While Giacchi left the council chambers for a couple of minutes to go to the bathroom at Wednesday night's meeting, a minority bloc on the nine-member council leaped on the opportunity to remove the city's temporary chief financial officer and terminate the contract of the city's auditors.
Currently, the Hoboken City Council has two factions. Five members support the administration of Mayor David Roberts, and four are in bitter opposition. However, Wednesday night, pro-Roberts Councilman Michael Cricco was absent, which evened the number to four to four.
Then, during the public comment portion of the meeting, Giacchi stood up and went to the bathroom. At the time, Hoboken resident Maurice DeGennaro was being highly critical of Acting CFO Louis Picardo, who is also the city's tax collector. DeGennaro also was critical of the city's auditing firm, Ernst and Young, for not attending City Council meetings.
For the past three months, the council minority has repeatedly asked for Picardo and representatives from the auditing firm to attend, but they haven't. The council minority has been hyper-critical of the mayor's budgets, and especially massive overspending in last year's budget, which was partially prepared by Picardo and Ernst and Young.
Despite multiple complaints about their performance and non-attendance, until Wednesday, the minority never proposed a resolution to fire the pair from their positions.
But Wednesday, an opportunity presented itself.
"Based on Mr. DeGennaro's comments, I make a verbal resolution to remove [Picardo from his duties as CFO] and fire Ernst and Young," said 3rd Ward Councilman Michael Russo. Picardo would only be removed from the CFO position, and would retain his job as tax collector, according to his verbal resolution.
That's when things really started to get crazy.
The three remaining pro-Roberts council members contested the legitimacy of the resolution.
Whoa there
First, they argued that Russo didn't submit the resolution in written form the Friday before the meeting, which is the governing body's normal procedure. The policy, however, has been broken before. In fact, earlier Wednesday night, the council approved a non-binding resolution encouraging people to support campaign finance reform, which had been first submitted by a citizen during the course of the meeting.
Secondly, it's highly unusual to introduce new legislation during the public comment portion of the meeting Finally, the council majority questioned, loudly and with much anger, the tactic of calling a vote while a member of the council had stepped out.
"I have made a motion, and I have a second," responded Russo in a booming voice. "I want a vote taken." As might be expected, the vote passed, so to speak, with the four anti-Roberts members voting for the termination, and the pro-Roberts members against it.
"This is just disgusting," said Councilman Christopher Campos.
Then Giacchi re-entered the room, oblivious to what had just happened. He sat down, and almost everybody in the room started staring at him.
There was a brief discussion over whether or not Giacchi could vote. Council President Richard Del Boccio said that he should, but the opposition members of the council said he wasn't there when the motion was made and shouldn't be able to vote.
"I go outside to use the restroom," Giacchi protested. "I come back in. I have nothing in front of me, and you want me to vote on - I don't even know what I'm voting on."
He added that his understanding was that all new resolutions should be presented in written form by the Friday before the meeting. He said that, given his usual position, he would not vote.
He would later add that he had waited until the "new business" section of the meeting was finished to go to the restroom. "I was completely blindsided," he said.
But Giacchi's opposition claims that Giacchi was gone for more than just a couple of minutes, and they say he was on his way home, but was called back to City Hall. Hoboken political figure Michael Lenz, who is closely aligned with council members Carol Marsh and Tony Soares, said that he had third-hand information that Giacchi had left the meeting and was on his way home.
Soares and Russo said that they believed that Giacchi had left permanently, and said that they do not believe he was in the restroom; therefore it was perfectly acceptable to take a vote.
But Giacchi emphatically denied that he left the meeting to go home. He said that he absolutely was in the restroom.
The aftermath
Now what's left over is a legal mess and a lot of bad feelings. Russo said shortly after the meeting that for three months, the CFO and the auditing firm have not shown up for meetings and deserved to be fired.
"They chose to ignore the council and this is the consequence," he said.
He added that his decision to call the vote was based on the comments of public speaker DeGennaro and not due to Giacchi's trip to the loo.
"It had nothing to do with who was sitting at the table," said Russo.
But not everyone is buying that explanation.
"It's totally ridiculous," said Councilman Ruben Ramos. He said that it was against the spirit of the democratic process to purposely take a vote while another councilmember was in the restroom.
"Not only that, but they broke every procedural rule of this council for nothing more than an opportunity to grandstand," Ramos said.
Mayor David Roberts said that the terminations were not legal and that he will do what is necessary to rescind Russo's resolution. "I think what the City Council did was truly irresponsible," said Roberts Thursday. "I'm convinced their goal is to obstruct and stop the operation of government."
Councilman Tony Soares said that the vote was the right thing to do and was based only on the poor performance of the CFO and auditor.
"Enough is enough," he said. "This was something that we needed to deal with right now. It couldn't wait any longer."
Councilwoman Carol Marsh, an ally of Soares, said that what happened Wednesday was "not nearly as much as a stunt as them keeping their professionals out of the public eye for years." She said it was inexcusable that the CFO and the auditors were not at the budget hearing. She said this was a ploy to mask how much trouble the city is in fiscally.
The legal mess
Now what is left over is a legal nightmare. Were the firings legal? Should Giacchi have been able to vote? According to City Attorney Joseph Sherman, the removal of Picardo was not proper because he is a civil servant and should have been given 48 hours' notice for a closed session hearing. He added that Picardo should have been giving an opportunity to defend himself.
Sherman also said that the mayor has the authority to hire and fire, not the City Council, and the City Council can only overturn the mayor with a two-thirds vote.
Soares responded that might be true if they were firing him from the tax collector's position, but the acting CFO job is a temporary title and is at the discretion of the City Council.
As for Ernst and Young, according to Sherman, there is nothing in their contract that requires them to attend City Council meetings. Therefore, he said, they were fired on false pretenses.
Soares responded that the decision to terminate the contract was based on the firm's overall performance, and not just the fact that they don't come to meetings.
Next meeting
Roberts has called for a special meeting of the City Council for next Tuesday at 6:30 p.m. to try and clear up the issue. With the five-member majority present, they might attempt to rescind the firings. Soares said that he would fight the idea because now that Ernst and Young is fired, the contract should be bid out.
Knowing this City Council, chaos again could break out. And the restrooms, like the council chambers, will again be open for people to do their business.
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