Not-Stempler Review of 'CC Minority Agreement' with HoldCo

When GA got back from Sunday's City Council meeting, who do you think I called?

Not-Stempler, of course!  You know him; GA's legal department.

I had this in my hand:

Sorry about the falafel sauce- it's called tahini.  Pronounced TA-HEE-KNEE.  From Mamoun's, naturally.  They only charge $2.50 per falafel sandwich- how the hell do they stay in business? You've got to try one.  (Tell them GA sent you and they'll charge you $5.00 for 2.)

As I was saying... I called my highly-compensated legal department, Not-Stempler, who doesn't HAVE to eat falafel because the hardworking son-of-a-bitch makes $850/hour.  (Please don't tell him I called him a son-of-a bitch. He might start charging me.) The reason I called this well-paid legal whiz was for his opinion on the bizarre 'agreement' Mason had presented that night.

Not-Stempler, being the professional he is shared a few thoughts,  but told me he'd have to review Mason's presentation, press release and HoldCo letter referenced in her public comments before rendering a proper legal opinion.   What a professional.  

GA is no schlock bog. My experts are the real deal, worth every penny I don't pay them.

So here's what I received today.  Thank you, Not-Stempler.  

I have had the opportunity to review, in full, the Sunday council meeting as well as review the complete document that Ms. Mason refers to as her alleged agreement with the buyers of the hospital. While you generally present issues that have some merit, the claims by Ms. Mason regarding the content of the alleged agreement and its binding effect on the buyer and the City are figments of Ms. Mason’s imagination, which appears to be quite vivid.

The foregoing is a rather strong statement for me to make, but in the context of the matters that you have asked me for comment, the meeting and the explanation of the agreement/letter stands out for its utter lack of any legal basis and is either an outright fabrication or the product of delusional thought. If I have not actually heard Ms. Mason set forth her interpretation of the letter, I doubt that I would have believed that a public official could be so reckless. The letter is very craftily worded by its author (most likely an attorney for the buyer prepared for the buyer’s signature), and it clearly does not represent any agreement or binding obligation of the buyer or the City and is utterly unenforceable.

It is horn book law that a municipality can only act in accordance with the powers conferred upon it by statute. As a Faulkner Act municipality, the enabling statute does not create within Hoboken a separately recognized “Council minority” and there is no precedent that would confer upon the council minority (emphasis on minority) to bind the City in any event; especially in light of the fact that the functions related to the sale of the hospital have been properly delegated to the municipal hospital authority created for that purpose. It also does not appear that the Council minority had municipal legal representation during the course of its “negotiations”. Only duly retained council, paid for by the City, can assist and advise government officials in the discharge or exercise of their duties. Perhaps if the Council minority had the assistance of effective counsel, then the letter may have contained different terms.

It goes without further comment that there is no authority for the council minority members to act in any official capacity as representatives of the City to designate a board member of the buyer. The letter was addressed to the members in their official capacity, not as ordinary citizens of Hoboken. Therefore, any “rights” related to the unenforceable invitation extended to the minority members belong to the City, not any particular council members, subject to the provisions of the Faulkner Act. If anyone has the authority to accept such an invitation, it is the Mayor, who would make recommendations for the seat with the advice and consent of the Council. A majority vote of the council is all that would be needed to make such act official, to the extent that the City deems it advisable to have an additional government representative on the hospital board.

It appears that the council minority is striving to create a rump mayoralty position within the mayor/council form of government, which rump caucus has veto authority over the executive power granted to the Mayor. The Mayor of Hoboken is Ms. Zimmer. She is the executive charged under the Faulkner Act with the executive functions of the municipality. In many cases the council is called upon for its advice and consent, and in other matters (like the emergency designation) requiring a super majority for action of the City to be deemed effective. Such participation is not to be mistaken for usurpation of the executive function.

As to the actual contents of the letter, I had to listen to the proceedings several times, taking notes, because the summary of the letter which Ms. Mason gave bears no resemblance to the actual words and sentences contained in the letter. It would be a fundamental error to characterize the letter as any form of legally binding agreement. It is not necessary for me to go into great detail on this issue as the examples are so glaring. It would appear that the other members of the minority also believe that the agreement represents some kind of binding obligation on the City and the buyer. I would be curious to find out if that is, in fact, the case. If so, it would appear that you have a council minority that has a fundamental problem with reading comprehension. As to the general style and tone of the letter, it appears to me that the buyer carefully stroked Ms. Mason’s ego and smooth talked her into believing that the sun rises in the west. Kudos to its author.

I trust that the forgoing addresses your questions. It has been amusing to provide assistance regarding your situation in Hoboken. My colleagues frequently ask if you have deigned to give me yet another assignment that I can share with them. We actually have started to look forward to them, as your questions can be quite amusing.

Isn't Not-Stempler terrific?

And in case you missed Sunday's  Mason 'presentation' here it is, thanks to Greg Bond.