Court hears Armstead-Scutari fight over Linden council seat

By Chuck O’Donnell
Staff Writer
LINDEN, NJ — Mayor Derek Armstead and state Sen. Nicholas Scutari have escalated their battle over the vacant 8th Ward Council seat to Union County Superior Court.

Attorneys representing the Linden Democratic Committee, chaired by Scutari, sparred with Linden city lawyers before Administrative Law Judge Katherine Dupuis on Monday, Feb. 11. The LDC has sued the city and the City Council, claiming that Paul Coates should be recognized as the 8th Ward councilman.
Coates was elected by the LDC and sworn in by Scutari on Feb. 6, despite the council’s Jan. 15 vote to leave the seat vacant until the next general election.

After hearing of Scutari’s intention to seat someone regardless of the council vote, Armstead circulated a letter to city department heads instructing them not to recognize the person.

Attorney David Minchello argued before Dupuis that state statute No. 40A:16-5 should not give the council the discretion to leave the seat vacant until it is filled by the winner of the November general election, and that statute No. 40A:16-11 must also be considered.

“The problem with that reading is, they take that reading and say not only is it discretionary but it also gives us the right to go further and maintain a vacancy until the next election,” Minchello said. “This is problematic for a number of reasons. First, it ignores Section 16-11. 16.11 is a roadmap. It lays out the process by which all vacancies are filled.”
In this case, the LDC submitted three names — Coates, Cynthia Apalinski and Aaron Howard — to be voted on by the council. When the council did not vote on those three names and instead voted 8-1 with an abstention to leave the seat vacant, the power to select one of those candidates reverted to the committee, Minchello said.

Coates, 44, a barber and bail bondsman, was selected by the LDC by a 20-0 vote. He was sworn in to fill the unexpired 8th Ward vacancy created when Michele Yamakaitis resigned the post Jan. 1 to become the council president.

Scutari watched the hearing from the back row of the courtroom and Armstead sat several feet to his right. The majority of the council members, including Yamakaitis and Barry Javick, who sat with Armstead, often vote in support of the mayor’s policies. Councilman John Francis Roman, who is not aligned with Armstead, sat a row in front of the mayor and the others.

City attorney Daniel Antonelli and attorney Jarrid Kantor argued that the council has the power to vote to leave the seat vacant. In statute No. 40A:16-5(b), Kantor stressed the words “shall” and “may” that give the council that option.
Antonelli added that, “it’s a two-step process when you look at 16-5(b) and when you look at 16-11 and when you link them up together, the first question that has to be answered is whether or not they want to fill the vacancy. If they don’t … you don’t even get to 16-11.”

Kantor also argued that the LDC meeting at which Coates was selected was “invalid,” because it was attended by just 15 of the 80 members and that proper public notice was not given prior to the meeting.

upuis began by asking when the next council meeting would be held. The council’s next meeting is set for Feb. 19.
The battle for control of the vacant 8th Ward council seat intensified last month when Armstead told city employees to ignore the LDC replacement. According to a copy of the letter provided to LocalSource by Armstead’s office and dated Jan. 31, Armstead is “advising all department heads and elected officials” to not recognize anyone sworn in by the LDC to fill the seat.

“All department heads should be further advised that this individual is not to be given access to City Hall as a member of council, which shall include but not be limited to official city documents, access to the city’s email or computer system, nor should this individual be provided any confidential information,” the letter continued.
Scutari, who represents the 22nd Legislative District, which includes Linden, Clark and Rahway, said the LDC has “the statutory authority” to select and swear in the next council member.

After the Jan. 31 Board of Education meeting, Armstead said, “They can convene whatever they want, if I have to sit a police officer in the 8th Ward seat that night, there will not be a person he appoints in that chair. The department heads have been instructed to not give information or provide access to our emails or do anything else critical to the city function.”

Scutari, who served as city prosecutor for about 16 years, was removed from the position by a vote of the City Council at its Jan. 15 meeting. The council voted to replace him with Scotch Plains-based attorney Deirdre Mason.
Armstead would still have the majority of council members aligned with him, even if Coates is recognized as the 8th Ward councilman. However, the terms of council members Peter Brown, Ralph Strano and Javick, who are generally aligned with Armstead, expire in January 2020. Councilwoman Rhashonna Cosby’s term also expires at that time, but she is not aligned with the mayor.