exceeding seven in number, who shall serve and be
removable at the pleasure of the mayor, and who shall serve in the unclassified service of the civil service of the municipality and shall receive such salary as shall be fixed by the mayor.

City Council does, however, have the ability to remove, with cause, Department Directors, the Business Administrator, or any other position that requires the advice and consent of Council. To do so requires a two-thirds majority (5 votes). The Department of Law is currently investigating whether or not there are any other positions that may fall under City Council’s purview to remove, however no additional positions are believed to fall under Council’s authority at this time.

Thank you and please let me know if you have any further questions.


Colin Cherry
City of Trenton
Management Assistant
319 East State Street
Trenton, NJ 08608
(609) 989-3532

When consulted on the matter, noted local attorney and former city law director George Dougherty offered up a two page opinion contradicting Mr. Cherry’s assertion. This opinion was sent to Mr. McKithen.

Mr. Dougherty's cover letter that accompanied his opinion reads in part:
My opinion is that the City Council’s powers under NJSA 40:69A-37 expressly apply to “any municipal officer” other than the Mayor and a Council member. Attached is my explanation and supporting authority. The fact that the mayor can appoint a deputy (and some other officers) without council advice and consent and can remove, does not equate to the City Council has no authority to remove. It has it clearly under Section 37. See attached.

Mr. Cherry’s opinion adds something to Section 37 which does not appear in print. There is no requirement in the published portion of that section which limits Council’s removal power over “any municipal officer” to those officers whose appointment is subject to Council’s advice and consent. If he has a citation to that requirement I would be happy to reconsider.
Yet, when asked at Thursday night’s council meeting for an opinion on the body’s power to remove public officials, Mr. McKithen responded that the council’s authority did not extend to the chief of staff. His contention is that if they don’t approve (through advise and consent) the appointment, they cannot remove the appointee.

Well Mr. McKithen, we think you may be wrong.

There is one thing that we agree upon…council had to approve your appointment and so they have the power to remove you.

And they should.

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