Judge Rejects ‘Wall of Secrecy,’ Orders Montclair to Follow Its Workplace Rules

The Township of Montclair is represented by attorneys from Riker Danzig, but it was Judge Stephen Petrillo who was focused on the people of Montclair Friday.

In denying nearly every attempt made last week by Montclair’s attorney to build a broad wall of secrecy around Montclair’s CFO and the whistleblower suit she brought against the town, Petrillo called some of the arguments made by the defense “ridiculous” as well as “absurd,” “nonsense,” even stating “Kafka would be proud.”

Petrillo again questioned whether the defendant’s attorneys were truly representing the Township of Montclair.

“Who is the town? Whose privilege is it? It’s clearly not Mr. Stafford, whose attorneys are not even here today and who I understand is no longer employed by the town,” said Petrillo. “Oddly, there seems to be some alignment of interests, yet the town is liable if what is alleged about Mr. Stafford is true. No individual has stepped forward in connection with the town’s position other than a lawyer. I’m forced to conclude that Montclair is its people.”

“So, who speaks for the people?” Petrillo continued. “Right now we only know the lawyer and the lawyer advances legal arguments on behalf of the people and I have no idea whether or not those really are or aren’t in the people’s best interest.”

Petrillo went on to reject the defense’s extraordinary request of a protective order to put the CFO behind a “wall of secrecy,” calling the defense’s timely failure an “after the fact legal strategy but not a legitimate instance of attorney-client privilege.”

One by one, Petrillo detailed why the documents or statements in the amended complaint were not privileged and did not meet the requirements for communications to be shielded, specifically citing communications by acting township attorney Paul Burr.

“Mr. Burr did not state that the law department’s opinion was confidential. Mr. Burr did not indicate that the plaintiff should not disclose the communication,” said Petrillo of a communication by Burr regarding council members who were receiving health benefits on the state plan. “It was not marked or branded, as is incredibly common among experienced attorneys, who tend to know when and how communications should be watermarked or otherwise indicated as confidential. The communication itself indicates plainly that it was a purely administrative matter.”

DeVito Memo “Not A Legal Opinion”

Petrillo, after reviewing the DeVito memo — a memo sent by assistant township attorney Gina DeVito to council members stating they were not eligible to take health benefits on the state plan — rejected that it could be considered in any way privileged.

“The memorandum does not state that it’s confidential. It doesn’t state that it’s an attorney-client communication. It doesn’t instruct the recipients to keep the memorandum or the legal opinions contained in it confidential. And frankly, I could not find the legal opinion,” said Petrillo. “I saw no analysis. I saw nothing that I would recognize as a former practicing attorney that suggests the person who wrote it had evaluated a question presented and made a legal conclusion.”

Petrillo had a similar opinion of an email to Rao sent by Bruce Morgan, the town’s affirmative action officer, reporting that the law department had rejected his finding that Stafford had created a hostile work environment for Rao.

“They simply told her the outcome — not the why, not the where, not how they got to that result. They’re not potted plants, they’re highly educated lawyers and they know how to assert privilege, but in the moment they didn’t, because there wasn’t one.”

Petrillo also denied the demand that Rao be made to identify and turn over confidential information in her possession.

“That’s like proving a negative. It’s an impossible request to honor because there’s nothing specific. There’s no way for me to order or grant that relief until we know the universe of documents that we’re up against,” Petrillo said.

Of Montclair’s need for secrecy, Petrillo said: “I can’t imagine anyone, anywhere,… other than maybe the CIA, Defense Department, the NSA, that has this need for secrecy. It should make any person shudder when a municipal government in a matter such as this says there’s this need for secrecy.”

Petrillo spoke of Montclair asking the court to exclude Rao from doing her job and how it made no sense, especially “if they are making that argument in the town’s interest, which is the people’s interest.”

“So they want to keep secret much of what it is the plaintiff has to say and then they want to keep secret much of what it is they don’t want the plaintiff to be able to do anymore? Kafka would be proud.”

Petrillo went on to say that not only would the court deny the motion, but it would enter an order directing Montclair to follow its own administrative procedures with respect to preparation of materials for council meetings related to draft resolutions, ordinances and certification of funds.

According to Rao’s complaint, when Montclair engaged the O’Toole Scrivo law firm, for the purpose of conducting an investigation into a claim of racial discrimination in the preparation and administration of the 2021 Montclair Fire Department promotional exam, the Township did not pass a resolution for the O’Toole Scrivo contract, did not request or obtain a certification of funds for the contract from the CFO, and the contract did not include a maximum dollar amount.

“The process imposed by the town manager, according to [Rao’s] certification, provides the necessary time for review, discussion and corrections when necessary. And if these guidelines are not adhered to, in certain serious instances, it could arguably constitute further retaliation at worst or undermine the plaintiff in doing her job,” said Petrillo. “In order to avoid that, and in order to make this case more expansive, because no doubt it would become expansive, the court will enter an order requiring that the town must adhere to its own workplace rules so there is no question that the people are getting exactly what they are entitled to and that everyone is doing what the law requires in this regard.”

Petrillo asked that the order be crafted by the attorneys and submitted as a proposed form of order in five days.

“Walling Off” A No Go

The final matter was addressing the broad motion that would preclude Rao from engaging in and have her “walled off” from what Petrillo characterized as a “laundry list of things” including Rao’s role in the township’s participation in the New Jersey Health Benefits plan, the council’s finance sub-committee;  and any involvement in the fire department investigation. All were ultimately denied.

“The court cannot sustain the request that she be removed from her job responsibilities. It would be contrary, not only to what the statute provides, but to the interests of the citizens of Montclair to wall her off from a number of these things,” said Petrillo

According to Rao’s certification, which details her job description, she has a statutory obligation to manage $95 million in taxpayer money by, among other things, maintaining fiscal discipline in the financial operations of the municipality.

“People need someone to keep an eye on things and if what’s described is actually happening and the people running the department aren’t paying attention because somebody just writes a new check and doesn’t think about it, that’s rank irresponsibility and it’s not good government,” said Petrillo. “Her doing her job right is the very definition of protecting the defendant. To remove her from the oversight of this process when that oversight is at the very heart of what she alleges is being done wrong, would again be counterintuitive.”

“Maybe she’s a pain, maybe she’s one of these people who’s persnickety and detailed and wants everything done right. We should have more like that,” said Petrillo. “What I don’t hear is anyone saying ‘she’s doing a lousy job, we are going to be harmed if we keep her doing her job.’ Will she find that there’s a bigger mess than she’s found so far and would cause her to blow the whistle longer, louder or harder? I have no idea, but it’s not a basis to remove her from responsibility for these tasks.”

Petrillo ordered that Rao should be prohibited from access to any communications or information  regarding her claims and the litigations in which some claims have been asserted against the defendants.

Petrillo stated that those limitations would also apply to anything having to do with the litigation involving former Montclair deputy clerk Juliet Lee currently pending before Judge Tarantino and the subject of a consolidation motion.

“The court will prohibit that access in the same way as regards to the information pertaining to her own case,” he said.