Friday, December 5, 2014

Should a city attorney advise his city as to whether the city attorney is eligible for state pension enrollment?




I believe that a city attorney should not be involved in the municipal employer's decision of whether the attorney is eligible for pension enrollment. . So, I filed the following complaint against Garfield City Attorney Joseph J. Rotolo.



Update 10/30/16:  By way of an October 20, 2016 letter, the Local Finance Board dismissed the complaint.
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December 4, 2014

Patricia Parkin McNamara
Local Finance Board
101 S Broad St – PO Box 803
Trenton, NJ 08625-0803
(via e-mail only to Patricia.McNamara@dca.state.nj.us)

Dear Ms. McNamara:

I intend this e-mail to be my complaint against Joseph J. Rotolo who, at all times relevant to the activities alleged below, served as Municipal Attorney for the City of Garfield in Bergen County. In accordance with N.J.A.C. 5:35-1.1(b), following are the required elements of the complaint: 

1. State the point of the Local Government Ethics Law alleged to be violated. 

N.J.S.A. 40A:9-22.5(d) which states:
No local government officer or employee shall act in his official capacity in any matter where he, a member of his 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. 
2. State the name(s) and title(s) of the parties involved in the action and against whom the complaint is filed. 

Complainant John Paff and the New Jersey Libertarian Party and Joseph J. Rotolo. 

3. Set forth in detail the pertinent facts surrounding the alleged violative action. 

The relevant documents are on-line here. At issue is a January 26, 2011 letter (page 13 of the PDF at the above link) written by Mr. Rotolo, on his law office letterhead, to Roy Riggitano who served as the Public Employees' Retirement System (PERS) Certifying Officer for the City of Garfield.  At the time the letter was written, Mr. Rotolo was the municipal attorney for the City of Garfield. In his letter, Mr. Rotolo states:
As a result, it is my opinion that you should, as Pension Certifying Officer, determine that I qualify as an employee, and, hence, for continued Pension System Membership. Of course, the ultimate decision is yours. The purpose of this correspondence is not to tell you how to decide the issue but simply to provide you with adequate factual background upon which such a determination should be made.
I assert that the elements of N.J.S.A. 40A:9-22.5(d) have been met.  First, the January 26, 2011 letter expressly "follow[ed] up" on Mr. Rotolo's January 24, 2011 letter (page 12 of the PDF at the above link).  The earlier letter indicates that Mr. Rotolo's involvement in the pension eligibility issue was initiated by a request from the City Manager that Mr. Rotolo "assist in drafting a letter or otherwise responding to the Office of the Comptroller on behalf of the City." Accordingly, Mr Rotolo was acting in his "official capacity" when he wrote the letters.  Second, Mr. Rotolo clearly had "a direct or indirect financial or personal involvement" in his continued PERS eligibility "that might reasonably be expected to impair his objectivity or independence of judgment."  

Accordingly, Mr. Rotolo should be issued a Notice of Violation.

4. Indicate whether the complaint concerns the complainant in any way and what, if any, relationship the complainant has to the subject of the complaint. 

Complainant has no interest in or relationship to this complaint greater than any other citizen or organization who wishes for all government officers and employees to comply fully with the Local Government Ethics Law. 

5. Indicate any other action previously taken in an attempt to resolve the issue and indicate whether the issue is the subject of pending litigation elsewhere. 

No other action has been taken previously in an attempt to resolve this issue and this issue is not the subject of any pending litigation. Thank you for your attention to this matter. I ask that you please acknowledge your receipt of this complaint within 30 days.

Sincerely,

/s/ John Paff, Chairman
New Jersey Libertarian Party's
Open Government Advocacy Project
P.O. Box 5424
Somerset, NJ 08875
Voice: 732-873-1251

cc. Mr. Rotolo
Garfield Mayor and Council (via e-mail to the City Clerk)