Tag! You're IT!

Tonight, Trenton's governing body will, yet again, vote on a contract for IT Consulting services. It has become every bit as hot button an issue this year as it was five years ago under the Mack administration.

There have been a few articles in the local press, some good blogging by Kevin Moriarty, plus some extended commentary on social media. Here are three points that we think must be kept in mind when discussing this situation and deciding the best direction from here.

1) The shortcomings of the City of Trenton's IT system should not be blamed solely (if at all) on the current consultant, Associated Data Processing. ADPC is a vendor hired to support the city's various departments and their IT needs.

Over the years, many have commented on how the city has lagged in effectively using technology to increase the efficacy of its many operations. We've begged for more modern, up to date, services.

Is it the fault of the vendor supporting the existing systems that the city has not drafted a plan to improve the technology used or committed the resources necessary to execute a plan (if there was one)? NO!

If you know your car needs new tires, a transmission rebuild and a tune up but don't direct your mechanic to do the work and authorize the cost of same, is it the mechanic's fault that you can't get up to speed on Rte 1? NO!

If you talk about wanting to lose weight, quit smoking and get in shape with your personal physician but don't follow her suggestions on how to achieve those goals, is it her fault? NO!

Why are so many so quick to blame ADPC for the shortcomings of the Trenton's IT infrastructure?

Just read the documents included with the RFP and you'll see that in the past five years there has been few substantive discussions with either the past or current administrations about upgrading the city's IT system. Contained within in that RFP is an assessment report done, at the City's request, by the (then) current contractor, ADPC. Or we should say, a part of the report is included.

The RFP only contained 36 pages, about half, of the full assessment report. The parts that were omitted were the recommendations, evaluations of ADPCs performance, and lists of aborted or stalled projects, etc. The full report can be found here.



One example...stretching back to the Palmer administration, the city has been "ready" to implement a new computer based system for issuing parking permits and passes. This started when the current Mayor was the Director of Public Works (under whose supervision falls the Division of Transportation) and has been talked about through the Mack years and into the present.The city has yet to commit the resources (funding) to get this system up and running. That is hardly the fault of ADPC.

Another example, the city has failed to update and maintain its GIS system, rendering it somewhat less than useful.

In the full IT Assessment report, various departments rated ADPC's performance. We'll let the document speak for itself here.

2) The RFP process has, by all accounts, been seriously flawed. Flawed to the point where it certainly appears, at least superficially, that it was done in an attempt to manipulate the outcome. Let's start with the simple fact that the city's purchasing agent is not certified (nor does she have to be, by state statute, but she hasn't been able to pass the test). So how credible is the bidding process for anything when it is overseen by someone who cannot meet the requirements for certification set by the state?

With regards to the IT contract, the members of the scoring committee are somewhat suspect. Are they qualified to evaluate IT matters? Are they free of conflicts of interest and totally objective? Was the hired "professional" really able to evaluate a dozen responses from bidders in only the two hours he was paid for?

The mere fact that the administration only published part of the IT Assessment report, leaving out the solid recommendations and lack of commitment to upgrades and improvements is a pretty good indication to us that they were trying to push their shortcomings (and those of their predecessors) off on someone else.



3) It is very doubtful that FCC Consulting is truly the best firm out of all the companies that responded to the RFP. A simple review of the websites of all the companies shows a notable lack of professionalism in FCC's site when compared to the competitors. All of the other firms show at least a small staff and multi-person leadership. FCC's is obviously a one person show at the moment, run out of the principal's rented home. Not very confidence instilling.

What happens if FCC gets the contract? How quickly can he staff up to meet the demands of the work? Can he recruit people with the right skills and experience to serve what will surely be FCC's biggest client?

Does FCC have the financial wherewithal to manage this contract? Doubtful.

Mr. Carothers' business history is rather checkered. There are two judgments from 2008 and 2009 totaling almost $70,000 that are listed on the state judiciary website as still being open. Why hasn't he been able to pay these off?

The business registration for the various LLC's Mr. Carothers has created have all been suspended at one time or another for failure to file annual reports. Filing is a simple process, done online. And if your company goes out of business, you are supposed to file that as well.

Then there is Mr. Carother's personal history of bankruptcy and such. Again, not a lot to build confidence in his ability to successfully perform the important work that the city so badly needs.

So, what to do?

It is possible that there is a better company out there that can help Trenton move ahead in the IT game. There is really no way of knowing until the administration maps out a plan, on its own or with the help of a consultant, as to what it wants to achieve, when it wants to achieve it by and earmarking the funds and human resources to get it done.

For the long term, a plan must be drawn up and a timetable for implementation adopted.

In the short term, the city needs a capable IT consultant. Why not keep ADPC at least through the process of developing a strategy for moving ahead? And if not ADPC, then at least obtain the services of a truly experienced, financially stable vendor to handle the current needs.

Check please!

A little history of the salary mess in Trenton

In August of 2003, the Palmer administration put ordinances on the city council docket increasing the salary ranges for the Mayor and department heads, the city clerk and increasing the city council pay.  It was a sneaky, distasteful move on a couple of counts.

First, earlier that year, the same administration had asked department heads to cut budgets by 10% or so because of the city’s financial condition. Doesn’t make a lot of sense to cut budgets and then turnaround and grant the king’s court raises, does it?

Second, the ordinances were late additions to the docket of the single council meeting held in August.  This meant the second reading/approval would come at the first meeting in September. Coming at the end of summer when people are away on vacation and right after the Labor Day holiday when so many families are readjusting to a more regulated fall schedule, the timing of the introduction of these ordinances was obviously designed to circumvent public scrutiny and outcry.

Didn’t work. Various watchdogs, activists, etc. got wind of the ordinance’s first reading and spoke against it.  At the second reading in September of that year, a decent crowd turned out and spoke against the raises during the public hearing that proceeded the vote on the ordinances.

It was testy. Then Council President Paul Pintella was about to have one citizen removed from chambers but the speaker left of his own volition.  Another resident brought a tube of KY Jelly to the podium and asked that council at least use a lubricant before “putting it to the citizens”.  

The ordinances passed.

Another interesting development was that the ordinances for the Mayor, department heads and city clerk denoted salary ranges with annual increases over a several year period.  While not specifically prohibited, state statue does not mention salary ranges. It simply states “salaries, wages or compensation”.

§ 40A:9-165. Salaries, wages or compensation of mayor or other chief executive; officers and employees; exceptions; referendum

The governing body of a municipality, by ordinance, unless otherwise provided by law, shall fix and determine the salaries, wages or compensation to be paid to the officers and employees of the municipality, including the members of the governing body and the mayor or other chief executive, who by law are entitled to salaries, wages, or compensation.

Salaries, wages or compensation fixed and determined by ordinance may, from time to time, be increased, decreased or altered by ordinance. No such ordinance shall reduce the salary of, or deny without good cause an increase in salary given to all other municipal officers and employees to, any tax assessor, chief financial officer, tax collector or municipal clerk during the term for which he shall have been appointed. Except with respect to an ordinance or a portion thereof fixing salaries, wages or compensation of elective officials or any managerial, executive or confidential employee as defined in section 3 of the "New Jersey Employer-Employee Relations Act" P.L.1941, c.100 (C.34:13A-3), as amended, the ordinance shall take effect as provided therein. In municipalities wherein the provisions of Title 11 (Civil Service) of the Revised Statutes are in operation, this section shall be subject thereto.

Where any such ordinance shall provide for increases in salaries, wages or compensation of elective officials or any managerial, executive or confidential employee, the ordinance or that portion thereof which provides an increase for such elective or appointive officials shall become operative in 20 days after the publication thereof, after final passage, unless within said 20 days, a petition signed by voters of such municipality, equal in number to at least 5% of the registered voters of the municipality, protesting against the passage of such ordinance, be presented to the governing body, in which case such ordinance shall remain inoperative unless and until a proposition for the ratification thereof shall be adopted at an election by a majority of the voters voting on said proposition. The question shall be submitted at the next general election, occurring not less than 40 days from the date of the certification of the petition. The submission of the question to the voters shall be governed by the provisions of Title 19 (Elections) of the Revised Statutes, as in the case of public questions to be voted upon in a single municipality.

Not only were salary ranges and automatic, annual increases built in, Mayor Palmer chose to pay himself and his staff at the top of those ranges. Consistently.  The argument was made that when you have ranges, the average, qualified, competent employee should be paid at the midpoint of the range.  Someone with less than spectacular performance or a lack of experience would be paid in the lower part of the range; someone who excels at the job might expect to be paid at the higher end.  That’s common sense and good business.

The Palmer administration had no part of that. They argued that the cabinet members were all doing excellent work and must be paid as much as possible because many of the unionized employees they managed were making the same or more money.  Apparently there is some unwritten law that states the boss must make more than the employee.  And that argument was extended all the way up to the mayor.  If you inflate the department head salaries, then of course you have to raise the mayor’s. 

 To say the public was unhappy…or at least those who were paying attention…would be an understatement.

Flash forward to 2008. Not wanting to go through the hassle of having to explain the raises again, the Palmer administration illegally snuck them through via some vague language tacked onto the ratification of union contracts by city council.  It took a citizen to file a legal complaint against the city and a judge’s order to throw out those raises.  Of course, no one had to pay back the money they gained through the illegal raises.

That brings us to July 2010. Mayor Mack is sworn in and starts paying himself and his cabinet at the same rate, the top of the 2008 ranges that Palmer and company got.  Mack did this knowing the city was on the precipice of financial failure.  Mack did this while facing layoffs yet simultaneously going on a hiring spree, bringing in cronies and aides and interns and such.  Only because the ruling came down in August and was applied to the current administration did the pay scale get rolled back to the 2005 levels; the last legally passed pay raises.

A sympathetic, sentient Mayor would realize that a city with major financial issues, a city that must layoff hundreds of employees including 1/3 of the police department, can not afford to raise his salary or that of his cabinet.  Unfortunately for Trenton, Mayor Mack is neither sympathetic nor sentient.

Mayor Mack is a failed city leader. Eighteen months into his term, he has demonstrated no plan for improving public safety or economic development. He has demonstrated, repeatedly, an incredible lack of ability or will to do anything except hire and reward his friends while the city falls further and further into despair and disrepair.

Last night a very clear and strong message was sent to the mayor via the public comments at the city council meeting.  The people will not reward the continued incompetence of this administration with even the mere consideration of raising the mayor’s salary.

Bass ackwards

When you hire an employee, you usually try to hire someone with the most qualifications and/or experience pertinent to the job he or she will be doing.

At least that is the theory.

In the city of Trenton, it appears that the inverse is more the rule than the exception. The hiring policy in city hall seems to follow the old adage "it is not what you know, but who you know."

Marc McKithen, city law director, is a case in point. 

Marc is bright, well educated, and with a strong ethical bent.  He is not an expert in municipal law...especially the byzantine version followed here in NJ.  McKithen admitted as much while being questioned by city council woman Marge Caldwell-Wilson during his confirmation (advice and consent) appearance before the governing body.

Apparently, above and beyond his actual qualifications for the position, McKithen comes from a large, well-known local family.  One of his uncles gave a substantial contribution to the Tony Mack campaign.  Marc made a contribution as well.

During his brief tenure as the city attorney, Marc made some bad calls and a couple of good ones.

One notable example of the latter was McKithen's lack of understanding of the New Jersey's public purchasing laws that lead to the ADPC/Lynx IT consulting contract debacle.  It resulted in the case going before Judge Linda Feinberg, who not only decided against the city's position but gave Mr. McKithen quite the tongue lashing.  The judge was none too pleased with the city's complete abandonment of the proscribed purchasing process.

To the good, Marc McKithen famously and correctly declared the legal services contract between the city and the Cooper Levenson law firm void due to campaign contribution law (pay-to-play).  The Cooper Levenson firm is headed by Lloyd Levenson. The firm contributed significantly to the Partners for Progress political action committee that in turn gave money to Mayor Mack's campaign.  The contribution was allegedly withdrawn by the firm and repaid by the campaign although there was never any hard proof of that. 

What didn't come out at the time or in the aftermath, was that Cooper Levenson also made a $2,500 contribution to another political action committee, Trenton Thrives that in turn spent money on behalf on Keith Hamilton's campaign to become mayor of Trenton.  This also violates the city's pay-to-play law and would have disqualified the firm from doing business with the city.

Levenson himself served as a chair of the Mayor's inaugural ball. His name was featured prominently on the invitation to the event.  In most circles, that constitutes solicitation on behalf of the Mayor and thus would violate the pay-to-play law as well.

All that didn't seem to matter and the administration saw to it that council approved the contract to Cooper Levenson in the fall of 2010.  Only later, when things started getting heated in the press, did Mr. McKithen (who, it must be pointed out, was on staff but not yet the actual law director when the contract was approved) determine the contract to be null and void.

The Mayor quickly issued a follow up message stating that Mr. McKithen was wrong and that the contract was legal and in force.  As the public turned up the heat on the deal, Cooper Levenson oh so gallantly "withdrew" from the contract.

Then came the onslaught of Open Public Records Act requests.  Reportedly, the Mayor didn't like the fact that McKithen was complying with the law and releasing information to the public.  Information that demonstrated just how inept, corrupt and sloppy the Mack administration was.

Rather than clean up his act, the Mayor decided to clean house and put pressure on McKithen to resign.

McKithen has apparently given up trying to bring some semblance of law and order to the Mack administration and has tendered his resignation effective June 30.

So the guy who was trying to do the right thing is being forced out of an administration that needs all of the competency it can get.

Bass ackwards.

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-
Jackson

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
ccherry@trentonnj.org

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.

Snow storm or snow job

It’s been all over the news for the past couple of days: Monster storm set to descend upon us! Prepare for the worst.

Every year, the same thing: big storm coming!

Truth is, this winter has been an exceptionally “harsh” one with multiple, large storms. But in the end, its winter and we live in Trenton, NJ not some tropical paradise.

Most people recognize that the weather is colder, there is a chance of snow (and snow storms) and we adjust our activities and plans accordingly.

We don’t plan picnics or a lot of outdoor activities for the winter months. We dress warmly; wear gloves and hats to prevent the dire consequences of frostbite. In short, we take the steps necessary to not freeze to death.

We manage.

What we don’t do is stand out in the street or park or ball field in Bermuda shorts and t-shirts yelling up at the sky to stop the snow and begging for higher temperatures.

That would not be normal, right?

Then is it normal for Doug Palmer to spend money the city doesn’t have a hope of getting from State coffers and then complain loudly when it doesn’t come?

He does this every opportunity he gets, year in and year out. He knows there is a structural deficit in the city’s budget…a blizzard of red ink if you will, yet he consistently acts as if there isn’t. He complains when the state won’t. Palmer budgets for a lavish banquet knowing that he’s only going to be dining at the soup kitchen.

And then he stands in the middle of State Street yelling for more money.

Insane.

Now you see it

Vacant and abandoned properties have been a burden on the city of Trenton for decades.

This building, near the intersection of Market and Jackson Streets in Mill Hill has sat vacant for over twenty years. The owner wants to make it a multiple unit dwelling...which is against the current zoning for the area. Until he can get his way, he has vowed to let it sit.

Meanwhile, the same property owner maintains a business and rents apartments in the building to the left of it. And he completed renovation of a couple of other nearby properties with financial assistance from the State of New Jersey and the Trenton Downtown Association, even though he removed the original facade and left those buildings boarded and vacant for several years in the interim.

At no time has the City ever approached this property owner with demands to put this highly visible building back to productive use. And when the neighborhood association has raised the issue of this eyesore, it has been all but ignored.

A few years ago, the Palmer Administration announced it was compiling a list of all the underutilized buildings and lots in the city with an eye towards using the State of New Jersey's Abandoned Property Act to get them onto the tax roles and into productive use.

The act was signed into law in January 2004 and to date, the city hasn't published a list of properties.

An election cycle has come and gone and no list has been provided.

Various community groups and leaders have continued to ask for this list, only to be told that the Department of Housing and Economic Development is "working on it" and it should be ready "soon."

So we wait.

And buildings like these, abandoned so long that the boards are literally falling off the windows, deteriorate further with each passing month.

Well, we're waiting no more. Thanks to the efforts of the Trenton Council of Civic Association (TCCA) the community is taking an inventory of the vacant lots and abandoned properties around the city so that a list can be presented to the city.

While citizen action is to be encouraged and applauded, it is pretty telling that it is only through this type of citizen action that things might get done.

Why can't the city of Trenton come up with a list of these properties on its own?

Every workday, there are scores of Public Works, Water, Police, Fire, and Inspections employees traveling all around town. What would it take for them to take a minute and jot down an address of an abandoned property and turn it in to a central place?

That's the very method the TCCA is employing. Each neighborhood group has been asked to inventory their home turf and send the information (street address and basic description like "empty house" or "vacant lot") to TCCA President Patricia Stewart. (You can email your list to phstew517@gmail.com)

Mrs. Stewart and the TCCA are to be applauded.

Trenton's Administration is to be booed.

Once again, the taxpayers are voluntarily doing the work the public servants are paid to do.

Go figure.