Controversy, Lawsuit Over West Orange Town Attorney Drags On (UPDATE)

WEST ORANGE, NJ — Is Richard Trenk still the township attorney in West Orange? That’s a question that will continue to play out in the courts – but for now, the answer is “yes.”

For the past year, West Orange’s municipal government has been embroiled in a controversy surrounding Trenk, who has been serving as the town attorney despite the absence of a work contract.

The situation has spurred an ongoing lawsuit between the mayor – who is in Trenk’s corner – and some members of the West Orange Town Council, who say that the longtime litigator and his law firm shouldn’t be getting payments from the township until the matter is sorted out. See Related: West Orange Mayor Sues Town Council; Trenk Saga Continues

Earlier this week, an Essex County Superior Court judge granted a preliminary injunction in favor of McCartney, ruling that Trenk can remain the town attorney until the case is settled for good. He will be allowed to bill the township for “all work necessary” in connection with the job. Read the court order below, or view it online here.

After the court issued its injunction, the mayor cheered the decision and said it will allow the town to move forward.

“For the benefit of the entire township, as mayor, I am pleased with the court’s decision vindicating the mayor’s right to designate Richard Trenk as township attorney and permit him to continue to serve unimpeded,” McCartney wrote.

She continued:

“I have full confidence in the quality and integrity of Richard Trenk representing the township as our township attorney and his commitment to the betterment of West Orange. I hope the entire council will now join me in moving the township forward and appreciate the service our residents receive on a daily basis. My hope is that we can now work together with the township attorney and his office to ensure that the many critical, pending projects in town can be reviewed, scrutinized and accomplished in a respectful, cooperative manner.”

But according to council president Bill Rutherford, the mayor’s victory lap is premature.

“For more than a year, [Trenk] has been utilizing his law firm (Trenk Isabel Siddiqi and Shahdanian) to do work for the Township of West Orange without a contract,” Rutherford told Patch in an email.

“Consequently, the township council has been locked in a battle with the mayor in an attempt to force the legal department to comply with the law,” the council president continued.

That lawsuit is still active – despite the court-ordered injunction, he noted Thursday.

Rutherford said that McCartney has added a resolution to the agenda for the council meeting on March 26 to withdraw from the litigation. Discussion would take place during executive session, which is closed to the public.

“Mayor McCartney and Mr. Trenk are deceiving the residents of West Orange,” Rutherford alleged. “They know – or should know – that the public statements they have made are incomplete, inaccurate and misleading.”

“At the heart of this matter is a township attorney awarding his own firm legal work, without a contract, and unjustly enriching himself, with taxpayer funds, in the approximate amount of $500,000 over the last 15 months with the full support and assistance of the mayor,” he said.

Rutherford shared some background about the case with Patch:

“In March 2023, when the Trenk firm's contract came before the town council for renewal, it failed to pass. The first vote resulted in 2 yay, 2 nay, one abstention. At that point, the legal department stated that the mayor could vote to break a tie. That was not true, but she voted anyway, and the contract was awarded based on that faulty vote. Within days, the legal department had to retract the advice they gave that allowed the mayor to vote in a township council meeting (she is statutorily precluded from voting on contracts).”

Here’s what happened next, the council president said:

“At the next meeting, the council voted to rescind the resolution that awarded the Trenk firm a contract (5 yay, 0 nay). We then took another vote on a new resolution to award his firm a contract. That vote failed to pass with 3 voting nay, 2 voting yay. At that point, in March 2023, Mr. Trenk should have begun transitioning all of the cases his firm was working on to other law firms that had a contract to do legal work in West Orange. He did not. He had already been working without a contract since his last contract expired on December 31, 2022. Even by the most liberal reading of Local Public Contracts Law, he should have immediately stopped working on any cases his firm was handling for West Orange and begun a transition of the work to other firms that had a contract.”

“The initial reason given for failing to transition the work was that Mr. Trenk was a holdover,” Rutherford said, adding that other reasons have been given as well.

“The council began pulling his bills from the bill list to prevent the CFO from paying them,” Rutherford continued. “That did not stop Mr. Trenk from assigning work to his firm (a conflict of interest) or continuing to work on existing cases.”

Last spring, the council was alerted that the Trenk firm may still be receiving payment from the Township of West Orange, he said.

“That would have been in violation of the Faulkner Act which governs our town and gives authority to pay bills to the township council,” Rutherford said. “At that point, Resolution 233-23 was introduced and successfully passed, in an effort to stop the payments and assignment of cases to the Trenk firm.”

The resolution passed with three council members voting yes, and two voting no, he noted.

“Still, Mr. Trenk continued to perform work for the township through his law firm, which is separate from the work he does as township attorney (a salaried position),” Rutherford said. “As objections from the township council majority continued to mount, and residents continued to express their discontent, the mayor initiated a lawsuit against the council asking the court to compel the council to award the Trenk firm a contract and invalidate Resolution 233-23.”

• See Related: West Orange Mayor Seeks To Nix 'No Support' Resolution For Trenk

When the initial hearing took place that summer, and without any “substantive evidence” being presented, the presiding judge granted temporary relief to the mayor, Rutherford said.

“Essentially, she instructed all parties to continue doing business as we had been before the lawsuit was filed until the case was resolved,” he said.

Oral argument was heard on that case on Dec. 6, 2023. The judge said she would render her decision the first week of January 2024 – but two months later, a final ruling still hasn’t been issued, Rutherford said.

McCartney called the council president's stance on the issue "unfortunate."

"My statement was completely accurate," she told Patch. "The 32-page court decision goes through every legal argument which Mr. Rutherford raised and rejects them."

"It is time to move on and do the people’s business of legislating and working with the mayor and administration," McCartney said. "I was duly elected mayor and the council unanimously approved Mr. Trenk at the Jan. 10, 2023 town council meeting. The June resolution put forward by Councilman Rutherford has no validity as a matter of law or fact."

Trenk has served as the town’s attorney since 1998.

Some council members and residents have been growing increasingly critical of his track record advising the town on legal matters, including several important development projects.

• See Related: West Orange Has Spent $14K On Legal Battle With Bagel Shop Owner

Others have commended Trenk’s service as town attorney, citing his three decades of experience – including McCartney, who has issued multiple statements of support on his behalf.

According to court documents, Trenk is paid a salary to serve as law director, which comes to $42,500 under the current salary ordinance. He is permitted to assign work not covered by that agreement to other members of his firm – or himself – at a rate of $150 per hour as set by the township’s billing guidelines, which is “below average market rate for municipal attorneys” with Trenk’s level of experience.

McCartney has attested that denying the injunction would mean that West Orange’s government – including herself as mayor – would be unable to perform some of their most basic functions until the case is settled.

Former assistant town attorney Ken Kayser, who retired from the job last year, repeatedly told council members that in order to remove Trenk under the Faulkner Act, they must bring charges “for cause” and obtain a super majority of votes from four of five council members.

The council has not done so, and has “failed and/or refused to provide any substantive basis for their refusal to approve Trenk and his law firm’s professional services contract,” Judge Annette Scoca wrote in Wednesday’s court order.

“Because two members have indicated they will not support the ‘charges,’ the entire process is a nullity and the council is at an impasse,” Scoca added.

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