LINDEN, NJ — Mayor Derek Armstead has won the second round in the battle for control of the 8th Ward City Council seat.
Appellate Division Judge Amy O’Connor, in a court document dated Feb. 28, denied an appeal for a temporary restraining order filed by state Sen. Nicholas Scutari to have Paul Coates seated as the councilman in the 8th Ward.
The Linden Democratic Committee, chaired by Scutari, and Coates filed the motion in Superior Court against the city and council Feb. 28, seeking to nullify a vote by the City Council to keep the seat vacant until the November election. The council had voted 8-1, with one abstention, at its Jan. 15 meeting not to fill the unexpired 8th Ward vacancy created when Michele Yamakaitis resigned Jan. 1 to serve as council president.
The matter now returns to Chancery Judge Katherine Dupuis, who, in court documents dated Feb. 14, recognized the city’s right to leave the seat vacant. The order Dupuis signed, however, references a final hearing date of March 15. At that time, attorneys for the LDC will seek to have Dupuis’ order reversed and allow Coates to immediately assume the 8th Ward seat.
“I’m happy that the appellate division saw fit to leave the matter where it should be, which is before the chancery judge,” city attorney Daniel Antonelli said in a March 3 phone interview.
“Like Judge Dupuis, the Appellate Division saw no reason for a temporary restraining order and further has provided confirmation to Judge Dupuis that her initial determination that 48:16-5B controls the issue on whether council can decline to fill the council.”
A copy of O’Connor’s order was posted on Armstead’s Facebook page along with the comment: “A big win for the residents of the 8th Ward. The appellate court ruled against Senator Scutari; they won’t intervene. Senator Scutari had appealed Judge Dupuis’ decision in which she ruled in favor of the people. Residents deserve to have the right to choose who they want to represent them in their wards.”
Antonelli and his law partner, Jarrid Kantor, argued in front of Dupuis on Feb. 11, that the city has a right to keep the seat vacant. Much of their argument hinged on state statute 40A:16-5, which states that a “governing body may fill the vacancy temporarily.”
David Minchello, the attorney representing the LDC, argued the statute should not give the council the discretion to leave the seat vacant, but that 40A:16-11 also must be considered because it is “a roadmap” that “lays out the process by which all the vacancies are filled.” Minchello said that since the council failed to select one of the three candidates — Coates, Cynthia Apalinski and Aaron Howard — put forth by the LDC and Scutari, the power to select the successor goes back to the committee.
Coates, 44, a barber and bail bondsman, was selected by the LDC by a 20-0 vote and sworn in by Scutari on Feb. 6.
The battle between Armstead and Scutari has also been fought outside the courts in the past several weeks.
The City Council voted Feb. 19 to form a committee to investigate whether Scutari was paid for work he did not perform while employed as the city’s municipal prosecutor. The Municipal Council Investigatory Committee is composed of Armstead-aligned council members Peter Brown, Ralph Strano and Alfred Mohammed, and will have subpoena powers for the investigation.
Scutari, who represents the 22nd Legislative District, which includes Linden, Clark and Rahway, served as the municipal prosecutor for about 16 years before being replaced in January by Armstead.
According to a copy of a resolution LocalSource obtained from the mayor’s office, the City Council “is of the opinion that based upon information received and compiled, that a certain former municipal prosecutor, who was required to be present three days a week in court, not including holidays, vacation or personal days, has taken more time off than what was permitted and still received payment for services that were not rendered.”
Brown said at the meeting that he and other members of the Budget Committee “found something that stuck out as far as time not accounted for.”
“It’s not a matter of opinion,” Brown said. “It’s a fact that the documents here that no one wants to talk about a total of 127 days were missing, two years. That directly costs taxpayers. We’re talking about pension issues. We’re talking about theft of time.”
Although Scutari wasn’t mentioned by name in the resolution creating the committee nor in the council meeting, Armstead issued a release Feb. 20, saying, “I support the decision to investigate Nick Scutari’s absenteeism. Taxpayers will no longer tolerate waste, fraud and abuse in city government.”
While he was municipal prosecutor and earning $84,659 a year, Scutari was absent at least 62 times in 2018 and 65 times in 2017, according to the statement.
Scutari called the investigation “political theater” during a phone interview Feb. 25.
“It’s a political witch hunt and it’s further evidenced by the fact that they have been threatening this for me since I failed to endorse the mayor and council president,” he said. “And the same mayor that’s been accused of theft of time in the county of Union. There were rumors that he produced no work product, that he slept on the job. He literally slept in his office. That’s out there, that they had to move his office because of snoring. And that he wasn’t at work when he was supposed to be at work. He was doing his mayoral duties or developing his house because he did that, too.”
Armstead worked in informational technology for the county before quitting to work full-time as mayor about three years ago.
“I no longer work at the county,” Armstead said. “I left my job at the county. I didn’t get fired or anything else. I left my job at the county so that I can dedicate more time to being a good mayor in this town. My hours that I put in here are proof positive of my work ethic.”