Baraka asks judge to toss whistleblower lawsuit from ex-Newark corporation counsel

By Bill Wichert | NJ Advance Media for NJ.com
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on December 29, 2015

Newark Mayor Ras Baraka at work in his city hall office in Newark,

 

NEWARK — As Newark officials see it, former city Corporation Counsel Karen Brown is no whistleblower.

In her lawsuit against the city and Newark Mayor Ras Baraka, Brown alleges she was fired earlier this year for engaging in whistleblowing activities, including reporting certain matters to state officials and refusing to approve a shared services agreement that she claims was forged and based on false information.

But city officials are calling on a Superior Court judge to throw out the lawsuit, because they argue Brown has failed to "connect the dots" between her allegations and the standards for pursuing a whisteblower claim under the state's Conscientious Employee Protection Act, or CEPA.

The city asserts that Brown's complaint does not meet those standards, because the lawsuit does not include allegations that demonstrate she was retaliated against for disclosing or objecting to actions of the city that she reasonably believed were in violation of a law, rule, regulation or public policy.

"The Complaint contains various incidental and inchoate allegations in an attempt to state a CEPA claim, but falls short in that it fails to identify a single act of whistle blowing," according to a brief filed by the city in support of its motion to dismiss the complaint. "Nor does the Complaint connect the dots to relate the incidents identified in the Complaint to an act of retaliation."

"There are no allegations to suggest that plaintiff engaged in whistle-blowing activity protected by statute," the brief states. "There are no allegations as to what law, rule, regulation or public policy that defendants violated."

Citing "the well-established legal authority of the Mayor of the City of Newark to select its own professionals," the brief claims Brown "simply was let go when the Mayor lost his trust in her as legal advisor."

Brown's attorney, Charles Sciarra, however, said "the motion is frivolous" and that Brown is "a classic whistleblower."

"She protested and reported violations of the law and she was fired," Sciarra said on Wednesday in a phone interview.

Referring to Baraka, Sciarra later added: "He lost trust in her because she wouldn't play along with his corrupt practices."

City spokeswoman Marjorie Harris said on Wednesday the city would not comment on the matter. "The City will not comment on pending litigation nor respond to the comments from the litigant's attorney," Harris said in an email.

The law firm representing the city in the litigation, Teaneck-based DeCotiis, FitzPatrick & Cole, LLP, also declined to comment, saying on Wednesday in a statement: "The City cannot provide any additional information on this matter since it involves pending litigation."

A hearing on the motion is scheduled for Jan. 22 before Judge Garry Furnari.

Brown's complaint represents at least the third lawsuit filed against Baraka this year by former city officials challenging their terminations.

The other two lawsuits have been filed by Keith Isaac, the city's former emergency management coordinator, and Victor Emenuga, the former CEO of the Newark Community Economic Development Corporation.

Brown was hired as the city's Corporation Counsel when Baraka took office on July 1, 2014, and she was terminated on Feb. 23, 2015, according to the city's brief.

The lawsuit, which was filed on Sept. 15 in Essex County Superior Court, claims Brown was fired, in part because city officials accused her of using her cell phone as a recording device in a meeting with Baraka. Brown denies that accusation.

Around the time of her termination, Baraka's brother and chief of staff Amiri "Middy" Baraka indicated the alleged cell phone incident and Brown's communications with state officials were "serious problems," the lawsuit states.

But the lawsuit asserts that Baraka terminated Brown in retaliation for refusing to follow the mayor's orders and other whistleblowing activities.

Among the examples outlined in the lawsuit are the circumstances surrounding a shared services agreement between Newark and Irvington for the services of a health officer, and issues involving Requests for Qualifications (RFQs) for municipal prosecutors.

According to the lawsuit, Baraka pressured Brown in December 2014 to approve the agreement. She refused to do so, because someone else had signed the agreement in the section that required her signature as corporation counsel and since the agreement was based on false information that Newark was laying off employees, the lawsuit states.

The lawsuit states that a resolution approved by Irvington to authorize the agreement said it was necessary because both municipalities were laying off employees, but Brown said that claim about layoffs in Newark was false.

Brown also claims Amiri Baraka pressured her in late January to reissue the RFQs for municipal prosecutors, because an attorney had complained she was not awarded a contract for 2015. The brother indicated the attorney was "a big help to the Mayor's campaign," the lawsuit states.

Brown told him the attorney had nearly three weeks to respond, but her response did not comply with the requirements of the RFQ, the lawsuit states.

As an act of retaliation for her whistleblowing activities, Brown claims city officials indicated her recent hire of a paralegal specialist was not approved, even though she said all of the proper paperwork had been executed, the lawsuit states.

Brown reported to state officials about that matter and provided information to them about the request to reissue the RFQs for prosecutors, the shared services agreement and "copies of invitations to political fundraising events," according to the lawsuit. The lawsuit alleges city workers were pressured to make political donations to Mayor Ras Baraka.

But referring to those issues, the city contends in its brief: "It is unclear, however, how those incidents support an actionable CEPA claim.

"Further, there are no allegations in the Complaint that tie those incidents to the Mayor's decision to terminate plaintiff," the brief states.

The brief states Brown advised the state monitor overseeing Newark's finances that she believed she had been subject to retaliation, but "what retaliation had been taken against her as of that point is unclear from the Complaint as plaintiff was still employed by the City at the time she met with the State Auditor."

"When stripped to its essence, the Complaint makes clear that plaintiff's tenure as Corporation Counsel ended as a result of the Mayor losing trust in her counsel," according to the brief. "This is an insufficient basis to state a claim under CEPA."

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