NATURE OF THE ACTION 1
.
This action is brought pursuant R. 4:69-1 , ef seq. and N.J.S.A. 2A;16-51,
ef seg., and seeks a declaratory judgment and injunctive relief with respect to the Defendants' unlawful adoption of Ordinance 2014-1 (also referred to herein as the "Ordinance"), which is a so-called "Responsible Bidder Ordinance," purporting to require inter alia those seeking to bid on and be awarded a municipal contract with the Borough of Belmar either to have an apprenticeship and training program approved by and registered with the U.S. Department of Labor's Bureau of Apprenticeship and Training, or agree to pay all workers on the project at least a journeyman's wage. After introducing an initial version of the proposed Ordinance, publishing its content in full in
the Borough's official newspaper, and posting a copy of the proposed ordinance on the Borough's website on the Friday before the final hearing on the Ordinance, Defendant Doherty introduced a substantial change to the Ordinance immediately before opening the public hearing on the Ordinance, and the Mayor & Council proceeded that evening to finally adopt the Ordinance as revised without re-advertising or re-posting the revised Ordinance, contrary to N.J.S.A. 4O:49-2c. The Defendants' actions deprived Belmads citizens
of
proper notice of and reasonable opportunity to address those substantial
changes to which they are entitled under N.J.S.A. 4O:49-2c, and were othelwise arbitrary, capricious and ultra vires.
2.
This action also seeks a declaratory judgment and injunctive relief against
the Defendants Borough of Belmar and Mayor and Council as to Ordinance 2014-1 and Resolution 2O14-105, which awarded the bid to re-build Belma/s Fifth and Tenth Avenue Pavilions to Epic Management, lnc. ("Epic"), because Defendant Doherty had a
2
conflict of interest when he participated in the consideration and preparation of the original version of the Ordinance, when he participated in preparing revised language for the Ordinance, and when he voted to finally approve the adoptíon of the Ordinance without re-advertising the revised version and holding a second hearing on the revised language as required by N.J.S.A. 40.49-2c, and when he voted to adopt Resolution 2014-105, awarding the contract to build the pavilions to Epic. Defendant Doherty had
a conflict of interest because the Ordinance, both as originally prepared and as revised, gives an anti-competitive bidding advantage to Epic and other signatory contractors associated with the Laborers lnternational Union of North America (hereinafter "LlUNA") and the Laborers-Employers Cooperation and Education Trust (hereinafter "LECET"),
which at all times relevant to this litigation have directly or indirectly been clients of Mayor Doherty's wife and her public relations firm.
3.
Plaintiffs seek the following declaratory, injunctive, and other relief:
a.
Plaintiffs seek a Judgment against the defendants declaring
that Borough of Belmar Ordinance 2014-1is invalid because the defendants violated N.J.S.A. 4O:49-2c in adopting the Ordinance.
b.
Plaintiffs seek a Judgment against the defendants declaring
that Borough of Belmar Ordinance 2014-1is invalid because Mayor Doherty had an actual or potential conflict of interest when he voted to approve the Ordinance, rendering the Ordinance void ab initio.
c.
Plaintiffs seek a Judgment against the defendants declaring
that the adoption of Ordinance 2014-1 was arbitrary, capricious and ultra vires.
3
d.
Plaintiffs ask this Court to enjoin the Borough of Belmar from
soliciting bids, awarding contracts and entering into municipal contracts pursuant to Ordinance 2014-1
e.
.
Plaintiffs seek a Judgment against the defendants declaring
that Borough of Belmar Resolution 2014-105 is invalid because Mayor Doherty had an actual or potential conflict of interest when he voted to approve this Resolution. f
.
Plaintiffs ask this Couft to enjoin the Borough of Belmar from
soliciting bids, awarding contracts and entering into municipal contracts pursuant to Resolution 2014-105.
g.
Plaintiffs ask this Court to award them reasonable attorney's
fees and costs. PARTIES
Plaintiffs
4.
Plaintiff Joy DeSanctis is a Belmar taxpayer who lives at 101 Sixth
Avenue, Belmar, New JerseY O7.719.
5.
Plaintiff Richard Wright is a Belmar taxpayer who lives at 4 lnlet Terrace,
Belmar, New JerseY O7719.
6.
Plaintiff Kimberly Paterson is a Belmartaxpayerwho lives at2O8 Second
Avenue, Belmar, New JerseY O7719.
7.
plaintiff William Straus is a Belmar taxpayer and season beach badge
holder of the Borough of Belmar who lives at 1218 Oakwood Road, Belmar, New Jersey 07719.
4
8.
Plaintiff Vincent T. Ehmann, Jr. is a registered voter and a beachgoer of
the Borough of Belmar who lives at 1218 Oakwood Road, Belmar, New Jersey 07719-
g.
Plaintíff Patricia Corea is a Belmar taxpayer and season beach badge
holder of the Borough of Belmar, who lives at 303 Ocean Avenue, Belmar, New Jersey 07719.
10.
Plaintiff Vincent Dispoto is a Belmar taxpayer and season beach badge
holder of the Borough of Belmar who lives at 1 10 Fifth Avenue, Belmar, New Jersey o7719.
11.
Plaintiff Arlene Haas is a Belmar taxpayer and season beach badge
holder of the Borough of Belmar who lives at 1800 A Street, Belmar, New Jersey 07719.
12.
Plaintiff Robert Ricca is a season beach badge holder of the Borough of
Belmarwho lives at 1800 A Street, Belmar, New Jersey 07719. Defendants
13.
The Defendant Borough of Belmar is a public entity and a municipal
organization existing and operating under the laws of the State of New Jersey, whose principal business address is 601 Main Street, Belmar, Monmouth County, New Jersey o7719.
14.
The Defendant Mayor & Council of the Borough of Belmar is comprised of
the duly elected representatives of the Borough of Belmar, and is authorized to act on
the Borough's behalf in accordance with applicable law.
15.
Defendant Mayor Matthew Doherty is the mayor of the Borough of
Belmar and his office is located at 601 Main Street, Belmar, New Jersey 07719. Plaintiffs name him as a Defendant in his official capacity.
5
JURISDICTION AND VENUE
16.
Venue lies in this vicinage because the Borough of Belmar is a public
entity in the CountY of Monmouth. F 17
.
BACKG
UND
On Octob er 29,2012, Super Storm Sandy ("Sandy") struck the Jersey
Shore, causing tens of billions of dollars of property damage, mostly to waterfront and nearby low-lying properties. Sandy severely damaged Belma/s boardwalk and beachfront pavilions.
18.
ln the wake of Sandy, the Defendants have taken a series of steps in the
name of Belmafs "Recovery." lncreasingly, Belmads residents have discovered that
many if not most of these steps have also been designed in large measure to advance
the professional interests of Mayor Doherty's wife, Maggie Moran, and her public relations firm, M Public Affairs, lnc., and the financial interests of LIUNA, her principal
client, and its signatory contractors, including Epic, which are participants in and beneficiaries of LECET, all at the expense of Belmads residents, taxpayers and beachgoers.
1g.
As discussed at greater length below, the discovery of these relationships
and conflicts of interest
-
some of which came to light only after they were detailed on
the front pages of New Jersey's largest newspapers, and others of which surfaced during and immediately after the period leading up to the Augusl19,2014 voter referendum on Belmar Bond Ordinance 2O14-7
- have caused Belmaf s residents to
become increasingly vigilant about examining, and active in challenging, the Defendants' purported "Recoven/' efforts through petitions circulated under the
6
Faulkner Act and the Local Bond Law and pursuant to a series of successful prerogative
writ actions in this Court.
20.
In this action, the Plaintiffs, who are Belmar residents, taxpayers and/or
beachgoers, are again asking this Court to set aside the Mayor & Council's actions, this time in adopting an ordinance that gave an improper and anti-competitive bidding advantage to LIUNA, and its signatory contractors, including Epic, and specifically by doing so in violation of N.J.S.A. 4O:49-2c and N.J.S.A. 404:9-22.5, and thereby depriving Belmar citizens of their right to have municipal decisions made by disinterested public officials and to have a meaningful voice in the Borough's legislative process and the community's recovery.
The Relationship of Defendant Doherty's Wife, Maggie Moran, W¡th LIUNA and LEöET, and LECET's New Jersey Affiliate, NJ-LEGET
21.
ln January 2012, Maggie Moran, the wife of Belmar Mayor Matt Doherty,
left her position as LIUNA's Director of Business Development for the Eastern Region to launch a public relations firm, M Public Affairs, lnc., with LIUNA and/or one or more of its affiliated locals and trusts, as her principal client(s).
22.
The LIUNA Eastern Region serves New Jersey, Delaware, New York City
and Long lsland and has nearly 45,000 members. LIUNA manages an apprenticeship program for construction craft laborers, which is approved by and registered with the
U.S. Department of Labods Bureau of Apprenticeship and Training.
2g.
LIUNA has formed and operates LECET, a national organization which,
through a series of local chapters or affiliated sub-trusts, funds lobbying and public relations efforts to promote and advocate for public projects and related legislation that
7
will generate jobs for its local union membership as well as construction projects for contractors who hire LIUNA local members.
24.
According to its website, www.lecet.org, "LECET's most important mission
is helping Laborers' Local Unions and the contractors with whom thev work win projects and jobs." [Emphasis added]. LIUNA refers to these contractors as "signatory
contractors."
25.
The LECET chapter or affiliated sub-trust for New Jersey is commonly
referred to as "NJ-LECET.' NJ-LECET's stated mission is substantially the same as that of "LECET.' For purposes of this Complaint, all references to LECET also include
NJ-LECET. The mission and purpose of NJ-LECET is described on http ://wwr,v. njlabo rers.org/nod e/5
1
Helping our signatory contractors increase market share, productivity and profitability matters to NJ LECET. As a nationally-recognized labormanagement cooperative, NJ LECET works to create opportunities for our employers to win projects and put our members to work' NJ LECET works with local business, community and government groups to promote investment in economic development, transportation and infrastructure. NJ LECET reviews legislation and serves as an advocate with government agencies and the public to further industry goals. NJ LECET analyzes industry trends and new developing markets, which gives contractors the competitive advantage in the bidding process.
26.
Upon information and belief, LIUNA's signatory contractors, including
Epic, make periodic contributions to LECET and NJ-LECET to support these legislative
and public relations efforts. 8
27.
Robert Epifano, the president of Epic Management, a LIUNA signatory
contractor which has won a series of public bids in Belmar, including the bid following
the adoption of Ordinance No. 201 4-1, is one of six management members of LECET's national Board of Trustees.
2g.
Upon information and belief, Robert Epifano, is also active in the
management of NJ-LECET, either as a board member or othelwise.
29.
Upon information and belief, at all times relevant to this litigation, Epic,
either direcly or through one or more of its subsidiaries or affiliated companies has made regular contributions to the LECET and the NJ-LECET fund(s) or account(s) that pay for NJ-LECET and LIUNA's public relations and other efforts to campaign or
otheruise advocate for legislation and referenda that will, as stated on LECET's website, advance LECET's mission of "helping Laborers' Local Unions and the contractors with whom they work win projects and jobs," as well as in NJ-LECET's efforts
,'to
create opportunities for our employers to win projects and put our members to
work."
30.
Maggie Moran's work on behalf of LIUNA and NJ-LECET are substantial.
At all times relevant to this litigation, Mayor Doherty's wife, Maggie Moran, has been
direcly and extensively involved on behalf of LIUNA, NJ-LECET and LIUNA's locals public and signatory contractors in advocating and campaigning in support of legislation,
ballot questions and other efforts that would generate jobs for LIUNA local members and projects for its signatory contractors. These efforts have been described in a number of newspaPer accounts.
I
a.
According to a March 2,2014 Bergen Record story, "Top Christie Port Authority appointees devised toll-hike plan to bolster image of NJ, NY governors," Moran, aS an employee of LIUNA, WaS a key player in what
the paper described aS a "secretive campaign" to push through a toll hike at the Port Authority of New York. Working closely with Christie appointees David Wildstein and William Baroni, while still in the employ
of LIUNA and reporting directly to LIUNA Vice President and Port Authority Board member, Raymond Pocino, Moran was reportedly the sole non-Port Authority employee to have access to a 1sth floor conference room, known as the "War Room," at the Port Authority's
office building, from which she orchestrated the public relations and media campaigns in support of the toll hike effort, which would fund millions of dollars in construction projects that would benefit LIUNA
union members and LIUNA's signatory contractors. The Bergen Record article also credited Moran with choreographing the turnout of hundreds of LIUNA local members, wearing orange LIUNA T-shirts,
who appeared at public hearings for commuters that, according to the article, "were scheduled at times and places that it made it difficult for
the general public to attend," and who spoke from scripts in favor of the hike.
b.
After the Mayor's wife started her own public relations firm, M Public Affairs,
lnc. in January of 2012, she was retained by LIUNA, one or more of its locals, and/or NJ-LECET to run the media and grassroots campaign in support of a $750 million public education bond issue on November 2012 ballot that 10
created hundreds of construction-related jobs for LIUNA local members and its signatory contractors.
ln the lmmediate Aftermath of Sandy, the Borough Awards No-Bid Debris Removal Contracts to Two Contractors Who Are Clients of Mayor Doherty's Wife Belmar Giyes No-Bid Contracts to Ferreíra Construction and AshBritt-Conti
31.
Maggie Moran also played a key role in assisting LIUNA and NJ-LECET in
capitalizing on the opportunity presented by Super Storm Sandy to generate thousands of jobs for LIUNA members and signatory contractors. While it is unknown whether and
to what extent LIUNA or Moran used their political clout with Governor Christie to get
AshBrittl a controversial state contract for Sandy-related debris removal on October 30, 2112,the day after Sandy struck, the Súar Ledger later reported that AshBritt hired Conti Group ("Conti") of Edison within days after it received that contract "to help manage its efforts and identify local contractors." See Star Ledger, "Florida cleanup
firm's political ties sweep across N.J.," February 3,2013. According to the article, Conti in turn hired Moran, who is quoted in the article as stating that her firm "handled
marketing and educated stakeholders about what the state contract offered in terms of debris removal and cleanuP."
22.
Upon information and belief, AshBritt agreed to require its subcontractors
to use LIUNA local members to perform the debris removal services under AshBritt's State contract.
33.
Within a day or two after the Sandy's landfall, the Borough had already
entered into a no-bid contract with Ferreira Construction, a LIUNA signatory contractor,
r AshBritt Environmental ("AshBritt") is a national disaster and recovery firm based in Deerfield Beach,
Florida. 11
to begin debris removal work. The Borough awarded this contract to Ferreira Construction notwithstanding that Ferreira is a client of M Public Affairs, and that Ferreira's owner gave a $2,600 campaign donation to Mayor Doherty's 2010 mayoral campaign, an amount that should have barred Ferreira Construction from receiving any Belmar contract under Belmads pay-to-play ordinance'
34.
Shor¡y after Asbritt-Conti hired Moran's firm, Belmar officials began taking
steps to hire AshBritt-Conti as the Borough's debris removal contractor.
35.
According to a November 7,2012 email, then Assistant Borough
Administrator Colleen Connolly, who upon information and belief is a long-time friend of Moran's dating back to when they were roommates in college, wrote to Mayor Doherty, Borough Adminístrator Bill Young, Maggie Moran and Moran's assistant, Laura Matos,
about her conversation with representatives of AshBritt-Conti earlier that day and a planned meeting for the following day: "Have been in touch with reps from AshBritt and Conti - 1 p.m.Thursday Dupont [November 8] meeting at Boro Hall on the AshBritt contract. 100% [wicnael Dupont ls thé Belmar Borough Attorney] has reviewed and and Laura comfortable with. Good dudes - eager to help. Copying Maggie as an FYI and cause I'm not sure who has Matt's [Mayor's] Blackberry."
36.
ln response to massive statewide media focus on Belmads dealings with
AshBritt-Conti and Ferreira in light of Moran's business relationships with these companies, Doherty and Moran gave separate interviews with a reporter from the Star
Ledger. The
Febru ary
3,2013 Star Ledger article quoted Moran as follows:
"My firm does not lobby and I do no business in Belmar, period," Moran taid. Sh" said she weñt to upstate New York with her children before the storm hit and "did not communicate with my husband or anyone in the borough about how they chose to manage the cleanup'"
12
37. But to the extent that Moran was suggesting that she was either not in New Jersey or not in communications with Belmar officials at the time Belmar officials were in discussions with AshBritt-Conti representatives that was simply untrue. According to emails obtained by OPRA request from the New Jersey League of Municipalities, through which Moran organized a letter to be sent to Mayors following Sandy about the AshBritt-Conti state contract, at least as early as the afternoon of November 7,2013, the same time that Colleen Connolly was first speaking to representatives of AshBritt, Moran was in frequent email contact with Borough officials regarding AshBritt-Conti.
38.
According to an account in the Coast Star, Moran was quoted as
stating, "No one from this firm had any discussions with anyone from the town on their plans in terms of the clean up. Belmar is where I raise my kids. ldo no work in Belmar whatsoever."
39.
But a string of emails obtained via OPRA request from the New Jersey
League of Municipalities revealed that Colleen Connolly was put in touch with AshBritt's representatives before officials in other towns were told how they could contact
AshBritt. Those emails reveal that a letter about the AshBritt-Conti state contract that Moran and M Public Affairs drafted on behalf of AshBritt-Conti to be sent out to New Jersey Mayors on the letterhead of League Executive Director William Dressell was not
finalized until sometime during the evening of November 7,2012.
40.
.
But Colleen Connolly had already spoken to representatives of AshBritt by
1:25 that afternoon, as reflected on the timestamp of her email reporting on her
conversation with the "good dudes" of AshBritt to Mayor Doherty, Maggie Moran, Moran's assistant, Laura Matos and Borough Administrator Bill Young'
13
41.
Although Connolly's decision to copy Moran and her assistant on this email
would appear to indicate they were the ones who put her in touch with the AshBritt representatives, Connolly would later claim to the Coast Star that the reason she included them was because Mayor Doherty's phone "went down" and it was "tough to
get in touch with him. I knew I wanted to get word with Matt that I was close to a solution and I copíed two people I thought would be near him." See "Questions Still Linger About Belmar," The Coast Star, February 13,2013.
42.
Connotly met with representatives of AshBritt-Conti on the afternoon of
Thursday, November 8,2012 and by that evening the Borough had issued a press retease
stating:
"Belmar Matt Doherty today released . . . [a] statement on the
retention of AshBritt Conti to lead cleanup efforts in the Borough."
43.
Mayor Doherty's claim in the Star Ledger and other media accounts that
he had recused himself from choosing the Borough's debris removal contractors are contradicted by emails obtained through OPRA, which revealed that he was sent a draft copy of the press release announcing AshBritt's hiring before it was sent out, as well as
the emailfrom Colleen Connelly quoted above.
44.
Doherty claimed that he had delegated responsibility for choosing the
debris removal contractors to then Borough Administrator, Bill Young, his long-time
friend.2 According to a Coast Star article, when asked how out of hundreds of potential debris removal companies he came to select two debris removal contractors who were clients of the Mayor's wife, Young replied that it was "totally coincidental."
Approximately two weeks later, Young would resign as Borough Administrator, and return to his prior posiiion as a ciient liaison in the government relations office of the Port Authority.
z
14
Belmar Officiats Market Ash3ritt-Contito Officials in Other Towns and Cancel Contract with Non-Uníon Contractor
45.
ln addition to Moran and M Public Affairs, AshBritt-Conti hired a number of
politically connected individuals for the purpose of marketing AshBritt-Conti to municipal
and local governments. Under the terms of at least some of these contracts, AshBrittConti agreed to compensate these individuals on a commission basis, meaning that AshBritt-Conti would pay them a portion of the revenue earned by AshBritt-Conti on contracts with municipalities and other government entities the individuals introduced to AshBritt-Conti.
46.
Upon information and belief, the contract AshBritt-Conti had with Moran
and/or M public Affairs had a similar commission-based compensation component for municipalities
- presumably other than Belmar - she persuaded
to sign up with
AshBritt-Conti. plaintiffs base this allegation on a news account that in the days and weeks immediately after Sandy's Iandfall, and despite the fact that many Belmar residents were still reeling from its impact, Borough officials Young and Connolly found
time to visit other towns and attempt to encourage them to hire AshBritt-Conti to perform their debris removal services. According to the February 14,2013 issue of the Coast Star, the Avon Borough Administrator reported that Young and Connolly approached him and said AshBritt-Conti "were doing a good job for them and that we should
consider using them." Upon information and belief, Young and/or Connolly approached officials of other nearby municipalities and encouraged them to hire Asbritt-Conti as well.
47.
ln addition to encouraging other municipalities to hire AshBritt-Conti, Young
and Connolly also terminated a contract that Belmar had with a non-union debris 15
removal contractor under timing and circumstances that raised the clear inference that they were shifting work from that contractor to AshBritt-Conti.
48.
On November 3, 2012, the same day that AshBritt hired Conti, but before
Conti hired Moran
- Belmar entered into a $100,000 no-bid contract with John
DeRouville, a non-union debris removal contractor who was not affiliated with either AshBritt or Maggie Moran. Within a few days, this contract was extended and increased
to $165,000.
49.
But on November 9,2012,the morning after Belmar entered into the
contract with AshBritt-Conti
- without any prior warning -- the Borough issued
DeRouville a "cease and desist" notice and ordered him to stop work by noon that day.3 No similar notice or order was given to Ferreira Construction, which was a client of Moran's firm and a LIUNA signatory contractor, and whose owner was a major donor to Mayor Doherty's 2O1O mayoral campaign.
Belmar Awards Gontract to Epic Management, lnc. to Build the Belmar Boardwalk
S0.
Within a few short weeks after the storm, Ferreira, now operating as a
subcontractor of AshBritt-Conti, razed the entire boardwalk, including the largely undamaged portion of the boardwalk north of
4th
Avenue, and all five of Belmads
beachfront pavilions.
51.
After adopting a bond ordinance on December 3, 2012 authorizing the
issuance of $20 million in bonds and notes for the reconstruction of the boardwalk and beachfront, Belmar solicited and received more than 20 bids to rebuild the boardwalk.
3 DeRouville subsequenily filed suit against the Borough in the Superior Court Monmouth County for is breach of contract, âtteging that the teimination of the contract was politically motivated' The matter
still pending.
16
52.
On December 12,2012, Belmar awarded a $6.6 million contract to Epic to
rebuild the Belmar boardwalk. Epic started construction on January 9,2013. Several months later, the Mayor and Council approved a massive change order providing Epic with an additional g2.1 million in work.a Th¡s change order was approved by a 4-0 vote of the Council notwithstanding that a number of costly items were of the type that should
not have been added to the contract by change order, and after Epic had already started performing the work provided for in the change order. N.J.A.C.5:30-11.9
53.
By late May 2013, Epic completed the Belmar Boardwalk. The Mayor and
Council then began to direct their attention to the beachfront pavilions.
Belmar Violates the Redevelopment Law, Faulkner Act and Public Trust Doctrine Court Sfnkes Down Belmar's Designation of the Boardwalk Area as one in Need of Redevelopment under the Redevelopment Law
54.
On April 3,2013, even though the re-construction of the boardwalk was
nearly completed, the Belmar Mayor and Council, approved a resolution designating the boardwalk and adjacent beach as an "area in need of redevelopment" under the Local Housing and Redevelopment Law, N.J.S.A. 404:12A-1
eL
seq.("Redevelopment Law").
With that redevelopment designation, any project within the area would be exempt from
the State's competitive bidding requirements under the Local Lands and Building Law, and the Mayor & Council would be free to enter into private negotiations with any
developer and could award a long-term development agreement to build, rent and/or
was This change order was presented to the public as a $1.4 million increase in Epic's contract. But this of the in light by reduced had been $700,000 contraci Epic's in"r"ase. th" merely the ñet amount of Borough's post-award decision to build the boardwalk with Trex plastic lumber instead of lpe, a more expensive natural hardwood.
o
7
operate buildings on the beach adjacent to the boardwalk without the need for a bid, or even a public hearing.
55.
Borough residents challenged the Borough's redevelopment designation
in the matter of Grau et al v. Borough of Belmar, Docket No. MON-L-1941-13. On May
7,2014, the Honorable Lawrence M. Lawson, A.J.S.C. ruled that Belmar's designation of the boardwalk area as one in need of redevelopment under the Redevelopment Law was unlawful because the boardwalk area, which was largely rebuilt by the time of the designation, was not "blighted" as required by Article Vlll, Section 3, paragraph 1 of the New Jersey Constitution and by the New Jersey Supreme Court's opinion in Gallenthin Reatty Development, lnc.
v. Paulsboro,191 N.J.344 (2007), and because the
designation did not othenruise satisfy the requirements of the Redevelopment Law.
Belmar citizens challenge the Borough's PIans to Build a Gostly Two-story Fifth Avenue Pavilion and Pay for Both Pavilions Solely W¡th Beach Utility Funds
56.
At the same time residents were challenging the Borough's attempt to
designate the boardwalk and beach as a redevelopment alea, the Mayor & Council
were proceeding with plans to re-build two of Belma¡'s boardwalk pavilions
- the Tenth
Avenue Pavilion and the Fifth Avenue Pavilion'
ST.
On August7,2013, the Mayor and Council had the first reading of Bond
Ordinance 2O1g-15 which authorized the issuance of
$7 .125
million in bonds and notes
to finance the construction of the beachfront pavilions. The Borough planned to use the bonds to pay for the construction of a two-story Fifth Avenue Pavilion and Community
Center and the Tenth Avenue Public Safety Pavilion. The new Fifth Avenue Pavilion, which was designed with a large second floor catering facility, would replace the one-
18
story structure that had been damaged by Sandy. The Borough's plan to build a costly two-story Fifth Avenue Pavilion was unpopular with many Belmar residents.
Sg.
On August7,2013, Belmar residents filed an initiative petition under the
Faulkner Act, N.J.S.A. 40:6gA-184 et seg., seeking an ordinance that would require the Borough to secure voter approval before building beachfront pavilions greater than one
story. Despite the fact that the petition fully complied with the requirements of the Faulkner Act, the Borough clerk never acted upon it as required by law.
Sg.
On September 18,2013, approximately two weeks after the Mayor and
Council approved Bond Ordinance 2013-15 (referred to herein as the "First Pavilion Bond Ordinance") Belmar citizens filed a protest petition under the Local Bond Law,
N.J.S.A. 4O:4g-27 ef seq., seeking a referendum on the First Pavilion Bond Ordinance. The Borough Clerk failed to take any action to review the signatures on the petition for compliance with the statute, ultimately advising counsel for the petitioners that the petition was ineffective because it was barred by the Redevelopment Law. ln response,
the petitioners filed a complaint in lieu of prerogative writs, ln re Protest Petition Against Docket the Borough of Belmar Bond Ordinance 2013-15 Pursuant fo N.J.S.A. 40:49-67,
No. MON-L-3667-13, seeking to compel the Borough to honor the petition, and to enjoin
the Borough from expending any funds, incurring any indebtedness, awarding any contracts, or issuing or selling any bonds until a referendum was held on the First Pavilion Bond Ordinance
60.
Almost as soon as the petition challenging the First Pavilion Bond
Ordinance was filed, Mayor Doherty announced that the proposed pavilions would not cost taxpayers any money because the Borough planned to use its Beach Utility Fund,
19
which is comprised of beach badge revenue, to pay the down payment and financing costs of the bonds. At the same time, Mayor Doherty and other members of the Council, in an effort to build public support for the project, began referring to the proposed Fifth Avenue pavition in public statements and in a mailing to residents as a "Community Center," and describing how often the prior pavilion had been used by Belmar residents and community organizations for events and activities. Under the public Trust Doctrine, as well as State law, however, the Borough can only use funds collected as beach fees for expenses directly related to the operation and maintenance of the beach.
61.
On September 20, 2013, the plaintiffs in Wright et al v. Borough of
Belmar, Docket No. MON-L-3664-13, filed a complaint in lieu of prerogative writs
cha¡enging Belma/s plan to use Beach Utility Funds to pay for the pavilion construction bonds authorized by the First Pavilion Bond Ordinance on the grounds that this plan violated the Public Trust Doctrine and State statutes and regulations'
62.
On November 6, 2013, the Honorable Lawrence M. Lawson, A.J'S.C.
ruled that Belmar could not use its Beach Utility Fund to pay the down payment and
financing costs for the pavilion construction bonds. He further ruled that the Borough could not implement the First Pavilion Bond Ordinance until the Court had resolved the Grau et al v. Belmar matter and determined whether the Borough's designation of the
boardwalk and beach as an area of need of redevelopment was valid and therefore operated to bar a referendum under the Local Bond Law.
63.
ln response to the Court's November 6,2013 ruling, in December 2013,
Belmar cancelled Bond Ordinance 2013-15, the First Pavilion Bond Ordinance, and
20
reissued its pavilion construction bid specifications to provide for a one-story, rather than two-story Fifth Avenue Pavilion.
64.
ln communications to prospective bidders communicating information
about the project specifications, the Borough's engineer rescheduled the date bids were
due on at least two occasions, ultimately setting February 4,2014 as the due date for bids on the project.
Before Bids Were Due on the Second Pavilion Proiect, the Mayor & council lntroduced Borough ordinance No. 2014'1,
toAmendtheDefinitionofa..ResponsibleBidder''
65.
On or about January 17,2014, the Borough Clerk posted to the Borough's
website, an agenda for a scheduled January 21,2014 meeting of the Mayor & Council, which included proposed Ordinance No. 201 4-1 for introduction and first reading.
66.
As originally drafted, Ordinance 2014-1, entitled: "An Ordinance Amending
and Supplementing chapter lV, Department of Finance, of general ordinances of the Borough of Belmar, pertaining to Section 13, Receipt of Bids" provided in relevant pad the following:
c. Responsible Bidders 1. The Borough of Belmar, through its contracting authority, shall require an entity that bids on a public contract produce satisfactory evidence that the business entity is properly registered and authorized to conduct the type of work to be performed, including evidence that demonstrateé tnat the entity possesses or complies with requirements of the Internal Revenue Service, New Jersey Department of Treasury and/or Labor, as well as complying with the general business license requirements of the Staie of New Jersey prior to the award and during the term of the contract.
(a)Theprovisionofsatisfactoryevidencebythebidding entity, is [sici tñat it provides or participates in an apprenticeship and training program approved and registered with the U.S. Department of Labo/é Bureau of Apprenticeship and Training, as well as benefit configuration being no less than required under the New Jersey Prevailing 21
Wage Act is minimally required to demonstrate that a bidding entity is "responsible."
67.
The effect of this Ordinance, once adopted, would be to enable the
Borough to refuse to enter into a contract with the lowest bidder if that contractor did not participate in an apprenticeship program.
6g.
Once Ordinance 2014-1was posted on the Borough's website, this
proposed ordinance was available to the public for review.
69.
The Janu ary 21,2014 meeting of the Mayor & Council was canceled due
to a winter storm and the agenda for that meaning was carried to January 28,2014. At that meeting, Councilmember Magovern offered Ordinance 2014'1for first reading and introduction. The Council voted in favor of the Ordinance by a vote of 3 to 1. Unlike nearly all other proposed ordinances considered by the Mayor & Council, this ordinance
was never discussed by the Council during any agenda session prior to its introduction.s The second reading of the proposed ordinance was scheduled for February 18, 2014.
70.
On January 30, 2014, the complete text of ordinance 2014-1, as
introduced, first read and approved by the Belmar Council at the January 28,2014 meeting, was published in the Coast Star.
71.
On Febru ary 4,2014, while Ordinance 2014-1was pending, the Borough
unsealed bids for the second pavilion project, and Epic Management was determined to be the low bidder.
72.
On the Borough of Belmar web site, the February 18, 2014 Meeting
Agenda listed Ordinance 2014-1for second reading and public session. Attached to the
s
Mayor Doherty was absent from the January 28,2014 meeting
22
February 1g,2014 Meeting Agenda was the identical version of that Ordinance that the Council approved on January 28,2O14 and published in the Coast Star on January 30, 2014. (See Exhibit A- February 18,2014 Meeting agenda; Exhibit B-Affidavit of
publication in January 30, 2014 Coast Star and Affidavit of Publication of Final Ordinance in February 27,2014 Coast Star).
73.
At the February 18,2014 Council Meeting, Mayor Doherty introduced
Ordinance 2O14-1for a second reading. ln discussing the Ordinance, however, Mayor Doherty stated that based upon feedback that Borough officials had received on the proposed Ordinance, he made some changes to the Ordinance and that he "ran it by" one of the Borough's attorneys. Mayor Doherty said that the changes were "very minor." He said that he had new language added so that contractors who "have very skilled workers" but do not have an apprenticeship program, would still be able to bid on Belmar contracts.
74.
At the February 18,2014 meeting, the Mayor and Council altered the
version of Ordinan ce 2014-1 that was published in the Coast Star on January 30,2014 and that had been attached to the February 18,2014 Meeting Agenda in the following manner: (a) The provision of satisfactory evidence by the bidding entity, is that it provides or participates in an apprenticeship and training program approved and registered with the U.S. Department of Labods Bureau of Aþprenticeship and Training, as well as benefit configuration being_n_o_ less tnan required under the New Jersey Prevailing Wage Act, or the bidder certifies that they will not pay any less than the journeymans rate as defined by the Prevailing Wage Act, are minimally required to demonstrate that a bidding entity is "responsible'" [emphasis added].
23
75.
As stated above, at the time Mayor Doherty inserted this additional
language into Ordinance 2014-1 immediately prior to the February 18 final hearing, the bids on the second pavilion project had already been received, although from far fewer bidders, and the Borough had already determined that Epic had submitted the lowest b¡d.
76.
The Mayor and Council, by a vote of 4 to 1, proceeded to approve the
altered version of Ordinan ce 2014-1 following the February 18,2014 final hearing, even though the revised language had never been published as required by N-J.S-A'40:49-
2c. (See Exhibit C-Certified Copy of Ordinan ce 2014-1 as adopted on February 18, 2014; Exhibit D-Minutes of February 18, 2O14 Meeting)'
77.
Under New Jersey's prevailing wage laws and regulations, and the New
Jersey Department of Labor and Workforce Development's prevailing wage determinations, for most trades, apprentices are only paid a portion of the wage
-
typically between 40 and 60 percent -- that journeymen receive.
Tg.
As a result of the Borough's last minute, unpublished alteration of
Ordinance 2014-1, any contractor that does not participate in an apprenticeship program that is approved by and registered with the U.S. Department of Labofs Bureau of Apprenticeship and Training, which Epic has but which many contractors do not,
would not be eligible for a Belmar municipal contract after submitting the lowest bid unless the contractor also agreed to pay its workers more than they would othen¡uise be entitled to receive under New Jersey's prevailing wage laws.
79.
While this last minute revision to the Ordinance appears at first glance to
have provided an option to enable to contractors without apprenticeship programs to
24
compete for projects, it in fact allows such contractors only to bid at a financial must disadvantage to contractors participating in apprenticeship programs because they
commit to pay even apprentice level workers at a higher journeyman rate'
80.
Ordinance 2014-l became effective on or about March 15, 2014, the 20th
day following the publication of the Ordinance by heading in the Coast Star on February
27,2014. (See Exhibit B). Belmar voters overwhelmingly Disapprove of the Borough's Decision to tssue a $7 Million Bond to Finance the construction of the Fifth and Tenth Avenue Pavilions
g1.
On May 6,2014 the Mayor & Council finally adopted Bond Ordinance No.
2014-7 (,'the Second pavilion Bond Ordinance") in the amount of $7 million. At this
same meeting, the Mayor & Council accepted the bid of Epic and awarded the contract.
g2.
On May 27,2014, a group of residents filed a petition with the Borough
Clerk pursuant to N.J.S.A . 4O:49-27 ef seq., requesting that a referendum be held on whether the Second Pavilion Bond Ordinance should be enacted'
g3.
On June 17,2014, the Mayor and Council approved Resolution 2014'126,
19, which scheduled the referendum on the Second Pavilion Bond Ordinance for August
2O14.The Mayor stated that the Borough needed to schedule a special election on
August 19,2014, instead of waiting until the November General Election because Epic 4, had threatened to withdraw its bid if the referendum were delayed until the November
21l4general election, and the Borough did not want to lose Epic as the bidder. By scheduling the referendum for August 19,2014, rather than the next general election
date, in an effort to keep from losing Epic as the low bidder, the Borough incurred an additional expense of approximately $17,000'
25
84.
Mayor Doherty voted in favor of this Resolution 2014-126 and in favor of
spending g17,000 on a special election, notwithstanding that the sole purpose for doing so was to avoid losing Epic as a bidder.
BS.
Leading up to the referendum, the Mayor and Borough officials
campaigned aggressively in support of the Second Pavilion Bond Ordinance'
86.
Mayor Doherty sent out letters at Borough expense in support of the
referendum and authorized the use of the Borough's website, automatic robo-calling system and the Borough's electronic sign on Highway 35 to support the referendum'
g7.
ln the days leading up to the election, LIUNA members went door to door
in Belmar encouraging residents to vote in favor of the Bond Ordinance.
gg.
LIUNA and/or NJ-LECET, either directly or through one of their political
action funds, also spent thousands of dollars on campaign literature signs and mailings during the campaign, encouraging voters to vote Yes for the Second Pavilion Bond
Ordinance. At least four color glossy mailers were sent out to voter households in the closing weeks of the referendum campaign, stating they were paid for by the "Building
the Future Foundation, PO Box 0080, Jamesburg, NJ 08331."
Bg.
Upon information and belief, the "Building the Future Foundation" is a
political action committee or fund that is controlled and/or funded either directly by LIUNA and its signatory contractors, including Epic, or through funds they contribute for
that purpose through NJ-LECET.
g0.
In spite of the extensive efforts of the Mayor, his supporters and LIUNA,
the voters of Belmar voted down the Second Pavilion Bond Ordinance by the lopsided margin of 58 percent to 42 Percent'
26
COUNT ONE
Belmar Ordinance 2014'01 was Enacted in Violation of N.J-S -A. 40:49'2c Plaintiffs incorporate by reference the allegations of paragraphs 1 through
91
90 as though fully set forth herein.
92.
.
N.J.S.A. 4O:49-2c Provides:
upon the opening of the hearing, the ordinance shall be given a second reading, which reading may be by title, and thereafter, it may be passed with oiwithout amendments, or rejected. Prior to the said second reading, a copy of the ordinance shall be posted on the bulletin board or other place upon which public notices are customarily posted in the principal municipal building of the municipality, and copies of the ordinance shall be made available to members of the general public of the municipality who shall request such copies. lf any amendment be adopted, Cubstantially altering the substance of the ordinance, the ordinance as so amended shall not be finally adopted until at least one week thereafter, and the ordinance as amended shall be read at a meeting of the governing body, which reading may be by title, and shall be published in its entirety or by title or by title and summary, together with a notice of the introduction, the time and place when anã where a copy of the amended ordinance can be obtained without any cost by any member of the general public who desires a copy, a clear and Concise statement prepared by the clerk of the governing body setting forth the purpose of the ordinance, and the time and place when and where the amended ordinance will be fuÉher considered for final passage, at least two days prior to the time so fixed. At the time and place so fixed, or at any other meeting to which the further consideration of the amended ordinance may be adjourned, the governing body may proceed to pass the ordinance, as amended, or again amend it in the same manner. [emphasis added]'
93. On January 28,2014, the Belmar Council had the first reading of Ordinance 2014-1, entitled: "An Ordinance Amending and Supplementing chapter lV, Department of Finance, of general ordinances of the Borough of Belmar, Pertaining to Section 13, Receipt of Bids." As introduced and published in the Coast Star on January
30,2014, section c 1 of the Ordinance read:
27
(a) The provision of satisfactory evidence by the bidding entity, is that it provides or participates in an apprenticeship and training program approved and registered with the U.S. Department of Labo/s Bureau of Apprenticeship and Training, as well as benefit configuration being no less than required under the New Jersey Prevailing Wage Act is minimally required to demonstrate that a bidding entity is "responsible.
94.
At the February 18,2014 Council meeting, the Mayor and Council
approved a version of Ordinan ce 2014-1 that contained an additional provision that was inserted at the last minute that rendered the revised ordinance significantly different from the one that was introduced at the January 28,2014 meeting, published in the Coast Star and attached to the February 18,2014 Meeting Agenda. The new version of
the Ordinance read as follows: (a) The provision of satisfactory evidence by the bidding entity, is that it provides or participates in an apprenticeship and training prograT approúed and registered with the U.S. Department of Labo/s Bureau of Apprenticeship añd Tra¡ning, as well as benefit configuration being no less ¡ran required under the New Jersey Prevailing Wage Act, or the bidder certifies that they will not pay any less than the journeymans rate as defined by the Prevailing Wage Act, are minimally required to demonstrate that a bidding entity is "responsible'" [emphasis added].
95.
Because of the way that the Ordinance was revised without re-publication,
only those in attendance at the February 18, 2014 meeting were aware of the revision' The only versions of Ordinance 2014-1 that are posted to the Borough's website contain
the original language.
96.
lndeed, Plaintiffs' counsel became aware of the revised language only
when they received a certified copy of Ordinance 2O14-1 from the Borough Clerk following an OPRA request, and discovered the additional language'o
On Februa ry 27,2014, The Coast Star published a Borough Notice of Final Adoption of Ordinance 2014-1that in no way reflected the changes made to the original published version of the Ordinance.
6
28
gT
.
This last-minute change to Ordinan ce 2014-1 will drive up the cost of
Belmads municipal contracts. While the apprenticeship requirement that was originally included in the ordinance would have limited the number of bidders who could successfully bid on projects, contractors without an apprenticeship program can successfully bid on projects only by agreeing to pay their inexperienced workers more
than contractors with such programs. Some contractors without apprenticeship programs will avoid bidding altogether and others who do bid will be placed at a distinct competitive disadvantage. ln either case, the result for Belmar's taxpayers will be less competitive bidding and thus potentially higher bids. ln situations in which the successful bidder is one who does not have an apprenticeship program, Belmar taxpayers will wind up having to pay the contractor more to cover their higher labor job. costs, without even the arguable benefit of a better trained work force on the
gg.
The Mayor and Council substantially altered Ordinance 2O14-1 after they
had already published the original version of that Ordinance, depriving potentially interested residents and taxpayers of fair notice of the actual ordinance language that
would be considered. by the Mayor and Council and the opportunity to be heard on it. The new last minute language that the Mayor and Council added to the original version of the Ordinance will further drive up the cost of Belmar's municipal contracts.
gg.
The Borough of Belma/s last minute change will significantly impact how
much Belmar and its taxpayers will have to pay for municipal contracts. Such a change constitutes a substantial alteration of the original published version of Ordinance 20141
29
100.
Under N.J.S.A. 4O:49-2c, the Borough and the Mayor & Council were
required to publish the new, substantially altered version of the Ordinance at least seven days before holding a final hearing and vote of the Mayor and Council to approve
it.
By failing to comply with this basic procedural requirement for adopting an Ordinance
in the State of New Jersey, the Mayor & Council acted arbitrarily, capriciously and ultra
yires in enacting Ordinance 2014-1, and the Ordinance is therefore void ab ínitio in its entirety.
WHEREFORE, Plaintiffs seek judgment against Defendants as follows:
a.
Declaring that the Borough of Belmar Ordinance 2O14-l violates N.J.S.A. 4O:49-2c and is void ab initio.
b.
Enjoining the Borough of Belmar from soliciting, awarding or entering into any contracts or bids pursuant to Ordinance 2014'1.
c. Declaring that the Borough of Belmar's final adoption of Ordinance 2014-1 was arbitrary, capricious and ultra vires
d.
Awarding the Plaintiffs their Reasonable Attorney's Fees and Costs. COUNT TWO
Ordinance 2O14-1and Resolution 2014-105 are lnvalid Because Mayor Doherty had a Gonflict of lnterest When He Voted On and Otherwise Participated in the Preparation and Adoption of this Ordinance and this Resolution
101.
Plaintiffs repeat, reiterate, and reallege all of the allegations set forth in the
foregoing paragraphs 1 through 100 and incorporate the same herein as if set forth in
full below.
30
102. ln enacting the Local Government Ethics Law (the "Ethics La#'), the Legislature made the following findings and declarations as set forth in N.J.S.A. 404:922.2 (a) Public office and employment are a public trust; (b) The vitality and stability of representative democracy depend upol the public;s confidence in the integrity of its elected and appointed representatives; (c) Whenever the public perceives a conflict between the private interests and the public duties of a government officer or employee, that confidence is imperiled;
(d) Governments have the duty both to provide their citizens with standards by which they may determine whether public duties are being faithfully performed, and to apprise their officers and employees of the behavior which is expected of them while conducting their public duties; and (e) lt is the purpose of this act to provide a method of assuring that standards of ethical conduct and financial disclosure requirements for local government officers and employees shall be clear, consistent, uniform in their application, and enforceable on a Statewide basis, and to provide local officers or employees with advice and information concerning possible conflicts of interest which might arise in the conduct of their public duties.
103.
pursuant to N.J.S.A.4OA:9-22.5(a), no local government officer or
employee or member of his immediate family shall have an interest in a business organization or engage in any business, transaction, or professional activity, which is in substantial conflict with the proper discharge of his duties in the public interest.
104.
pursuant to N.J.S.,4 .4OA:9-22.5(c), no local government officer or
employee shall use or attempt to use his official position to secure unwarranted privileges or advantages for himself or others'
105.
pursuant to N.J.S.A.4OA:9-22.5(d), no local government officer or
employee shall act in his official capacity in any matter where he, a member of his 31
immediate family, or a business organization in which he has an interest, has a direct or indirect financial or personal involvement that might reasonably be expected to impair
his objectivity or independence of judgment.
106.
pursuant to N.J.S.A . 40A:9-22.5(f), no local government officer or
employee, member of his immediate family, or business organization in which he has an interest, shall solicit or accept any gift, favor, loan, political contribution, service, promise of future employment, or other thing of value based upon an understanding that the gift, favor, loan, contribution, service, promise, or other thing of value was given or offered for the purpose of influencing him, directly or indirectly, in the discharge of his official duties. This provision shall not apply to the solicitation or acceptance of contributions to
the campaign of an announced candidate for elective public office, if the local government officer has no knowledge or reason to believe that the campaign contribution, if accepted, was given with the intent to influence the local government officer in the discharge of his official duties'
107.
pursuant to N.J.S.A. 40A:9-22.5(g), no local government officer or
employee shall use, or allow to be u.sed, his public office or employment, or any information, not generally available to the members of the public, which he receives or acquires in the course of and by reason of his office or employment, for the purpose of securing financial gain for himself, any member of his immediate family, or any business organization with which he is associated.
108.
A "member of immediate family" is defined as "the spouse or dependent
child of a local government officer or employee residing in the same household."
N.J.S.A. 4OA:9-22.3(i). A "local government officer" is "any person whether
32
compensated or not, whether part-time or full-time: (1) elected to any office of a local government agency. . . ." N.J.S.A. 4OA:9-22.3(g).
10g. The primary purpose of conflict of interest laws is to ensure
that public
officials provide disinterested service to their communities and refrain from self-dealing. Thompson v. City of Attantic City, 190 N.J. 359, 364 (2OO7). A secondary purpose is to
promote confidence in the Íntegrity of governmental operations. /d. The citizens of every municipality have a vested right to the disinterested service of their elected and appointed officials, whose undivided loyalty must be to serye the public good. ld. at
ZZ4. public confidence requires that municipal officials avoid conflicting interests that convey the perception that a personal rather than the public interest might affect decision-making on matters of concern. td. Officials must be free of even the potential for entangling interests that will erode public trust in government actions. /d. lt is the potential for conflict, rather than proof of an actual conflict or of actual dishonesty, that commands a public official to disqualify himself from acting on a matter of public interest. ld. at374-75 1
10.
.
At all times relevant to this litigation, Maggie Moran was Mayor Doherty's
wife and therefore was a member of Mayor Doherty's "immediate family" as defined by
the Local Government Ethics Law, N'J.S'A' 404:9-22.2-
111.
Upon information and belief, Ordinance No. 2014-1 was drafted by
Belmaf s Borough Attorney in or about December of 2013 or early January of 2014 at the direction of Mayor Doherty and with his input regarding its content, including specifically the requirement of proposed section (c)1(a), which required that to qualify as
33
a "Responsible Bidder," a contractor must participate in an apprenticeship program
approved by the U.S. Department of Labofs Bureau of Apprenticeship and Training.
112.
At the time Mayor Doherty participated in the preparation and drafting of
this Ordinance, Mayor Doherty understood that Epic had been the lowest bidder on the previous pavition project, and intended to bid again on the revised pavilion project.
113.
On or shortly before January 17,2014, Mayor Doherty directed the
Borough Clerk or the Borough Administrator to cause Ordinance 2O14-1to be added to the agenda for the then-scheduled January 21,2014 meeting of the Mayor & Council, and to be posted to the Borough's website.
114. At the time Mayor Doherty took these actions, the Mayor knew that Epic planned to bid again on the revised pavilion project, and that Epic was a participant in an apprenticeship program as required by the Ordinance, and that the effect of this Ordinance would therefore be to give Epic an advantage over potential bidders that were not participants such programs.
115.
Mayor Doherty also knew that the effect of posting the proposed
Ordinance on-line and scheduling it for introduction prior to the date bids were due would be to deter those contractors without apprenticeship programs from submitting bids on the revised pavilion project. 1
10.
There was no other reason to introduce the Ordinance at that time, as
there have been no other bids awarded since the introduction of Ordinance 2014-1 except for the second pavilion project.
34
117.
Mayor Doherty did not attend the January 28,2014 re-scheduled meeting
of the Mayor &
Council. A majority
of the Belmar Council voted in Mayor Doherty's
absence to introduce Ordinance 2014-1 on first reading.
118.
Mayor Doherty also knew at the time the Council voted to introduce
Ordinance 2014-1 on January 28,2014 that in the event a bidder other than Epic won
the bid, the Mayor & Council could delay accepting the bids until Ordinance 2014-1 was finally adopted and in effect.
119.
At the February 18,2014 meeting, which was held after it was determined
that Epic's bid was the lowest, Mayor Doherty announced a change in language to Ordinance 2014-1 in order to make it appear that the Ordinance was less anticompetitive than the version originally posted on the Borough's website on or about
January 17,2014 and introduced on January 28,2014.
120.
At the February 18,2014 meeting, Mayor Doherty not only announced the
insertion of the additional language, but also proceeded to vote to finally approve Ordinance 2014-1, which requires a successful bidder for a municipal contract to have an apprenticeship and training program or commit to pay no less than the journeyman's rate to all workers.
121. On May 6,2014, Mayor Doherty and the Council voted to approve resolution 2014-105, which awarded Epic Management the contract to build the Fifth Avenue and the Tenth Avenue Pavilions. (See Exhib¡t E - Minutes of the May 6, 2014 Mayor & Council Meeting and Resolution 2O14-1O5).
35
122. Borough Ordinance 2014-1gave Epic Management, which has a LIUNA apprenticeship program, an advantage over other contractors who do not have such a program. Both Epic and LIUNA benefited from the adoption of Ordinance 2014-1.
123. Because of Mayor Doherty's wife's business relationship with and work
on
behalf of LIUNA and its locals and trusts, including LECET and NJ-LECET, which work has as its specific purpose the development of jobs that will benefit LIUNA local members and LIUNA's signatory contractors, including Epic, Mayor Doherty had an actual or potential conflict of interest at all times that he participated in the drafting, revision and final adoption of Ordinance 2014-1, and when he voted for Resolution 2014-105 awarding the pavilion contract to Epic on May 6,2014WHEREFORE, Plaintiffs seek judgment against Defendants as follows:
a.
Declaring that Borough of Belmar Ordinance 2014-1 is invalid because of the
Belmar Mayor's conflict of interest when he voted for the Ordinance.
b.
Declaring that Borough of Belmar Resolution 2014-105 is invalid because of
the Belmar Mayor's conflict of interest when he voted for this Resolution.
c. Enjoining the Borough of Belmar from soliciting, awarding or entering into any contracts under Ordinance 2014-1or Resolution No. 2O14-1O5.
d.
Awarding the Plaintiffs their Reasonable Attorney's Fees and Costs. PRINGLE QUINN ANZANO, P.G. Plaintiffs le, Esq. Edward R. Bonanno, Esq Denise M. O'Hara, Esq.
Dated: September 23, 2014 36
CERTIFICATION VE
FYING COMPLAINT
l, Joy DeSanctis, of full age, hereby certify and state that I am familiar with the facts of this case, and make this certification based upon my personal knowledge.
I
certify that I have reviewed the foregoing Verified Complaint in Lieu of Prerogative
Writs and for lnjunctive and Declaratory Relief. I further certify that, to the best of my knowledge, the statements contained in paragraphs 65,66,67,68,69,70,72,73, 74, 76,77 , 78,79, BO, 93, 94, 95, 97, 98, and 99 of the Complaint are true and correct. I 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.
Joy Dated: September 23,
2O1
4
37
nctis
I
CERTIFICATION Pursuant to R. 4:5-1, the Plaintiffs, by their attorneys, hereby certify that the
matter in controversy is not the subject of any pending or contemplated judicial or ad
ministrative proceedings. The Plaintiffs are not aware of any other parties that should be joined in this
action.
PRINGLE QUINN ANZANO Attorneys for Plaintiffs
, Esq.
Dated: September 23, 2014
TR¡AL COUNSEL DESIGNATION Pursuant to R. 4:5-1, Kenneth E. Pringle, Esq. and Edward R. Bonanno, Esq. are hereby designated as trial counsel.
PRINGLE QUINN ANZANO Attorneys for Plaintiffs
B
Edward
Dated: September 23, 2014
38
Bonanno, Esq
