COURT HOUSE – Wildwood Mayor Ernie Troiano Jr. may need a new lawyer in his criminal case, after his defense attorney received an offer for his “dream job” as an environmental crimes prosecutor in the state Attorney General’s Office, a job he said he plans to accept.
Brian Pelloni, the lawyer, told Superior Court Judge Bernard E. DeLury Jr. at a hearing Friday, Jan. 26, that if he takes the state’s offer in the Division of Criminal Justice, it doesn’t necessarily create a conflict in his continuing to represent Troiano.
Troiano told the judge he would like to keep Pelloni, who has been defending him since health benefits fraud charges were first brought against him by the Attorney General’s Office in June 2022, even after the lawyer accepts the job offer from the agency prosecuting him.
However, DeLury said the situation still might create ethical issues that could force Pelloni off the case. He asked both sides to file briefs on the issue, after which he will consider it further.
While Troiano testified he would never get in the way of Pelloni’s taking the new position, he is suspicious of the Attorney General’s Office’s motive, only now offering the job he said Pelloni first pursued more than a year and a half ago.
“I personally question the timing, that a year and a half later, not hearing anything from the Attorney General’s Office, in the middle of a trial, that this job would mysteriously pop up and be available to him,” he told the judge. “I do not want to remove or get rid of my attorney. I have all the faith in the world in his ability to clear me of these charges.”
DeLury said in response to Troiano’s statement: “While the defendant may have indicated that perhaps the offer was made to advantage your office [the state] and disadvantage him, I don’t know that Mr. Pelloni has any evidence to that regard.”
Troiano, along with former Mayor Pete Byron and Commissioner Steve Mikulski, is under indictment for second-degree official misconduct, second-degree theft by unlawful taking, third-degree tampering with public records and fourth-degree falsifying or tampering with records.
The state alleges they unlawfully accepted health benefits reserved for full-time city employees while serving as part-time elected officials. The three defendants have said they did work full time, well over the 35-hour weekly schedule the statute refers to.
The job offered to Pelloni is within the Attorney General’s Division of Criminal Justice, but a different unit within the division is prosecuting Troiano. The charges are being handled by the Office of Public Integrity and Accountability.
“This job is truly my dream job,” Pelloni said, adding he has multiple degrees in environmental science and environmental engineering. “It was always a position that I was interested in. It did not become available until just recently, which is why it timed the way it did.”
Deputy Attorney General Brian Uzdavinis said he would seek further guidance from his office on the state’s position with regard to a potential conflict, now that it is clear Pelloni wants the state job. He said, at a minimum, the state would ask Troiano for an on-the-record waiver of the conflict.
“It is its own separate entity with its separate director,” Uzdavinis, who is prosecuting the case, told DeLury during the Jan. 26 hearing. “We are completely walled off, more or less. However, the state would understand the obvious implications of us both working for Division of Criminal Justice.
“This could be an unwaivable conflict legally, in which case the state would be very hesitant to proceed with Mr. Pelloni representing Mr. Troiano, just for purposes of if there is indeed a conviction it lays immediate grounds for appeal.”
Pelloni expressed interest in remaining on the Troiano case and said he would be ready to try the matter tomorrow.
“We’re ready to proceed to trial,” he told the judge. “I’m not sure the status of the state at this point, but the faster we can move the matter to conclusion the better.”
Pelloni said the job he plans to take is different enough from that of Troiano’s prosecutors that he doesn’t see a conflict, echoing much of the prosecutor’s understanding of the separation between the units within the Attorney General’s Office.
“It’s a different unit than OPIA (Office of Public Integrity and Accountability),” Pelloni said in court. “Completely different chief of staff. Different directors. No real connection, as far as I understand, with the division that’s handling the matter against my client. I don’t believe there’s any communication between them, as far as I understand. From what I’ve seen under these circumstances, there really is no actual conflict at this point.”
Despite the statements by the attorneys and Troiano testifying that he would waive the conflict, DeLury said the ethical issue may be one that cannot be overcome.
“The attorney general is a unitary person who is responsible for the enforcement of the laws of this state,” the judge said. “So, irrespective of how the administration of the Attorney General’s Office and Department of Law and Public Safety may be aligned, that’s the reality we’re dealing with.”
Byron and Mikulski’s Matters
Mikulski had his appearance waived and was not in court Jan. 26. Dave Stefankiewicz, his attorney, did appear for him and said he wasn’t sure what his client would think of the fact that Troiano’s defense lawyer would potentially be trying the case while working for the agency prosecuting it.
Stefankiewicz said he would wait until the issue of severance is decided before addressing the conflict issue further.
Eric Shenkus, Byron’s lawyer, said he is still waiting for discovery. He said he hasn’t filed any motions because he still doesn’t know what all of the evidence is, and he reminded the prosecutor that he has raised that issue at every hearing so far.
“We’re anxious to get to trial, but I don’t know how I am going to do that until the state sends me discovery,” Shenkus said.
Other Pending Matters
Severance – Troiano is seeking to have his case tried separately from his co-defendants, Byron and Mikulski. There is a pending motion for severance filed by Troiano before the court, which DeLury said will be decided Feb. 16. Stefankiewicz said he is also seeking severance for his client, Mikulski.
Civil Case – A civil case seeking declaratory relief was filed in Cape May County Superior Court by Troiano and Mikulski last month. The suit asks for a ruling on a legal interpretation of language in the state health benefits law, with regard to what the requirements are for an employee to be considered full-time, working at least 35 hours per week.
All parties have been served, but no answers have been filed in the case, according to Pelloni, who added he anticipates that case moving in a summary fashion.
The outcome of that would not necessarily address the law retroactively, Pelloni said. At the crux of the civil case instead is whether Troiano and Mikulski are entitled to benefits in the terms they are currently serving on the Wildwood Board of Commissioners.
When Is the Criminal Trial?
Despite the defense’s interest in expediting the case, Uzdavinis said he has another trial in Camden County that is scheduled for late March and continuing into April, which would make an April trial date in the Wildwood case “very difficult to manage.”
DeLury said he would put a place-holder in his calendar for a trial beginning the week of April 8 and running through the week of May 27.
If that April date holds, the prosecution would be compelled to move for an adjournment, Uzdavinis said.
Contact the author, Shay Roddy, at sroddy@cmcherald.com or 609-886-8600, ext. 142.
