Friday, October 6, 2017

Commercial settles lawsuit with former Mayor.

On May 19, 2017 this blog reported on a lawsuit Commercial Township (Cumberland County) filed against its former Mayor claiming that he intentionally breached a Memorandum of Understanding (MOA) that the Mayor signed in March 2016 shortly after abruptly resigning from office.  On September 7, 2017, the Township and the former Mayor entered into a settlement that resolved the lawsuit.  Background on the Mayor's resignation are reported in a September 25, 2016 blog article.

After former Commercial Township Mayor Judson Moore resigned from office, he entered into a May 16, 2016 MOA that was signed by four Township employees who had filed harassment complaints against Moore.  The MOA forbade Moore from harassing the complainants, as well as their friends and relatives.  It also prevented Moore from seeking public office or employment in the Township, forbade him from making "excessive or multiple OPRA requests" or attending public meetings with an intent to "harass, provoke and/or unreasonably interrupt the ongoings" of those meetings and also forbade him from visiting the municipal building except for "general business as a township taxpayer."

Notably, the MOA did not contain any enforcement mechanism except to provide that if any violations of the MOA were not corrected after notice was given, "the parties shall consent to a neutral mediator to determine whether or not such actions shall make this ongoing negotiated agreement null and void."  The Township's March 29, 2017 lawsuit alleged that Moore announced at a fire district meeting that the MOA "does not hold water," presumably because of the lack of a meaningful enforcement mechanism.

The settlement of the Township's lawsuit against Moore took the form of an amended MOA that was signed by the parties and Moore's four harassment complainants on September 7, 2017.  It supersedes the original MOA and amended some of the restrictions that the original MOA imposed upon Moore.  Nothing in the amended MOA prevents Moore from making excessive OPRA requests or restricts him from attending public meetings and visiting the municipal building.  The amended MOA only prevents Moore from becoming a paid or unpaid Township employee, running for Township Committee and from initiating conversations with the employees who accused him of harassment concerning those accusations. 

As for enforcement, the amended MOA provides that if anyone needs to enforce the new MOA's terms in court, the winner will have his or her attorney fees reimbursed by the amended MOA's violators.  The amended MOA also contains releases by the four employees, Moore and the Township from anything that has happened in the past.

Tuesday, September 26, 2017

Franklin Township (Gloucester) Administrator, a lawyer, consents to reprimand.

In a September 22, 2017 letter, the New Jersey attorney ethics system's Disciplinary Review Board (DRB) informed the New Jersey Supreme Court that the Board had granted a motion to reprimand an attorney who served as a judge of the Franklin Township (Gloucester County) Municipal Court and as Municipal Prosecutor for the Cumberland Salem Municipal Court while she was ineligible to practice law.  The disciplined attorney, who consented to the reprimand, no longer serves in either of those positions--she currently serves as Franklin Township's Administrator.  (Update 10/14/17: According to the Township's October 13, 2017 response to an OPRA request, Nancy Kennedy Brent currently holds two positions with Franklin Township: Township Administrator for which she receives $66,666.67 annually and Director of the Department of Law for which she receives $32,500 annually.)

The DRB's decision arose out of my April 3, 2015 grievance against Nancy Kennedy Brent.  I filed my grievance after learning that Brent prosecuted cases before the Cumberland Salem Municipal Court in November 2013 even though she was then ineligible to practice law for failing to comply with Interest on Lawyers Trust Accounts (IOLTA) requirements.  According to a March 31, 2015 letter from the IOLTA Fund, Brent was ordered ineligible to practice law from November 4, 2013 to January 30, 2014 because she failed to submit "the proper IOLTA registration form" in a timely manner.

The DRB, however, found that Brent was illegible to practice law for time spans greater than those reflected in the Fund's March 31, 2015 letter.  The DRB found that Brent was ineligible to practice law from November 5, 2008 to May 29, 2009 and from October 21, 2011 to January 30, 2014 for IOLTA compliance issues.  During some of those periods of ineligibility, Brent served as either Municipal Prosecutor for the Cumberland Salem Municipal Court (between at least January 3, 2013 and January 30, 2014) or Judge of the Franklin Township Municipal Court (between August 10, 2011 and December 2011).

The DRB also found that apart from periods of ineligibility arising out of IOLTA deficiencies, Brent was also ineligible to practice law for four days in August 2014 because she failed to register with the Client Protection Fund and for two days in November 2014 for not complying with her continuing education responsibilities.

Brent maintained that she did not knowingly practice law while ineligible. Disciplinary officials found that, in dealing with the Client Protection Fund, Brent "was fully aware of her obligations but frequently waited past the deadline and submitted payment at a point she estimated would be immediately before the Court would issue an ineligibility order" and that she had "delegated the management of IOLTA and attorney registration to others."

In its letter to the Supreme Court, the DRB acknowledged that Brent had no prior disciplinary history, took full responsibility for actions and fully cooperated with disciplinary officials.  The DRB also found that Brent had medical issues during the periods under review and lacked sufficient funds to pay the fees necessary to stay current with her obligations.

Thursday, August 31, 2017

Charge dismissed against cop's wife who allegedly sent cookies laced with dog feces to her daughter's school.

Note: This case was brought in early 2014 and was disposed of in mid-2015. Despite its age, I believe that the outrageous nature of the alleged offense, the fact that the case was ultimately dismissed and the fact that it has never before been reported causes it to presently be of legitimate public interest.  

According to a complaint filed on February 6, 2014 in the Wyckoff (Bergen County) Municipal Court, a Waldwick woman, who was the wife of a Ho-Ho-Kus Borough police officer, "sen[t] chocolate chip cookies to [her daughter's] school tainted with dog feces, with the intent that they would be consumed by the same student who had been taking cookies from her daughter without consent on numerous occasions in the past."

The defendant in the case was Theresa L. Cariddi-Tiernan, the wife of now retired Ho-Ho-Kus police officer Peter Tiernan.  According to a heavily redacted police incident report, some sort of post--probably a social media post--by Cariddi-Tiernan regarding the tainted cookies came to the attention of Waldwick Police Officer Dave Passeretti who brought the information to Sergeant Joseph Soto of the Wyckoff Police Department where Cariddi-Tiernan's daughter's school is located.  The two officers arrived at the school prior to lunch to retrieve the cookies and learned that Peter Tiernan had already been to the school, privately spoke to his daugher and apparently removed the cookies.

Soto said that after interviewing Cariddi-Tiernan he told her that she was free to go.  He said that he had several conversations with Bergen County Assistant Prosecutor Martin Delaney and that it "was decided that under the circumstances, the appropriate charge would be [N.J.S.A.] 2C:33-2a(2) Disorderly Conduct."  Soto reported that he mailed Cariddi-Tiernan a summons.

According to the court's disposition, Cariddi-Tiernan applied for a "conditional dismissal" on May 21, 2014.  The application was apparently successful because the disposition shows a "dismissed - other" entry in June 2015.  Unfortunately, the handwriting of the court official who wrote the entry on the disposition is mostly illegible but the words "satisfied" and "probation" are legible.

Cariddi-Tiernan's husband, Peter Tiernan, filed a lawsuit in March 2013 against the Ho-Ho-Kus police department and police officials alleging that he was unlawfully denied a sergeant's promotion on account of his age.  According to DataUniverse, Tiernan retired in 2013 and is collecting an $82,995 annual pension.  A June 25, 2015 article in The Record reports that Tiernan settled his lawsuit for $80,000.

Wednesday, August 23, 2017

Four law firms working on one lawsuit against Linden cops have thus far billed $140K.

On February 26, 2015, Patrick M. St. Fleur filed a lawsuit against the City of Linden and various police and other city officials claiming wrongful arrest, excessive force, report fabrication and destruction of evidence.  The city and/or its insurer has retained five lawyers from four separate law firms to defend against the lawsuit:

a) Robert F. Varady from the Union firm of LaCorte Bundy Varady & Kinsella to represent the City of Linden, its police department and police chief.

b) Michael A. D'Anton, Sr. of the Secaucus firm of Chasan Lamparello Mallon & Cappuzzo,PC to represent municipal prosecutor Nicholas P. Scutari. (Scutari also serves as a State Senator.)

c) Robert F. Renaud and Catherine M. DeAppolonio from the Cranford firm of Palumbo Renaud & DeAppolonio to represent police officer Martin Jedrzejewski.

d) Edward J. Kologi from the Linden firm of Kologi Simitz to represent police employees Gavin Sheehan, Jason Mohr, Andrew Bara, Charles Crane and an employee whose last name is Petruski.

Even though this case is far from over--it's still in the discovery phase--the four law firms have thus far billed the City's insurer $139,971.21: Varady's firm has billed $26,035.35, D'Anton's firm has billed $42,571.77, Renaud's and DeAppolonio's firm has billed $37,087.50 and Kology's firm has billed $34,276.66.  As the billing cover sheet notes, "Please note that litigation in this matter is on-going. As such, these totals are expected to increase accordingly."

It strikes me that there should be a more efficient and less expensive way of resolving this sort of claim.

Wednesday, August 16, 2017

Ethics committee accuses Moorestown lawyer of backdating client engagement letter.

On June 5, 2017, attorney disciplinary officials charged a Moorestown lawyer with not having a written contingency fee agreement with homeowners who sued Lockheed Martin for contaminating their groundwater and for having her client later sign a backdated version of the agreement.

According to the ethics complaint, Robert L. Ebby, Steven T. Miano, and Robert A. Wiygul, three attorneys representing Lockheed Martin, learned at a deposition that a husband and wife who were clients of Moorestown lawyer Julie A. LaVan were "not aware of any letter from [LaVan] describing their fee arrangements."  The husband allegedly testified that a contingent fee agreement that he and his wife entered into with LaVan called for the attorney to receive "approximately 30 percent of any settlement or recovery" from Lockheed Martin but that the agreement was never reduced to writing.

The Rules of Professional Conduct require lawyers to "communicate in writing the basis or rate of the fee" at the time the representation begins.  Those rules also require lawyers who work on contingency to enter into a written contract with the client that sets forth the percentage of the recovery that the lawyer will receive if the case is successful.

The ethics complaint also accuses LaVan of having the husband, in February 2013, sign an engagement letter dated August 2, 2012.  The complaint states that LaVan engaged in "dishonesty, fraud, deceit or misrepresentation" by "backdat[ing] that document . . . and producing the backdated [letter] to Lockheed Martin during discovery."

In her answer to the complaint, LaVan said that the engagement letter she gave to Lockheed Martin during discovery "was in fact prepared or or about August 2, 2012."  She said that she "located that letter dated August 2, 2012 on her computer and, according to her usual practice, would have provided that letter to [the husband] on or about August 2, 2012 with the request that he sign it."  But, when LaVan "was unable to locate a signed copy of the letter, she asked [the husband] to sign it as she believed he did or would have on or about August 2, 2012."  As for the contingency agreement, LaVan "she has been unable to locate a copy of a retainer and compensation agreement . . . that was signed on August 2, 2012 [and that it] is possible that such a letter exists despite [LaVan's] present inability to locate it."

In her defense, LaVan argued that this was nothing more than her misplacing documents and that nothing was done intentionally or maliciously to harm her clients or mislead Lockheed Martin.  She said that her clients have no complaint about the matter and that she has had an unblemished disciplinary record since becoming a lawyer in 2006.

LaVan indicated that there might be some bad blood between her and Ebby, Miano, and Wiygul.  She claimed that she and her adversaries "had pending motions for sanctions against one another" during the litigation where the allegations against her were "the same or substantially similar to" the charges contained in the ethics matter.  She said that her adversaries "[p]roposed, drafted and submitted a Release of" those claims during the litigation and are now bringing those charges again "as belated alleged ethics violations."

The case is captioned District IIIB Ethics Committee v. Julie A. LaVan, Docket No. IIIB-2016-0026 and the complaint and answer are on-line here.  The case is being presented (i.e. prosecuted) by Joseph Schramm, III of Princeton and LaVan is represented by Marshall D. Bilder of Lawrenceville.

What is written above is just a summary and the complaint and LaVan's answer should be read in their entirety in order to obtain the best understanding of the case.  The ethics charges are only allegations--nothing has been proven. LaVan has a right to a hearing and the burden of proof is on disciplinary officials to prove that she violated the Rules of Professional Conduct by clear and convincing evidence.

Since 1995, attorney disciplinary hearings have been open to the public. Anyone who is interested in being notified in advance of any hearings on LaVan's matter may complete and send a hearing request form to the District IIIB Ethics Committee Secretary Cynthia S. Earl via fax to 856- 642-7471.

Monday, August 14, 2017

Recently discovered: Maple Shade police officer found not guilty of 2012 drunk driving charge.

This goes back more than five years, but I believe that this police officer's acquittal on a drunk driving charge is of legitimate public interest especially because the acquittal, to my knowledge, was never published in the press even though the original charge did receive media attention. 

On May 17, 2012, the Burlington County Times published an article entitled "Maple Shade police officer charged with DWI after Pennsauken crash." The full article cannot be viewed by those who do not subscribe to the Times but its first line, which is visible at the link above, states: "A Maple Shade police officer was driving drunk when he crashed a township-owned car into several street signs and a streetlight in Pennsauken on an early April morning, authorities [allege] . . ."

The only other reference I can find on the Internet regarding this event is a May 16, 2012 Courier Post article that states that the officer involved, Scott Pacheco, remained on duty after being charged with being "drunk when he wrecked a township police vehicle on his way home from a bar around 5 a.m."  The article went on to report that Pacheco's April 4, 2012 drunken driving charge was scheduled for a May 15, 2012 hearing before the Pennsauken Municipal Court but was postponed.  It further stated that "Pacheco, 28, a six-year veteran, was not on duty at the time of the crash, but was driving a 2006 blue Ford Crown Victoria assigned to the Maple Shade department" and that Pacheco, who allegedly "had a blood-alcohol level of .14 percent following the crash, nearly twice the legal limit of .08 percent" was "allegedly driving the vehicle eastbound on Maple Avenue when he bounced over the right curb, and plowed through two street signs before striking a light pole." The article further reported that police records showed that Pacheco's "eyes were noted as being watery and bloodshot" and that he "told a responding officer he was on his way home from Bryson's Pub on Cove Road in Pennsauken."

In response to an Open Public Records Act (OPRA) request, the Township of Pennsauken released a motor vehicle crash report, the DWI summons issued to Pacheco and the report from the Alcotest machine. These three documents confirm the information contained in the Courier Post article.

In response to Judiciary Request, the Pennsauken Municipal Court disclosed a computer printout that showed that Pacheco was found not guilty of the DWI charge on April 4, 2013, exactly one year after the charge was made.  The printout also shows that due to a conflict, the case was sent to the Camden City Municipal Court for disposition.  Further information, such as the reason why the State could not prove Pacheco's guilt, is unknown at this time and is probably available only on the audio recording of the court proceeding, if such still exists.

Tuesday, August 8, 2017

Jury awards $127,998 to former Ocean City lifeguard who claimed age discrimination.

According to a July 27, 2017 court order entered by Cape May County Superior Court Judge Noah Bronkesh, a jury awarded a former lifeguard who sued Ocean City for age discrimination $127,998.

In his complaint, Paul McCracken claimed that City officials, by removing $53,000 from the Beach Patrol's budget in 2008, intentionally targeted senior lifeguards due to their age.  He claimed that the cut forced older lifeguard such as himself to retire or face reductions of their pensions.

McCracken claimed that City officials "concocted a scheme" to get rid of lifeguards "who did not bow to the pension pressure" by increasing their run and swim testing requirements so that they could not qualify for their positions.  He claimed the the officials behind the alleged scheme were Fire Chief Joseph Foglio, Deputy Fire Chief Charles Bowman and Beach Patrol Operations Director Thomas Mullineaux.

McCracken's lawsuit stated that even though he passed the run test, McCracken failed the swim test by three seconds.  He said that his failure to pass the swim test resulted in him being fired on June 27, 2011.

The case is captioned McCracken, v. City of Ocean City, et al, Cape May County Superior Court Docket No. CPM-L-277-13 and McCracken's attorney was initially Alan J. Cohen of Northfield and later Kevin Costello of Mount Laurel.    The lawsuit and court order are on-line here.