Housing Authority Attorney Vows to Continue Fighting for Re-Appointment

The Hoboken Housing Authority solicited bids for its general counsel position again this week — the fifth time such a request for proposal has been issued in the past year.

HHA executive director Carmelo Garcia said that not renegotiating with holdover counsel Charles Daglian, whose contract expired last August, has cost the Housing Authority nearly $20,000 over the past year, between continuing to pay the attorney’s default rate and the labor costs associated with preparing and re-preparing job specifications, reviewing them with a procurement officer and advertising them in newspapers.

As the board's sole appointing authority, Garcia alone is responsible for putting forth candidates for appointment following an objective review of their proposals. The board has the power only to approve or deny Garcia's decisions.

"It is not my job to dissect the prejudices that exist," Garcia said. "It’s my job to say, 'I’ve got four proposals, we’ve rated them and this is who we believe is the most advantageous for the housing authority.'"

Daglian, who has failed five times to receive the necessary board commissioner votes for appointment despite receiving Garcia’s repeated recommendation, said he has every intention of continuing to reply to the RFPs. 

“I’m assuming at some point the board will have to pick new counsel and if I’m the lowest and most qualified, eventually they’ll have to make a decision,” Daglian said by phone Monday. 

“They have the right to vote down the executive director’s recommendation, but eventually they’ll have to give a reason why they keep doing that,” he said, noting that a reason is not required legally, but that he believes mounting public pressure will compel one. 

HHA commissioner Jake Stuiver, who opposes Daglian’s re-appointment, said there are at least four instances over that past 18 months that have caused him to call the services of the Housing Authority’s longtime counsel into question, most notably, Daglian’s conduct at the board’s February meeting. 

At that turbulent meeting, which lasted more than three hours, an initial vote to appoint Daglian ended in a 3-3 stalemate, but was later reversed following the arrival of then-vice chairman Rob Davis, who voted in support of the attorney.

Stuiver disputed the re-vote on the advice of the city’s corporation counsel, Melissa Longo, who, when asked to weigh in, cited Article VI Section 36(a) of Robert’s Rules of Order, which states that only board members who cast a dissenting vote can propose a re-vote later in the meeting.

Stuiver also questioned Daglian’s attendance at the meeting, calling it a conflict of interest because the attorney advised the board on the contract that pertained to his own re-appointment — something both Longo and the U.S. Department of Housing and Urban Development, which was also asked to provide a legal opinion, concluded was problematic.

“This is an attorney who has been pretty much discredited by HUD,” Stuiver said earlier this week. 

The U.S. Department of Housing and Urban Development oversees and provides funding to public housing authorities.

“I don’t think [HUD] would appreciate having [the HHA] go around and around and around fighting tooth and nail to appoint an attorney whose ethics have been called into question by the federal authority that oversees us and the corporation counsel of the city with which we have an agreement,” continued Stuiver, who said he felt the HHA’s integrity had been tarnished by its recent dealings with Daglian. “There are other attorneys out there.”

In February, Stuiver had hoped to award the general counsel contract to the lawfirm of Florio, Perrucci, Steinhardt & Fader, one of four firms that responded to the HHA’s request for proposal, but was advised that, by contract, only Garcia had the power to appoint professionals.

Stuiver said that, in addition to Florio, Perrucci, Steinhardt & Fader, a number of the other law firms that have made proposals would be acceptable to him.

"There are any number of proposals we would be wiling to consider very seriously," he said. "But Mr. Daglian is out of the question. He has lost the trust of four commissioners and he will not be reappointed."    

Daglian acknowledged that his involvement in the February meeting where his appointment was on the table may have represented a conflict of interest, but said Stuiver’s assertion that HUD had censured him for it was a lie.

“They questioned the fact that I answered to the chairman and one of the commissioners about the [RFP] process, and said I should not have done that,” he said. “No one said I have an ethics violation and no one has filed an ethics violation." 

A March 6 HUD legal opinion states that because Daglian was permitted to state his case for selection at the February meeting and provide the board advice regarding meeting protocol in voting to award the general counsel contract, “it raises suspicions that undermine the integrity of the procurement process,” is “self-serving,” and “may also violate the attorney’s code of ethics.”

Both Daglian and Garcia said that he only participated in the discussion of his proposal because members of the board asked him why he dropped his bid from $60,000 to $45,000.

“I could have done one of two things,” Daglian said. “I could have been insubordinate and refused to answer, or answered — so I did. In retrospect, should I have said it would have been a conflict? Probably. But in the heat of the meeting, I responded. It certainly wasn’t calculated.”

Following receipt of HUD’s legal opinion, which in addition to commenting on Daglian’s “perceived impropriety” cites five flaws in the HHA’s RFP for the legal counsel position, Garcia said he perfected the process before issuing the next request for proposal. 

“All [HUD] said was, ‘Can you take the necessary steps to do what we’re recommending to you?’” Garcia said. “And that was done immediately. We just hammered it out and used that application the next go around.”

When the next round of bids came in under the revised procurement process, Garcia, using an objective proposal evaluation system required by HUD, again recommended Daglian. The attorney was not appointed.

“The recommendation was made again based on the facts, based on the methodology, based on the criteria, based on what my committee had noted,” Garcia said. “We gave opportunities to the commissioners to join that process. Not one of them took the opportunity.”

After the vote to appoint Daglian failed again in May, board chairman Rob Davis asked Garcia to place an identical resolution for Daglians’s appointment back on the agenda for June's meeting, even though an RFP had not been re-issued.

Garcia explained that based on HHA special counsel Joseph Wenzel’s interpretation of Robert’s Rules, it was permissible to bring the motion back for another vote.

In his opinion, Wenzel cited Section 38 of Robert’s Rules, which states:

“When an original main motion or an amendment has been adopted, or rejected, or a main motion has been postponed indefinitely, or an objection to its consideration has been sustained, it, or practically the same motion, cannot be again brought before the assembly at the same session, except by a motion to reconsider or to rescind the vote. But it may be introduced again at any future session.”

Garcia said Davis wanted to bring back the resolution to appoint Daglian because he thought one of the dissenting commissioners, Gregory Lincoln, may have changed his mind. 

Lincoln voted against Daglian’s appointment in May, but acknowledged that he hadn’t had a chance to review the proposals. The resolution was brought back so that Lincoln, if he so chose, could request that a new vote be taken after having reviewed the proposals.

The resolution was brought to a vote at the June 13 meeting and again failed with Lincoln, Stuiver, David Mello and Judith Burrell voting in opposition.

After the vote was taken, Stuiver stated publicly that he believed it had been conducted illegally.

“As far as I’m concerned, the resolution under our bylaws failed in May and there was no legal basis for bringing it back in June without first reissuing the RFP,” he said earlier this week. “I feel very strongly that it’s not even ambiguous, it’s crystal clear that bringing this back for another vote in June was not a legal action.”

Based on his discussions with HUD and various attorneys, and the mandated training classes he’s taken as a housing authority board commissioner, Stuiver asserts that the portion of Robert’s Rules cited in the board special counsel’s legal opinion does not apply to rejected contracts.

“All this opinion says is that a resolution that has been voted down can ordinarily be reintroduced as a new matter at a subsequent meeting.  There is no dispute about that,” he wrote in an email Friday. “Under state- and HUD-mandated procurement laws, however, once a contract is voted down, the procurement process must restart from the beginning. A new RFQ/RFP must be approved and sent out with new bids received and considered. You cannot legally simply reconsider a rejected bid.”

Stuiver said he’s keeping HUD abreast of the latest developments regarding Daglian and that the agency is aware that his appointment was reconsidered at this month’s meeting.

“A majority of the HHA commissioners consider the actions at the June meeting to be a brazen act of insubordination on the part of Director Garcia, and any further insubordinate attempts to force a discredited attorney's contract upon the board will be dealt with accordingly,” Stuiver said Friday.

Garcia said that a resolution to re-appoint Daglian won’t be brought forth at the HHA board’s July meeting, but that it's likely to come up for a vote again in August — assuming the longtime board attorney remains the executive director’s recommended choice following his review of the latest proposals.

Despite facing nearly a year of rejections by the board, Daglian said walking away now is not an option.

“It wouldn’t be the right thing to do,” he said. “If I just walk away then those who are trying to manipulate the system would be successful. They eventually may do it, but I’m not going to be a party to it.”