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Saturday, January 28, 2017

Acting Fairfield Township CFO was fired for improperly paying herself the CFO salary instead of $12.75 per hour.

At its public meeting on February 3, 2015, the Township of Fairfield (Cumberland County) passed Resolution 62-2015 that terminated Keyanna Jones' employment with the Township.  The actual decision to terminate Jones was made during a January 20, 2015 meeting, the minutes of which are available at the above link.  According to those minutes, the decision to fire Jones was "based upon the analysis and decision found by [attorney] Steven S. Glickman" who investigated disciplinary charges against Jones and recommended that she be fired.

An Open Public Records Act (OPRA) request caused disclosure of Glickman's January 6, 2015 decision in the matter.  According to the decision, Jones attended a disciplinary hearing on December 19, 2014 to respond to charges of insubordination, conduct unbecoming a public employee, official misconduct, misuse of public property, failure to perform duties and "potential criminal charges possibly including theft, theft of public funds and/or official misconduct."

Glickman first dismissed the insubordination, misuse of public property and failure to perform duties charges after finding that there was no basis upon which those charges could be sustained.  He also dismissed the "potential criminal charges" because of want of jurisdiction.  He then merged the remaining charges into one charge alleging that "Jones paid herself at the unauthorized rate of the Chief Financial Officer's position." 

Glickman found that Jones started her employment with Fairfield in February 2014 as a part-time Land Use Board secretary and was on May 14, 2014 told by Acting Administrator Jacqueline Green that she was to be hired as Assistant Director of Finance and be paid $12.75 per hour.  Along with her other job with the Land Use Board, Jones would be working full time and thus eligible for employee benefits.  Jones countered with an offer to work the position for $17.75 per hour for 30 hours per week, but it appears that Jones ultimately accepted the position at $12.75 per hour. 

According to Glickman's decision, the Township's payroll record showed that Jones was paid during May 2014 "at the rate of the Township's former Chief Financial Officer (CFO)."  This rate of pay, presumably, is much more than $12.75 per hour and Jones being paid at this rate is central to the disciplinary charges against her.

Jones testified at her hearing that then Fairfield Mayor Viola T. Hughes offered her the CFO's position on April 17, 2014 and introduced her to the public as the Acting CFO on April 26, 2014.  She said that the Township had received state approval to allow her to work as the CFO on an acting basis provided that she obtained her state certification for that position within one year. 

Hughes, who also testified that she told Jones that she would receive the higher CFO salary only after she passed the CFO certification exam and that "she specifically told Jones that her hourly wage would remain at $12.75 while she was training for the CFO position." 

Glickman, in making his decision, heavily relied on Jones having not even attempted to contradict Hughes' testimony.  He wrote that Jones' "'silence' on certain issues speaks volumes" and ruled that Hughes' uncontradicted testimony "must be credited."  Since Jones did not deny that she was supposed to receive $12.75 per hour until she passed the CFO exam and also did not deny that "she was responsible for giving the authorization to payroll to compensate her at the CFO's salary rate." Based on this, Glickman ruled that the charges against Jones were sustained.

Turning to the proper quantum of discipline to be imposed, Glickman found that Jones betrayed the trust that the Township Administration and Fairfield residents had placed in her.  Glickman found that "while it is impossible to conclude that Jones intended to defraud the Township, there is no disputing the uncontroverted evidence that Jones intended to grant herself the CFO's salary contrary to the direction of Mayor Hughes; without Township authorization to do so; and without providing the Township's Administration with notice of same."  Given these circumstances, Glickman ruled that Jones be terminated.  He wrote: "Jones betrayed the public trust for her own benefit, and to return Jones to any position of employment with the Township would send the wrong message to other township employees."

On November 28, 2016, after I first received Glickman's decision, I wrote to Cumberland County First Assistant Prosecutor Harold B. Shapiro and furnished him with a copy of Glickman's findings.  I wrote in my letter to Shapiro that Glickman's findings "could support or at least suggest criminal charges against Jones [so] I am reporting this to you in case no one else has already reported it."  To date, I have received neither an acknowledgment nor a response from the Cumberland County Prosecutor's Office.

Thursday, July 21, 2016

Fairfield ordered to pay $93,570.57 in unpaid compensation to former employee.

In a June 30, 2016 opinion, Cumberland County Superior Court Judge Richard J. Geiger found that Fairfield Township failed to establish good cause for terminating its former Code Enforcement/Zoning Officer and was liable to the same employee for $93,570.57 in unpaid compensation, unused vacation and sick days and for fourteen hours of lunch time.

In a written decision that followed a one-day bench trial held on June 27, 2016, Judge Geiger found that Robert R. Hulitt, Sr., who worked for the Township from March 2006 until he was terminated on March 12, 2014, was not properly compensated for having worked as temporary Township Administrator from July 1, 2009 until Joseph Veight replaced him on January 1, 2011.  The court also noted that the Township violated state law by appointing Hulitt informally instead of by an appropriate authorizing resolution.

Judge Geiger found that Hulitt, who had no prior experience as an administrator, should be paid $35,000 per year for 549 days plus an additional 90 days as required by statute.  He found that since Hulitt had "no formal training or certifications for the position of municipal clerk" and could not prove that he carried out the role of the clerk, he was not entitled to additional compensation for any clerk duties performed.

The next issue the court decided was whether Hulitt was properly terminated from his position as Code Enforcement/Zoning Officer for having issued an allegedly unauthorized $508.16 check to Edward Kimley for reimbursement of an escrow deposit relating to a land use application.

Judge Geiger found that the Township failed to establish good cause for Hulitt's firing.  Therefore, since he was typically appointed as Code Enforcement/Zoning Officer for one year terms, the Township was ordered to pay him from the the date of his firing--March 13, 2014--through to December 31, 2014.

Finally, Judge Geiger found that Hulitt was entitled to be paid $19.55 per hour for 204 hours of unused vacation and sick time and for 14 hours that the court found were docked against Hulitt without justification.

Hulitt's lawsuit was filed in October 2014.

On July 7, 2016, in response to an OPRA Request, the Trico JIF (Fairfield's insurer) stated: "We have no information on any settlement.  Coverage was declined under the GL policy and also declined by Summit Risk.  The town may have handled this themselves, and you may go directly to them for any possible information."  Accordingly, the $93,570.57 appears to have been paid entirely by Fairfield Township taxpayers.

Sunday, July 3, 2016

Much of taxpayers' shouldering of Sharp's $75,000 settlement was avoidable.

Had Fairfield Township been compliant with its insurer's "Plan of Risk Management" requirements at the time of the acts that led to former Mayor Michael Sharp's lawsuit, a $20,000--rather than a $100,000--deductible would have applied.  With the lower deductible, Fairfield taxpayers would have paid $31,000 (i.e. $20,000 plus 20% coinsurance on the remaining $55,000) toward the Sharp settlement rather than shouldering the entire $75,000. 

As I wrote in an August 30, 2015 article, Fairfield (along with Elk and Upper Pittsgrove) were penalized by the Municipal Excess Liability Fund (MEL) with a higher deductible and larger coinsurance requirement due to the Township's failure have current policies on the books governing matters such as sexual harassment, employee complaint investigations and conflicts of interest and for not making claim-avoidance training available for Township officials and employees. 

As shown by the Township Committee's March 15, 2016 closed meeting minutes, the Township taxpayers had to shoulder the entire $75,000 settlement because of the $100,000 deductible and Robert A. Baxter, the Township's lawyer, warned that if the Township didn't settle, the amount could have "turn[ed] into $100,000 dollars or more."

While the wisdom of the Township's decision to settle for $75,000 is debatable, Mayor Byrd's and the Committee's need to get in the insurance carrier's good graces and lower the Township's $100,000 deductible to $20,000 is a no-brainer.

I wrote to the Township about this issue on August 31, 2015.  The last time I checked with the Township's insurer on January 5, 2016,  I learned that Paul Forlenza, the Trico JIF's Deputy Executive Director, "has had several telephone conversations with Fairfield’s Solicitor, John Carr, in regards to the necessary steps to bring Fairfield into compliance with the MEL’s Program."  But, as of June 7, 2016, Fairfield still is being penalized with the $100,000 deductible and more costly coinsurance requirements.

Friday, June 24, 2016

Wayne Byrd's lawsuit against Servais and the Township moves to binding arbitration.

On April 6, 2016, Superior Court Judge Richard J. Geiger issued an order dismissing Wayne Byrd's lawsuit against JoAnne L. Servais and Fairfield Township without prejudice.  The Court clerk's June 21, 2016 letter that accompanied the order explained that while the file was marked "settled" when the matter was called to trial on March 28, 2016, "the attorney indicated binding arbitration."  This suggests that all parties to the case have consented to privately arbitrate their claims instead of employing the court's services.

In his lawsuit, Docket No. CUM-L-539-14, Byrd claims that former Mayor and Township Committee member Servais violated the terms of a confidential settlement agreement by disclosing that he was paid a settlement amount of $72,000 and that she disparaged him by falsely stating that he "filed suit against the Township following his suspension for alleged theft."

The prior lawsuit, which bears Docket No. CUM-L-1027-08,  which alleges racially hostile and discriminatory treatment by William Ridgeway, settled for $72,500 and contained a confidentiality agreement.  It is this confidentiality agreement that Byrd accused Servais of violating in his subsequent lawsuit.

Thursday, June 23, 2016

Sharp nets $75,000 in discrimination lawsuit settlement.

On March 17, 2016, Fairfield Township paid a former mayor $75,000 to settle his lawsuit that accused another former mayor and others of calling him "boy" and referring to other members of the Township Committee as "monkeys."

In his lawsuit,former Mayor Michael Sharp accused Joanne Servais's late husband Richard and her son Joseph, along with local resident and frequent meeting attendee Russell Pierce, of violating the Township's civil rights policy by referring to Sharp as "boy" in mid-2013.  Sharp also alleges that Pierce referred to current Mayor Benjamin Byrd and his running mate, Deputy Mayor Troy L. Pitts, Sr., as "monkeys."  Sharp, Byrd, Pitts and Defendant Michael Morton are African-American while the rest of the defendants are Caucasian. He alleged that the comments "served to humiliate and degrade" him, Byrd and Pitts.

Separately, Sharp alleged that Joanne Servais maliciously prosecuted him by filing a harassment complaint against him that lacked probable cause.  He claimed that the complaint was dismissed on June 2, 2014 by the Millville Municipal Court.  Sharp alleged that Joann Servais, after the court dismissed her complaint, "began to make threats against witnesses who were present to testify" on Sharp's behalf and accused the judge of being "related in some fashion to Ms. Servais' political enemies thereby indicating that the Court was biased against her."

Sharp's lawsuit also took issue with a November 20, 2013 report by Moorestown attorney Kathleen McGill Gaskill that determined that the "boy" and "monkey" comments were insufficient to support a claim of racial harassment under the Township's civil rights policy. In his suit, Sharp calls Gaskill's report "wholly contrived," "founded upon specious analysis" and intended to exculpate Defendants.

Also named in the suit were former Committeeman Michael Morton, Don Taylor and Viola Thomas-Hughes.

The case is captioned Sharp v. Township of Fairfield, et al, Cumberland County Docket No. CUM-L-162-15 and Sharp's attorney was John C. Eastlack of Cherry Hill. Case documents are on-line here.

None of Sharp's allegations have been proven or disproven in court. Settlement agreements typically state that payment does not constitute an admission of wrongdoing by any of the defendants.  All that is known for sure is that Fairfield, for whatever reason, decided that it would rather pay Sharp $75,000 than take the matter to trial. Perhaps the defendants' decision to settle was done to save further legal expense and the costs of trying what were in fact exaggerated or meritless claims. Or, perhaps the claims were true and the defendants wanted to avoid being embarrassed at trial. This is the problem when cases settle before trial--it is impossible to know the truth of what really happened.

Wednesday, February 17, 2016

Trials upcoming for two Fairfield lawsuits.

On May 26, 2015, I posted on this blog two separate civil complaints filed by Wayne Byrd (who claimed disparagement and a breach of confidentiality) and Robert Hulitt (who claimed wrongful termination from several Township positions).  I learned today that both matters are scheduled for trial this Spring.

Byrd's trial is scheduled for Monday, March 28, 2016 and Hulitt's is on for Monday, April 25, 2016 (postponed to June 27, 2016).  Both will be heard at 9 a.m. by Judge Richard J. Geiger at the Bridgeton courthouse.  Citizens interested in observing either trial should call Judge Geiger's secretary at 856-453-4690 the day prior to ensure that the trial hasn't been adjourned.

Former Mayor Michael Sharp's March 6, 2015 discrimination lawsuit is still active and has not yet been scheduled for trial.

Local Salvage yard settled with Fairfield in 2015.

I have recently discovered that a 2014 lawsuit filed against the Township by a Ramah Road auto salvage yard and its owners settled for $40,000 in August 2015.  In their lawsuit, Robert and Michele Hoffman of Rosenhayn and B&M Auto Salvage and Towing, LLC had claimed that Township officials conspired to arbitrarily deny the salvage yard a business permit which resulted in the salvage yard breaching a sales agreement.

In addition to the $40,000 payment, the Township conceded that the Ramah Road property upon which the salvage yard sits "is appropriately zoned for use as an auto salvage yard or junkyard" and agreed to issue B&M a business license
within 30 days of the agreement.

Monday, January 18, 2016

Only two business permits issued in Fairfield during 2015

In a recent Open Public Records Act (OPRA) request, I asked Fairfield Township Clerk Linda M. Gonzalez:

I am trying to get a sense of how many "Business Permits" were issued in 2015 under Section 4-4.1 of the Township Code.  If you maintain a list of 2015 "Business Permits" issued, I would like a copy of that list.  If you don't maintain a list, please provide me with all such licenses issued in 2015.  I would think that they would be numbered sequentially as 01-2015, 02-2015 etc. all the way up to the last license issued.

In her response, Gonzalez stated: "Please see attachments - Two (2) licenses issued for 2015."

The attachments to Gonzalez's OPRA response show that the two 2015 business permits were issued to Hannah's Flea Market, LLC at 1414 Bridgeton-Millville Pike and B&M Auto Salvage and Towing, LLC at 311 Ramah Road.

Monday, January 11, 2016

Fairfield Mayor faces unlicensed home business charges.

On Monday, January 25, 2016 at 1 p.m. Fairfield Township resident Russell Pierce is scheduled prosecute four municipal court complaints against Township Mayor Benjamin Byrd and Traci Pitts-Byrd, the mayor's wife.  The complaints, which were filed on September 11, 2015, will be heard at the Cumberland Salem Regional Municipal Court on Route 77 in Seabrook.

Pierce, who resides at 376 Fairton-Gouldtown Road, accuses the mayor and his wife, who live at 368 Fairton-Gouldtown Road, of violating a local ordinance by operating a business out of their home without a license.  Byrd's 2015 Financial Disclosure Statement shows that he owns an Egg Harbor Township company called ByrdDog Paving and General Contracting while his wife owns T&B Trucking which lists an "office address" of 368 Fairton-Gouldtown Road.

The four complaints charge each Byrd and his wife with violating Fairfield Code Sections 4-4.1(d) and 4-4.1(i).  These provisions, respectively, prohibit "hacks, taxicabs, omnibuses, stages, trucks and all vehicles (horse drawn or motor) used for the transportation of merchandise, goods or chattels and of passengers for hire" and "vehicle sales, motorcycle sales, vehicle or automotive repairs, vehicle storage, automotive salvage, home business, boating sales and repair, landscape, law offices, professional offices, mining operations" from operating without a Township license.

It is likely that the code version shown at the link above is not the most current version.  And even if Pierce's allegations are true (i.e. the Mayor and his wife have asphalt trucks on their property), it is not clear, for the reasons stated in my September 10, 2015 article, whether such constitutes a violation of the ordinance.  Hopefully, the municipal court's decision will provide some clarity.

Friday, October 16, 2015

More on the Hatch Act and the Fairfield Township Committee ballot.

After speaking with Ana Galindo-Marrone, Chief of the Hatch Act Unit of the Office of Special Counsel and doing some more research, I've come to understand that the while the Hatch Act states that federal employees are disallowed from making a "run for the nomination or as a candidate for election to a partisan political office," the prohibition does not disqualify a federal employee from running for office.  Rather, it visits consequences on the employee if he or she does run.  For a good discussion on this issue, see Judge Joseph E. Irenas' opinion in Merle v. United States, 217 F. Supp. 2d 560 (D.N.J. 2002).

Stated another way, if a federal employee were, for example, to run for county freeholder, neither state nor federal officials could declare the employee disqualified from running, or even from serving in office if he or she was elected.  Rather, the federal Office of Special Counsel could bring charges (up to and including terminating) against the employee for violating the Hatch Act's prohibition.  Those charges would be adjudicated before the Merit Systems Protection Board.

Against this backdrop, it would appear that David Gonzalez was not "ineligible to run for office," as I stated in my original blog article.  Rather, he appears to have been "eligible" to run and, after having won the primary, his decision to withdraw and the Fairfield Democratic Executive Committee's (FDEC) decision to replace him with Bernard Manson may have been appropriate.

There is still a question regarding whether Gonzalez withdrew from office promptly enough to avoid disciplinary action by the Office of Special Counsel.  And, I haven't researched whether the FDEC handled the replacement of Gonzalez with Manson in a manner consistent with N.J.S.A. 19:13-20.