Montclair, NJ – When Montclair Township Council, at a contentious September 28 meeting, voted 4-3 on Resolution R-22-201, a resolution authorizing a Shared Services Agreement with the Borough of Glen Ridge for Fire Suppression Services, the meeting was packed with Montclair residents who implored the council to vote no.
At the July 26 Montclair Council meeting, when the Council went into executive session mid-meeting for an extended period, a crowd waited nearly three hours until they could participate in public comment. The reason for going into Executive Session, as stated by Mayor Sean Spiller, was resolution R-22-148 to discuss “Contract Negotiations and Litigations.”
During that July meeting’s Executive Session, there was a straw poll with a majority of the council members agreeing to having Montclair make a proposal to Glen Ridge by way of a bid. The bid was based on the Fire Department’s analysis of costs for providing fire suppression services. There was no resolution after that executive session authorizing Township Manager Tim Stafford to make the bid on the Township’s website.
“We sat in a meeting in July and five of us said yes. And now there seems to be a change of heart based on a bunch of conversations going on publicly, but privately that’s what we did,” Councilor David Cummings said, referring to the July 26 meeting before the council voted.
A change of heart is exactly what you would expect when new information comes to light.
“A straw poll, where it looks like five people are in favor of something, is clearly not binding without a public meeting,” says attorney Alan Trembulak, who has served as Montclair’s Township Attorney. “It wasn’t a formal vote. It was a decision to make a proposal. I don’t see how that could bind someone. To say that after considering public feedback, they couldn’t change their mind, now that would be irresponsible.”
“What would be the purpose of having a public hearing and public comment if the council was already bound by a straw poll months earlier?” Trembulak adds.
Trembulak recalls during his time as township attorney, when there were discussions in executive session, it wasn’t uncommon for councilors to change their minds, “sometimes in the elevator on their way out of the building” but especially when new information is made available before an official public vote.
New information came minutes after the councilors returned from executive session at that July meeting. Residents, after waiting nearly three hours to participate in public comment, raised concerns about the Fire Services agreement, imploring the council to look at all the costs associated with providing fire services and not simply incident costs. They also called for any shared service agreement to be transparent.
“Let’s not repeat what happened in 2012,” said Montclair resident Eileen Birmingham.
Birmingham had also raised concerns before; at the June 13 council meeting, she stated that Glen Ridge was paying $50,000 less than it did in 2011 and, when adjusted for inflation, the borough was paying Montclair less than it did way back in 1991.
Why Was Montclair Forced to Bid?
At that late July meeting, Montclair councilors prepared a bid in response to a request for a proposal (RFP) by Glen Ridge, originally sent out on May 31, 2022.
“As we have to engage in a sealed bid process for the fire contract, not negotiations,” Mayor Spiller wrote, “we are forced to make determinations of what we will offer, knowing that other towns may bid as well.”
So why was Montclair put in the position of a sealed bid process? What kind of negotiations took place before Glen Ridge announced that it was putting Montclair in a competitive bidding situation? The council had eight executive sessions in 2022 before the July meeting. Not one indicates any discussions about the fire contract.
The Capital Finance Committee — Mayor Sean Spiller, Councilor David Cummings and Councilor Bill Hurlock — talked about the bid, but they weren’t all in agreement.
“I’ve been a consistent no. This goes back for over a year with us on the finance committee,” Hurlock said. I actually wanted more. I wanted more than the $900,000, I wanted it to be about $1.2 million. My compromise was to keep it where it was, which was the $900,000 number that we have now.”
Councilor Robert Russo said he asked for the state’s shared services czars, former mayors Nicolas Platt and Jordan Glatt, to review the contract for over a year, something Montclair residents, including Birmingham, had also asked councilors to do.
“Bad communication or no communication has been what got us into past poor contracts, and I advocated continual communication with both Glen Ridge officials and Bloomfield’s leaders to avoid a conflict, delays or a ‘bidding war,'” says Russo. “I warned our officials and staff and alerted our new town attorney of the need to respond and negotiate directly with Glen Ridge to avoid them going out to bid. Again, I was rebuffed and told not to interfere or ‘lecture’ my colleagues.”
Russo’s account matches that of Glen Ridge’s attorney.
“Glen Ridge sought at various times to meet with representatives of Montclair to discuss the renewal of the 2012 agreement,” says Glen Ridge’s attorney John Malyska. “Even though the 2012 agreement (like the 2003 agreement) allowed Glen Ridge to renew for 10 years, not all renewal terms were specified. Time passed to the point where the window for Glen Ridge to secure 2023 fire suppression services was closing. The circumstances left Glen Ridge with little responsible choice but to follow the 2012 protocol and request proposals for fire suppression services.”
Spiller told constituents in an op-ed on September 25 that “after working with Glen Ridge for a number of years, we know exactly what our annual costs are to provide fire service and protection. By engaging in a shared services agreement, Montclair receives dollars that far exceed our incremental cost associated with providing fire services to Glen Ridge.”
“I strongly resent that critical information — an analysis from our chief financial officer with recommendations on what we should bid, was withheld from a majority of the Council prior to bid submission,” said Councilor Peter Yacobellis, who also shared this concern in an op-ed on September 22. “The public should know what numbers the Mayor is basing his argument on. I don’t. Do my colleagues? Why get $926,000 in 2022 and then ask for only $850,000 in 2023? Why has this essentially been unchanged for 30 years?”
The report from Montclair’s chief financial officer details different ways to calculate the costs of providing fire suppression services to Glen Ridge. The lowest estimate in the CFO’s report is based on the number of Glen Ridge fire calls Montclair responds to – approximately 10 percent of overall calls. That would put Glen Ridge’s annual payment at nearly $1.7 million.
In addition to Yacobellis, Russo and Councilor Robin Schlager both said they had supported the original bid without having seen the CFO analysis.
A “No Choice” Vote?
Although the proposal to Glen Ridge was discussed at the July 26 meeting during executive session, records show it was not submitted until the submission due date of August 18. Glen Ridge accepted Montclair’s proposal by Resolution 133-22 on September 12.
“Their council has not yet formally met, but we have every reason to expect that since we have received the proposal that we will proceed. They have indicated that they will go forward with the execution of the contract,” said Glen Ridge Councillor Anne Marie Morrow on September 12.
Councilors at the September 28 meeting made statements indicating they were unclear as to what a vote in a straw poll with no resolution to memorialize it actually meant. Could they even vote no?
Interim Town Attorney Paul Burr said there was an “expectation from Glen Ridge” that it would be ratified by resolution by Montclair.
“Without a council vote on this resolution to ratify the bid as a contract, is there even a binding legal contract here?” Russo asked.
Burr said he would have to take the meeting into executive session to answer, “because there could be pending litigation depending on actions of council tonight.”
Councilor Robin Schlager, reading from prepared comments before voting, said she had no choice but to vote yes, adding that the township attorney told her the town was “legally bound” to the bid it had made.
“If my colleagues want to go ahead with this, that’s fine,” said Councilor Hurlock, of his “no” vote. “It doesn’t mean I have to, legally or otherwise.”
A motion to table the resolution by Russo, and seconded by Yacobellis, was unsuccessful.
“I tried to help resolve this communication problem with a motion to just table and further discuss the contract. A couple of weeks delay would not have been a legal problem with our friends in Glen Ridge,” says Russo. “Now we may face that from others.”
Montclair voted to pass their resolution on September 28; the bid packet from Glen Ridge stated that the actual agreement must be executed by the winning bidder no later than September 22, 2022.
Hurlock said he received over 200 emails, texts, notes and phone calls from residents about the fire suppression services. Schlager echoed a similar outcry from her constituents and Russo said, in an email exchange with a Glen Ridge councilor, that “hundreds of residents are screaming at me for this bid and contract,” adding that in his 22 years of serving on the council he had never received such negative messages.
Spiller had this to say in an email to constituents a few days after the vote:
“Montclair residents can always be counted on to engage in thoughtful discourse on issues impacting our community. Democracy relies on participation, which is why I believe we are a stronger community when we engage in constructive dialogue even when we do not all agree.”
But where was the dialogue before the 11th hour? Clearly it was an issue residents wanted to participate in, that warranted a formal public discussion and more transparency.
There was the opportunity for a special session to reconsider the bid in the weeks between July 26 and submitting the bid on August, given the amount of discord over the numbers — not just from the public, but the divide within the council itself. Council members couldn’t even agree that night on what they recalled from the straw poll.
“When you think about what is happening here — a town is selling fire service to a richer town at lower rates than its own residents pay, expecting its residents to make up the difference in cost — it is not surprising that they cannot get it done without clear violations of the Sunshine Act,” says Birmingham. “This is not a process that should be conducted in secret. Period.”
“Public bidding is so obviously not in the spirit of the shared services statute. It’s not what the legislation intended,” said Ira Karasick, former Montclair township attorney. “The process was not in the public interest and appears deeply flawed. There was a closed session with no resolution and then the submission of a low ball bid.”
Karasick states that Montclair, due to the location of its firehouses and response time, was the only viable bidder to Glen Ridge, something Montclair could have proven early on in their negotiations.
In a letter to the council, township manager and town attorneys, Martin Schwartz warned of potential future litigation with regards to the Montclair-Glen Ridge fire agreement, stating the agreement is “in apparent violation of a a 2013 New Jersey Revised Statute, Duration of certain contracts.”
“Montclair Council voted on to codify the RFP bid terms submitted. A bid which is still in effect and active, not to support the terms or statutory requirements of a new Shared or Local Services Agreement to be undertaken,” writes Schwartz.
“Glen Ridge’s actions have been based on the protocols and precedents which have existed for 20 years,” says Malyska. “The current shared services agreement for 2023-2032 was reached using the same procedures and protocols that were followed since 2003. Very little, if anything, has changed in either the length or the nature of the services which Montclair will be providing in 2023 from those it provided in 2003. Finally, it is important to note that the 20-year relationship has been marked by great harmony between the towns and no issues or disputes have ever risen over the shared services. Glen Ridge has the greatest respect and appreciation for the Montclair Fire Department and the men and women who serve in it.”
Schwartz also alleges that Councilor Schlager was given “incorrect legal information and distortion of legal facts” to induce her to change her vote.
Montclair Mayor Robert Jackson is critical of the process as well as the agreement itself.
“I preface my comments by noting that I am an ardent supporter of the Montclair Fire Department and I made its support a priority. When I left office the MFD was staffed fully with 89 firefighters; equipped with 4 of 5 new engines, with the last being designed; and covered with an unprecedented six-year collective bargaining agreement.
“Not surprisingly, I support a fire services agreement between Montclair and Glen Ridge. However, I believe that it should be codified in a compliant Shared Services Agreement (SSA) vs. a bid response. A properly negotiated SSA would have produced a legally viable and a more economically equitable agreement; an agreement that reflects the acumen of the citizens and leadership of both communities.
“The procurement process and the agreement itself are problematic. Glen Ridge issued an RFP for goods and services which by law can be no more than five years. The bid magically, and I believe improperly, morphed into a faux SSA. Glen Ridge should have rejected all responses and then initiated SSA negotiations. Once Glen Ridge decided to procure services through the RFP process it was required to adhere to the law governing RFPs. RFPs and SSAs are not fungible. Further, NJ 40A:65-7a(4) states that an SSA must have a term between two and 10 years. This agreement is 15 years.
“In terms of the economics, there is no doubt that the terms favor Glen Ridge. The cost to serve Glen Ridge is irrelevant in my view. The issue is what Glen Ridge should be willing to pay.
“The analysis is relatively straightforward. We pay for Montclair municipal services, including fire protection at $17 million, through property taxes. Each Montclair property pays its share of this cost based on its value.
“If Montclair and Glen Ridge were one town, it would have an equalized property value of @ $10 billion. In this “merged” town, Montclair property ($8.1 billion) would shoulder 81% of the property taxes and Glen Ridge property ($1.9 billion) 19%.
“So, with respect to fire protection services (again $17 million total cost), Montclair would pay $13.8 million and Glen Ridge $3.2 million. It’s just that cut and dry and negotiations would start there. Of course, because because I hold that the revenue from the Glen Ridge agreement is 100% marginal, there is significant “wiggle room” from Montclair’s perspective. Nonetheless, I think we can all agree that a 70% haircut is generous.
“The agreement appears to be headed to the courts to face some weighty legal challenges, which is a most unfortunate and ominous outcome. Hope springs eternal that cool and pragmatic heads on all sides will produce a better one.”
Let us know (and Montclair Government) what you think.