ALLENTOWN, Pa. — The courts should throw out Allentown City Council's lawsuit against Mayor Matt Tuerk and Finance Director Bina Patel because the body has no legal leg to stand on, the administrators’ lawyer says in a court filing.
Gretchen Petersen, of Fitzpatrick Lentz & Bubba, hit back in her filing Oct. 3, about a month after city council sued Tuerk and Patel.
Council — through its litigation and lawyer, Mary Kay Brown — alleges Tuerk and Patel are obstructing its ongoing investigation into claims of racism and discrimination within city government.
But Petersen asked a judge last week to throw out the lawsuit in separate filings of more than 30 pages each.
She argues council has no legal right to sue because the body violated the process its own members established to hire former FBI special agent Scott Curtis and his company, FLEO Investigations.
“City Council has not been negatively impacted in any real and direct fashion,” so there is no injury — a requirement for legal standing.Gretchen Petersen, lawyer for Mayor Matt Tuerk and Finance Director Bina Patel
Council members initially worked with city staff to seek proposals from investigative agencies before breaking with that process to hire Curtis.
The secondary process that led council to Curtis has caused months of fighting between officials.
Council has set aside $20,000 for litigation against the mayor, and $300,000 — or more — for Curtis’ investigation.
Councilman Ed Zucal pushed his colleagues to establish a secondary process that sidelined administration officials from the process to hire an investigator.
Letting those officials participate in the hiring process “caused an inherent conflict of interest,” council said in its lawsuit.
Less than two weeks later, the mayor listed more than a dozen concerns in a three-page memo to council. Many of those concerns form the basis for Petersen’s defense of Tuerk and Patel.
Petersen argues Curtis was not hired through the correct process, so the court can't force city officials to honor that “improper retention.”
No injury, no case: Mayor's lawyer
Less than two weeks after council hired Curtis, Tuerk announced he would not honor the body's engagement letter with the former FBI agent.
Tuerk called the deal “defective for many reasons” and made it clear the city would not pay Curtis for any investigative work under the terms of his engagement letter with council.
Council, in its lawsuit, asked Lehigh County Court to declare the engagement letter valid and force Patel to establish an account for Curtis to pay any invoices he submits for his work.
But Curtis has yet to submit any invoices; “therefore, [Patel] could not have refused to pay any of FLEO’s invoices to date,” Petersen argues in her filings.
“City Council has not been negatively impacted in any real and direct fashion,” so there is no injury — a requirement for legal standing, Petersen writes.
Council in October 2023 passed an ordinance that says a committee consisting of Council President Cynthia Mota and members Ce-Ce Gerlach and Ed Zucal will work with the city’s Purchasing Bureau “to implement the proper procurement procedures.”
But in February members unanimously approved a resolution to sideline administration officials from the hiring process.
Petersen argues council should be legally bound by the October 2023 ordinance and not the resolution it later approved to ditch that process.
An ordinance is law, while a resolution is merely a statement of council’s support for initiatives or groups, its goals or its intent to pass legislation. It holds no legal weight.
Council approved no other ordinances related to the investigation, nor did it officially amend the initial ordinance authorizing the investigation.
“Based on the language of the ordinance drafted and passed by City Council, City Council was required to proceed under proper procurement procedures in order to retain an outside investigator,” Petersen argues.
Council’s hiring of Curtis was “invalid and unenforceable,” Petersen writes in the filings.
Her filings also allege council violated the state Sunshine Act by not publicly voting on whether to sue Tuerk and Patel.
Petersen is urging a Lehigh County judge to dismiss council’s lawsuit “in toto with prejudice,” which would mean council could not re-file a similar complaint.
A Lehigh County judge last month scheduled a virtual status conference between both sides' lawyers for Jan. 27.
