Plaintiff Wayne Kubs, by way of Verified Complaint in Lieu of Prerogative

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1 joate Filed C. ELSTON & ASSOCIATES, LLC 3350 Hwy 138 Bldg 2, Suite 123 Wall, New Jersey (732) fax (732) Attorneys for Plaintiff Wayne Kubs WAYNE KUBS, Plaintiff, vs. BOROUGH OF RUTHERFORD, RUTHERFORD MAYOR JOSEPH DESALVO, individually and in his official capacity, RUTHERFORD COUNCIL MEMBER KIM BIRDSALL, individually and in her official capacity, RUTHERFORD COUNCIL MEMBER MICHAEL SARTORI, individually and in his official capacity, RUTHERFORD COUNCIL MEMBER RAY TETRO, individually and in his official capacity, RUTHERFORD COUNCIL MEMBER FRANK NUNZIATO individually and in his official capacity, RUTHERFORD COUNCIL MEMBER JACK MANZO, individually and in his official capacity, RUTHERFORD COUNCIL MEMBER MARK O'CONNOR, individually and in his official capacity, RUTHERFORD POLICE CHIEF JOHN RUSSO individually and in his official capacity, and the CIVIL SERVICE COMMISSION, STATE OF NEW JERSEY CA (CK Amount Payor :C MQ CG Balch/Ref/Case # ^ ^ - ^ ^ SUPERIOR COURT OF NEW JERSEY LAW DIVISION BERGEN COUNTY DOCKET NO.: L " 76/V CIVIL ACTION VERIFIED COMPLAINT IN LIEU OF PREROGATIVE WRITS/WRIT OF MANDAMUS Defendants. Plaintiff Wayne Kubs, by way of Verified Complaint in Lieu of Prerogative Writs/Writ of Mandamus, says:

2 PRELIMINARY STATEMENT 1. Civil service statutes and regulations mandate the hiring of disabled veterans and veterans from a civil service appointment list in the order of ranking. N.J.S.A. 11 A:5-6. The statute is relevant in this action as three veterans, ranked 1, 2 and 3 on the civil service list for the position of police officer were all bypassed for appointment in favor of lower ranking candidates. One of the lower ranking candidates, at number 13, was the Mayor's nephew. 2. Despite the obvious conflicts of interest in voting to approve the appointment of individuals and the bypass of others that would serve to pave the way for a family relative, the Mayor abused the power entrusted to him as an elected official by deliberately disregarding the law to participate in a hiring process that would benefit his nephew. More egregious, however, is that not one council member opposed the Mayor's blatant breach of ethics that resulted in three of this Country's veterans improperly being bypassed for hiring. PARTIES 3. Plaintiff, Wayne Kubs, is a veteran of the United States military and as such, is classified as a veteran by the Civil Service Commission of this State. 4. Defendant Borough of Rutherford, ("Borough"), is a municipal corporation of the State of New Jersey with principal offices located at 176 Park Avenue, Rutherford, New Jersey. 5. Defendant DeSalvo is currently, and was, at all times relevant to the Complaint, the Mayor of Defendant Borough. 2

3 6. Defendant Birdsall is currently, and was, at all times relevant to the Complaint, a Council Member of Defendant Borough. 7. Defendant Sartori is currently, and was, at all times relevant to the Complaint, a Council Member of Defendant Borough. 8. Defendant Tetro is currently, and was at all times relevant to the Complaint, a Council Member of Defendant Borough. 9. Defendant Nunziato is currently, and was at all times relevant to the Complaint, a Council Member of Defendant Borough. 10. Defendant Manzo is currently, and was at all times relevant to the Complaint, a Coimcil Member of Defendant Borough. 11. Defendant O'Connor is currently, and was at all times relevant to the Complaint, a Council Member of Defendant Borough. 12. Defendant Russo is currently, and was at all times relevant to the Complaint, the Police Chief for Defendant Borough. 13. Defendant Civil Service Commission is a State Agency of the State of New Jersey with offices located at 44 South Clinton Avenue, Trenton, New Jersey. FACTS RELEVANT TO ALL COUNTS 14. Defendant Borough is a civil service municipality. 15. Defendant Borough's ordinance confers upon the Mayor the authority to make appointments to the position of police officer. Rutherford Borough Ordinance Article I, "General Provisions," Chapter 76-2, "Nominations and Appointments," states, "The Mayor shall nominate and, with the advice and consent of the Council, appoint the Chief of Police, the Captains of Police, the Lieutenants 3

4 of Police, the Sergeants of Police, Detectives of the Police, and ail patrolmen and other employees of the Police Department." (Exhibit A) 16. Defendant Borough enacted an ordinance that prohibits its public officials from acting in matters where they have a conflict of interest. Rutherford Borough Ordinance Chapter 31, "Code of Ethics," Section 6, "Conflicts of Interests," states, in part, (B) Any public officer or employee who has a substantial interest in any decision of, or matter under review by any board, administrative official, commission or legislative or administrative body of which he is a member or to which he makes recommendations, shall make known such interest in the official records of such body and shall refrain from participating in any manner as an officer or employee in such decision or matter under review. (C) No public officer or employee shall knowingly engage in any business or transaction, accept private employment, or have any financial or other personal interest, direct or indirect, which is incompatible with the proper discharge of his official duties in the public interest or would tend to impair his independence of judgment or actions in the performance of his official duties. (Exhibit B) 17. Defendant Borough enacted an ordinance requiring compliance with State law as to the hiring of veterans. Rutherford Borough Ordinance Article 1, "General Provisions," Chapter 76, Section 3, "Membership Requirements," sets forth the requirements for a position as a Borough police officer. Paragraph A(2) of this section states, "Duly qualified applicants who are veterans shall be accorded all such veterans' preference as are provided by law." (Exhibit C) 18. The legislature has addressed the hiring of veterans in civil service municipalities via N.J.S.A. lla:5-6, "Appointment of Veterans," which states, 4

5 "Whenever a disabled veteran or veteran shall be certified to an appointing authority from an open competitive employment list under the provisions of N.J.S. 1 la:4-8, the appointing authority shall appoint the disabled veteran or veteran in the order of ranking." 19. Plaintiff successfully passed an open competitive written Civil Service examination for the position of police officer and ranked number three on Civil Service Commission Certification Number OL140583, ("List"), for the Borough of Rutherford, (Exhibit D) Both the number 1 and 2 ranked individuals on the same certification were designated by the Civil Service Commission as disabled veterans. Id. 20. As a veteran of the United States military, all three veterans, including Plaintiff, have veteran status under this State's Civil Service statutes and regulations. (Exhibit D) Plaintiffs hiring must, therefore, comply with N.J.S.A. 11 A: On or about June 25, 2014, Defendant Borough voted to appoint six individuals on the List as police candidates. In doing so, Defendant Borough bypassed/disqualified all three veterans ranked 1,2 and 3 and appointed those ranked 4, 7, 10, II, 12, and Of the six appointments the Borough approved was the Mayor's nephew, James F. Fecanin, ("Fecanin"), at number 13, the lowest ranking individual to be appointed. 23. The other five appointments include two individuals who, upon information and belief, are related to officers currently on the Rutherford Police Department: Christopher Beatini, ("Beatini"), ranked 7, is the brother-in-law of 5

6 Rutherford Police Sergeant David Dovalo; and, John Ahearn, ("Aheam"), ranked 12, is the cousin of Rutherford Police Officer Scott Ahearn. 24. Neither Fecanin, Beatini nor Aheam could have been appointed without the bypass/disqualification of higher ranked individuals: In order for Defendant DeSalvo's nephew, Fecanin to be hired, at least seven higher ranked individuals had to be bypassed/disqualified. 25. Prior to the selection and appointment of the six candidates. Defendant Borough conducted background investigations of the candidates, including Plaintiff. Plaintiff was advised by Detective Sergeant Anthony Nunziato of when his background investigation was completed. 26. The minutes of the Borough's meeting of June 10; 2014 reflect, in part, Defendant DeSalvo's assertion that police appointments had to be made at the Councirs next meeting. (Exhibit E) The minutes further reference the necessity of a discussion at the next Council meeting conceming the police candidates. The meeting minutes state, "Mayor DeSalvo stated they had a recommendation of six officers for the next academy so if anyone had any questions then or at the next Council meeting knowing that at the next Council meeting a decision had to be made." Although not set forth in a Borough ordinance as part of the police appomtment process, interviews of the candidates were thereafter scheduled to take place. 27. On June 18, 2014, Plaintiff arrived for his interview and appeared before a committee consisting of eight individuals, including Defendant DeSalvo, Defendant Nunziato, Defendant Russo, a Rutherford police captain and four 6

7 Rutherford police detectives including Detective Sergeant Anthony Nunziato, who is Defendant Council Member Nunziato's brother. 28. Before the interview commenced, the Mayor congratulated Plaintiff for making it to the interview stage stating that only fourteen (14) individuals who had background investigations conducted had advanced to the interviews. Plaintiff completed the interview and left. 29. On June 25, 2014, Defendant Borough voted to select the six candidates. Upon information and belief, defendant Russo made recommendations for the position. The June 25^'^ meeting minutes indicate that Councilman Nunziato, who participated in the interviews of the candidates, recommended the individuals to the six appointments. In order to appoint these individuals, it was necessary to also approve the bypass/disqualification of those ranked higher who preceded them on the List. (Exhibit F, at 16). The minutes reflect that the Mayor participated in the voting process and appointed each candidate with the exception of his nephew, where the minutes reflect that the Mayor "rescused" himself. Id. at 18. The minutes further state, "Mayor DeSalvo thanked Chief Russo, his Detectives, as they did a phenomenal job during all aspects of the interview process for new Police Officers." Id. page Plaintiff was not among the six appointed. As Plaintiff was deemed qualified for the position after a full background investigation, the only basis for Defendants' actions in bypassing/disqualifying Plaintiff is the interview, which the Mayor attended. 7

8 31. Defendant DeSalvo's actions in approving and appointing lower ranked individuals and, therefore, approving the bypass/disqualification of seven higher ranked individuals, including all three veterans, paved the way for his nephew to be reached for the final appointment. 32. The Borough's meeting minutes are barren of any indication that the Mayor recused himself from any discussions among the council members conceming the appointments. In fact, the evidence indicates that the Mayor took an active role in the selection of the individuals for appointment: first, by participating in the interview process which was the determinative factor in who was chosen for appointment and who was bypassed. Then, by participating in the voting process with the exception of his nephew, who was the lowest ranked individual to be appointed, and who could not have been appointed at all without the bypass/disqualification of seven others, including Plaintiff. 33. The Mayor's failure to recuse himself from the appointment and hiring process due to his conflicts of interest tainted the entire proceeding thereby rendering the appointments to be null and void and without effect. The additional participation of Defendant Russo was also improper due to the appearance of impropriety by his recommendation for appointment individuals from a list that included relatives of those officers with whom he has a professional and/or personal relationship. 34. Not only did the Mayor and Police Chief taint the entire appointment process rendering it null and void and without effect, but the appointment process itself violated civil service statutes thereby further rendering the Borough's actions 8

9 improper and unlawful and, therefore, arbitrary, capricious and unreasonable as a matter of law, COUNT ONE Violation of N.J.S.A. lla:5-6, "Appointment of Veterans" 35. Plaintiff repeats and reasserts paragraphs 1-34 as if fully set forth herein. 36. Civil Service statute, N.J.S.A. lla:5-6, "Appointment of Veterans," requires the hiring of all disabled and non-disabled veterans in order of ranking on a civil service list. Here, those ranked 1, 2 and 3 on the civil service list in effect at that time were all veterans. Those individuals ranked 1 and 2 were disabled veterans. Plaintiff was ranked third. Defendants appointed six but bypassed/disqualified Plaintiff in violation of statute. 37. Defendants' violation of N.J.S.A. lla:5-6 renders the Defendants' actions in appointing six individuals, including the Mayor's nephew and two relatives of current police officers, null and void and without effect as arbitrary, capricious and unreasonable. WHEREFORE, Plaintiff Wayne Kubs demands judgment for the following relief: (a) Declaring null and void the selection/appointment of police officer candidates Thomas Steinel, Jr., Christopher Beatini, Kathleen Ervelli, Fuad Lindov, John F. Aheam, and James J. Fecanin, on or about June 25, 2014, from Civil Service Certification Number OL140583; 9

10 (b) Declaring Defendants Borough of Rutherford, DeSalvo, Birdsall, Sartori, Tetro, Nunziato, Manzo and O'Connor's offer of employment to Thomas Steinel, Jr., Christopher Beatini, Kathleen Ervelli, Fuad Lindov, John F. Aheam, and James J. Fecanin, for the position of Borough police officer, null and void and without effect; (c) Declaring Defendant Russo's recommendations for appointment null and void and without effect; (d) Preliminarily restraining and enjoining, during the pendency of this action. Defendants Borough of Rutherford, DeSalvo, Birdsall, Sartori, Tetro, Nunziato, Manzo and O'Connor, from any involvement in the selection/recommendation/appointment process for the position of Borough police officer, and preliminarily restraining and enjoining, during the pendency of this action, Defendant Russo from any involvement in the selection/recommendation process for the position of Borough police officer; (e) Declaring Defendant Borough of Rutherford, DeSalvo, Birdsall, Sartori, Tetro, Nunziato, Manzo and O'Connor's by-pass/ disqualification of Plaintiff for appointment to the position of Borough police officer null and void and without effect; (f) Preliminarily and permanently enjoining Defendants DeSalvo and Russo from participating in the selection/recommendationyappointment process of police candidates 10

11 from Civil Service Certification Number OL due to a conflict of interest and appearance of impropriety pursuant to the Local Government Ethics Law, N.J.S.A. 40A:9-22.1, et. seq., common law conflicts of interest, and Borough Ordinance, Chapter 31, "Code of Ethics"; (g) Restoring Plaintiff to the eligibility list for police officer and ordering his appointment to the position of Borough of police officer in accordance with those State laws pertaining to veterans' preference including but not limited to N.J.S.A. 11 A:5-6; (h) Restraining the Civil Service Commission, during the pendency of this lawsuit, from approving or otherwise acting on the Borough's disposition of Certification list Number OL140583; (i) Granting plaintiff attorneys' fees and costs. COUNT TWO Violation of the Local Government Ethics Law, N.J.S.A. 40A: Violation of Common Law Conflict Laws Violations of Borough Ordinance, Chapter 31, "Code of Ethics" 38. Plaintiff repeats and reasserts paragraphs 1-37 as if fully set forth herein. 39. Defendants DeSalvo and Russo's participation in the recommendation and appointment process for police officers in the Borough, while possessing conflicts of interests due to family members and/or friends being in contention for the appointments, violated their duties under the Local Government 11

12 Ethics Law, N.J.S.A. 40A:9-22.1, common law conflicts law, and Borough Ordinance, Chapter 31, which all required their recusal. By failing to recuse themselves, the entire appointment process, including the appointments themselves, suffer from an irrevocable taint and must, therefore, be set aside as null and void and without effect. WHEREFORE, Plaintiff Wayne Kubs demands judgment for the following relief: (a) Declaring null and void the selection/appointment of police officer candidates Thomas Steinel, Jr., Christopher Beatini, Kathleen Ervelli, Fuad Lindov, John F. Aheam, and James J. Fecanin, on or about June 25, 2014, from Civil Service Certification Number OL140583; (b) Declaring Defendants Borough of Rutherford, DeSalvo, Birdsall, Sartori, Tetro, Nunziato, Manzo and O'Connor's offer of employment to Thomas Steinel, Jr., Christopher Beatini, Kathleen Ervelli, Fuad Lindov, John F. Ahearn, and James J. Fecanin, for the position of Borough police officer, null and void and without effect; (c) Declaring Defendant Russo's recommendations for appointment null and void and without effect; (d) Preliminarily restraining and enjoining, during the pendency of this action. Defendants Borough of Rutherford, DeSalvo, Birdsall, Sartori, Tetro, Nunziato, Manzo and O'Connor, from any involvement in the selectionyrecommendation/appointment process for the position of Borough police officer, and preliminarily 12

13 restraining and enjoining, during the pendency of this action, Defendant Russo from any involvement in the selection/recommendation process for the position of Borough police officer; (e) Declaring Defendant Borough of Rutherford, DeSalvo, Birdsall, Sartori, Tetro, Nunziato, Manzo and O'Connor's by-pass/ disqualification of Plaintiff for appointment to the position of Borough police officer null and void and without effect; (f) Preliminarily and permanently enjoining Defendants DeSalvo and Russo from participating in the selection/recommendation/appointment process of police candidates from Civil Service Certification Number OL due to a conflict of interest and appearance of impropriety pursuant to the Local Government Lthics Law, N.J.S.A. 40A:9-22.1, et. seq., common law conflicts of interest, and Borough Ordinance, Chapter 31, "Code of Lthics"; (g) Restoring Plaintiff to the eligibility list for police officer and ordering his appointment to the position of Borough of police officer in accordance with those State laws pertaining to veterans' preference including but not limited to N.J.S.A. 11 A:5-6; (h) Restraining the Civil Service Commission, during the pendency of this lawsuit, from approving or otherwise acting on the Borough's disposition of Certification list Number OL140583; 13

14 (i) Granting plaintiff attorneys' fees and costs. C. ELSTON & ASSOCIATLS, LLC Attorneys for Plaintiff Wayne Kubs Catherine M. Listen Dated: i CERTIFICATION PURSUANT R. 4:5-1 Pursuant to and in accordance withr, 4:5-l(b)(2), the undersigned, attorneys for Plaintiff, hereby certify that the matter in controversy is not the subject of any other action pending in any Court. I hereby certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment. C. ELSTON & ASSOCIATES, LLC Attorneys for Plaintiff Wayne Kubs Catherine M. LIston Dated: % ^ Catherine M. LIston, Esq. is hereby designated as trial counsel for the Plaintiff in the within matter. DESIGNATION OF TRIAL COUNSEL 14

15 CERTIFICATION IN LIEU OF AFFIDAVIT OF VE3IIFICATION F Wayne Kubs, bdng of full age, hereby certify as followi;: I am the plaintiff in the above-entitled action. As suck 1 am fully familiar wvh all of the facts of this case and am authorized to make this Certification. The facts sit forth in the Complaint are true to the best of my knowledge and k ilief Dated: 10