Nearly a year after Montclair hired an outside law firm to investigate accusations of racial bias in the fire department’s most recent promotion test, the Township Council has taken the unusual step of deciding not to pay the firm’s nearly $40,000 bill, this coming after the investigator apparently found no evidence of bias.

The decision on a matter that has roiled a number of the council’s meetings over the last several months unfolded without commotion at the governing body’s last session of the year on Tuesday night, Dec. 20. But the outcome seemed to lay bare the council members' conflicted positions.

Deep into the meeting, Resolution R-22-287 to “confirm and ratify a non-fair and open professional services contract” and “authorize payment” to O’Toole Scrivo LLC. received only passing discussion before producing an odd 2-2-3 split, with two members in favor, two voting against and three abstaining.

For some time, the hiring of the O’Toole firm has fueled consternation by residents and Montclair government officials concerned about the process itself that brought O’Toole in to investigate the accusations from black firefighters that last December’s promotional exam was skewed to favor white members of the department, including Fire Chief John Herrmann’s son.

An internal investigation completed last March by the town’s Affirmative Action officer, Bruce Morgan, sided with the firefighters.

“My finding is that the change in the testing criteria created a disparate impact on minority test takers who took the 2021 promotional exam,” Morgan wrote in the report that was obtained by Montclair Local from a confidential source.

“I have great reason for pause and uncertainty about the veracity and transparency of the creation and scoring of the promotional exam,” Morgan also wrote

In addition, the gender discrimination lawsuit brought by Montclair's chief financial officer, Padmaja Rao, against Township Manager Timothy Stafford and the township cites discord over the O’Toole contract as partly provoking the mistreatment she says she suffered. Responding to the allegations in Rao’s suit, the council placed Stafford on paid administrative leave and contracted with an outside firm to investigate. In this case, too, the Affirmative Action officer substantiated the allegations, according to a separate report also obtained by Montclair Local from a confidential source.

In her suit, Rao says the O’Toole contract to investigate the firefighters’ claims was signed by Mayor Sean Spiller and bypassed a process required under state law.

“The township did not pass a resolution for the 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,” all in violation of the New Jersey Local Public Contracts Law, her suit says.

Recounting her discovery of the agreement, Rao says in her suit that she was struck by O’Toole’s “unusually high hourly rates.” Riker Danzig, another law firm that does business with the town, has an hourly fee capped at $185; the O’Toole rate was capped at $350 an hour.

The final invoice voted on by the Township Council at its last meeting was $39,386.

In the 2-2-3 vote, some of the members seemed to be torn: an unease with O’Toole’s findings and the way the contract was awarded set against what they see as the township’s obligation to pay up. They had been put in a kind of Gordian Knot —  having to decide on whether to ratify a contract that had already been fulfilled.

Spiller and Third Ward Councilor Lori Price Abrams voted in favor of the resolution while Fourth Ward Councilor David Cummings and Councilor-at-Large Peter Yacobellis voted against. The three abstaining councilors were Deputy Mayor Bill Hurlock, Second Ward Councilor Robin Schlager and Councilor-at-Large Bob Russo.

“We don't pay for a result that we want,” Spiller said in bringing the resolution to a vote.

Asked why she had voted yes, Price Abrams said in a text, “Because we committed and retained them for services which they provided. Nothing more complicated than that.”

Cummings described his reasoning moments before voting against the resolution.

“I want to be on the record that I was uncomfortable with this hire, and I thought that it could have been done better,” Cummings said. “And the result, I think, speaks for itself.”

Yacobellis released a statement saying he had voted no because of “questions around the process of formally onboarding them as a vendor and how their scope was set.”

“I hope to get those answered in January,” he said, alluding to when the council reconvenes in the New Year and suggesting that it could reverse its decision. “I think ultimately we do have to pay them for the work they’ve done, even if we have some clear lessons for how to approach situations like this in the future.”

Russo, responding in a text, described O’Toole’s founding and managing partner, Kevin O’Toole, a former state senator, as a “fine public servant.” But Russo said he carried concerns that “someone would perceive a political agenda could be involved. So I did not choose them for this task and wanted to voice my concerns by abstaining on payment.”

Why then, Russo was asked, had he abstained rather than casting a no vote.
“Because we ultimately have to pay our bills, even if we are not completely satisfied with the work,” he said.

At the meeting on Dec. 20, Acting Township Attorney Paul Burr was asked by council members what would happen if the bill went unpaid.

“It will be up to the vendor to decide how they want to proceed,” Burr said.