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.

Plainfield cop acquitted of charges arising out of off-duty "laundry-room etiquette" fight.

On August 7, 2017, a three-judge Appellate Division panel acquitted a Plainfield (Union County) police officer of all charges that arose out of an off-duty altercation he had in a Jersey City apartment building's laundry room that left another man unconscious on the floor.

According to the Appellate panel's opinion, Officer Eric Groething and Nicholas Garret engaged in a physical confrontation in a laundry room that was captured on tape by the building's security cameras.  The panel said that the reason for the altercation was best described as a "violation of laundry-room etiquette."  After an investigation by Jersey City police, Garret was charged with aggravated assault against a police officer although the panel later found that Groething's "status as a police officer played no role in this matter [because he] was off-duty, wore civilian clothes, and was performing a purely personal task when he engaged Garret."  The Hudson County Prosecutor downgraded the charge against Garret to simple assault a few days later. Garret filed citizen complaints against Groething for simple assault and harassment.

After a two-day trial in Jersey City municipal court, both men were found guilty of the lesser offense of engaging in a fight or scuffle entered into by mutual consent and also found Groething guilty of harassment.  On appeal, a Hudson County Superior Court judge, after finding that Groething was the aggressor and that Garret merely defended himself, acquitted Garret.  The judge found Groething guilty of simple assault and dismissed the harassment conviction.  The judge also required Groething to take "anger management and/or cultural sensitivity [training] . . . as a result of the assaultive behavior in this particular matter."

The Appellate panel ruled that once the Jersey City municipal court found Groething guilty of engaging in a fight entered into mutual consent, that finding operated as an acquittal of the simple assault charge because the fighting charge is a "lesser included offense" of simple assault.  The Appellate panel found that Groething suffered double jeopardy when the Superior Court judge imposed a simple assault conviction after the municipal judge implicitly acquitted him of that charge by finding him guilty of a lesser included offense. Accordingly the panel vacated Groething's simple assault conviction. Also, since the Superior Court judge found that Garret was not guilty of the fighting charge because he did not give his consent, the Appellate panel reasoned that Groething must also be not guilty of the fighting charge because, absent Garret's consent, there could have not been mutual consent.

Garret has sued Groething, the City of Plainfield and his apartment building in Garret v. City of Plainfield, et al Docket No. HUD-L-2896-16.  That civil case is still pending.

Former Roseland cop to get another chance to contest his firing.

On August 8, 2017, a three-judge panel of the New Jersey Superior Court, Appellate Division held that Essex County Judge Thomas R. Vena applied the incorrect legal standard on June 25, 2015 when he affirmed a hearing officer's determination that a Roseland police officer should fired.

According to the Appellate Division's ruling, misconduct charges were filed against former Roseland police officer Freddie Mitchell "arising from his involvement in a marital dispute and relating to his failure to obey the department's order to submit weekly reports and other measures to remediate [Mitchell's] alleged issues."  Roseland's Borough Council adopted the recommendation of a retired Superior Court judge, who presided over Mitchell's administrative hearing, that Mitchell be fired.  When Mitchell appealed, Judge Vena incorrectly applied the "arbitrary, capricious or unreasonable" standard in reviewing the hearing officer's and the Borough's decisions.  According to the Appellate Division panel, Vena should have used the less deferential "de novo" standard.

The panel remanded the case back to Essex County and a new trial is scheduled for October 16, 2017, 9 a.m. before Judge Dennis F. Carey, III.

Thursday, August 3, 2017

Burlington County police chief placed on paid administrative leave after FOP Lodge issues "no confidence" vote.

The chief of police in a Burlington County township has been placed on paid administrative leave on July 31, 2017--the same day that the township's mayor and council received a four-page letter from the police union that announced "a unanimous vote on no confidence" in the chief.

According to an August 3, 2017 letter from Florence Township Administrator Richard A. Brook, Chief John Bunce, whose 2017 salary is $130,691, "is currently employed by Florence Township; however, he is on paid administrative leave effective July 31, 2017."

Following Brook's letter at the link above is a four-page, July 31, 2017 letter from Chris Powell, President of the Florence Township Fraternal Order of Police Lodge No. 210, stating that the Lodge unanimously voted that it had "no confidence in Police Chief John Bunce" and that Bunce has "brought embarrassment to the Township."

The letter, which alleges that Bunce operates under a "do as I say, not as I do" policy, accuses Bunce of violating rules regarding proper access and use of criminal justice system databases.  The FOP letter also accuses Bunce of "taking extended leaves during his shift," announcing that he is attending meetings when he is actually going home.

Powell also alleged that Bunce took surveillance cameras that were donated to the department by a local business to his own home "and utilized them for his personal benefit."  Bunce also stands accused of "accepting donations from Amazon and then using those donations as gifts for family and friends" and misusing the department's Internal Affair process to target and retaliate against particular officers.

Tuesday, July 18, 2017

Appellate Court: East Orange under no duty to pay $300K excessive force verdict against police officers.

In a July 16, 2017 decision, the New Jersey Superior Court, Appellate Division, affirmed an Essex County trial judge's ruling that the City of East Orange is not responsible for paying a $300,000 verdict a woman obtained against two city police officers in 2009. 

Esmay Parchment, then 62, had claimed that the two officers, William Flood and Kim Johnson, had barged into her home in February 2001 when she answered her door wrapped only in a towel. According to February 4, 2012 Star Ledger article, when Parchment wasn't quick enough to answer the officers' questions, they allegedly slapped and kicked her "even after the towel fell away and she lay naked on her kitchen floor."

The appeals court, as well as the trial court, found that the City had decided to "go bare" by electing not to purchase insurance or participate in a joint insurance fund.  Both courts found that the City's decision to defend the officers in court did not force it to indemnify those officers if a judgment was entered against them.  Also, the Star Ledger article quotes an assistant city attorney as saying that "the city has no obligation to pay the settlement because the officers were found individually liable."

Monday, July 17, 2017

Cumberland SPCA discloses invoices. Discounts not passed on to taxpayer in some cases.

In response to a court order, the Cumberland County Society for Prevention of Cruelty to Animals (CCSPCA) disclosed unredacted versions of invoices that it had received from a veterinary clinic and submitted for reimbursement to the City of Millville.  In some cases, the unredacted invoices show that the clinic had given the CCSPCA a 50% discount that the CCSPCA's redacted versions, which were submitted to the City, did not reflect.  In sum, the CCSPCA in certain cases received discounts from the clinic that it did not pass along to Millville taxpayers.

As an illustration, I have posted a five-page document here.  The first page shows that CCSPCA invoiced the City of Millville for, among other items, $48 and $101 for exam and euthanasia cases SC34786 and SC34788, respectively.  Pages 2 and 4 are redacted versions of the clinic's invoices for cases SC34786 and SC34788, respectively, that Millville provided in response to an Open Public Records Act (OPRA) request.  Millville claimed that those invoices, which disclosed only the $48 and $101 figures and not any discounts, were redacted by the CCSPCA prior to having been submitted to the City for payment.  Pages 3 and 5 are unredacted versions of Pages 2 and 4 and show that the $48 and $101 charges were actually discounted by $24 and $50.50 respectively.

There is no evidence that the CCSPCA's decision to not pass the discounts along to Millville violated any law or its contract with the City.  Also, some of the invoices disclosed in response to the court order were redacted only to remove information related to other towns for which the CCSPCA performed services.  

Readers who want to compare the unredacted invoices that the CCSPCA disclosed in response to the lawsuit and the redacted versions of those same invoices may find them here and here.  For more information on the lawsuit out of which the court order arose, click here.

Tuesday, July 11, 2017

Burlington judge affirms bridge cop's firing.

In a May 8, 2017 order, Burlington County Superior Court Judge Janet Z. Smith affirmed the Burlington County Bridge Commission's September 13, 2016 decision to terminate one of its police officers for failing to pass a random urinalysis.

According to a September 1, 2016 report written by Hearing Officer James D. Fattorini, Officer Garry S. Church, Jr. (also referred to as Gary S. Church, Jr.) was served with departmental charges on April 21, 2016 because he tested positive for amphetamines as a result of an April 12, 2016 random drug screen.  Fattorini, who also serves as Burlington County Bridge Commission's vice-chairman, found that 6,870 ng/ml of amphetamines were found in Church's urine which was well above cut off level of 500 ng/ml.  Fattorini's report is one of several exhibits attached to Church's civil complaint.

Four days after having been advised of the presence of amphetamines in his urine, Church reportedly told Bridge Commission officials that he had taken some of his father's medicine when he had a sore throat.  During an administrative hearing, Church said that he thought that his father's medicine bottle contained Amoxicillin, an antibiotic, so he took two pills a day from the bottle for five days during April 2016.  According to Fattorini's report, the medicine bottle that that Church offered as evidence during his hearing "was a bottle of Adderall prescribed to his father."  Adderall is an amphetamine. Church reportedly testified that he never read the labels on the bottle and conceded that the label also instructed him that "Federal Law prohibits the transfer of this drug to any other person than the patient for whom it was prescribed."

According to a July 8, 2016 letter from the Commission's Human Resources Director, Church submitted a hair follicle test result to the Commission in early June 2016.  Church apparently believed that the test would prove his innocence. But, the Commission "determined that the hair follicle test did not establish a defense to the violation in this matter, nor did it absolve [Church] of liability."  Yet, Fattorini's report stated: "On May 19, 2016, Officer Church submitted to a hair follicle test which resulted in a negative testing for amphetamines."

In his report, Fattorini wrote: "I [] find that based upon Officer Church's actions and inactions in blindly consuming ten (10) pills, his inaction in not responding with his explanation for a period of four days, his inaction in not getting a hair follicle test for a period of one month, and his action of taking not one, but ten pills admittedly not belonging to him in clear violation of the State statute and according to the bottle, a Violation of Federal law, all lead to the determination that termination is the appropriate disciplinary sanction."

In her May 8, 2017 Order, Judge Smith wrote that she had heard testimony from both Church and his father at an April 12, 2017 hearing.  Based on reasons she orally placed on the record during that hearing, she affirmed Church's termination.

Appellate Division affirms dismissal of insurer's lawsuit against Elizabeth woman and her lawyer for violating "confidentiality clause" in settlement agreement.

It all started with a parking ticket that was issued to Lorraine Selecky in 2009 for parking in a handicapped spot.  The ticket, which was mailed to Selecky, was issued by James Cantrell, an off-duty Roselle Park Borough (Union County) police officer with whom Selecky engaged in an argument at a Redbox video vending machine outside a 7-Eleven store in the Borough.

Selecky was convicted of the offense by a municipal court judge and the conviction was affirmed by a Union County Superior Court judge.  On January 11, 2012, the Appellate Division reversed the conviction and ordered a new trial in a different municipal court.  After the new court acquitted Selecky of the parking offense, her lawyer, Joel I. Rachmiel of Springfield, filed a civil, malicious prosecution action against Cantrell and the Roselle Park Police Department.  That lawsuit resulted in a $15,000 settlement being paid to Selecky by the New Jersey Intergovernmental Insurance Fund (NJIIF)--the Borough's insurer.  But, the settlement imposed a confidentiality clause that forbade Selecky and Rachmiel from disclosing the terms or even the existence of the settlement agreement.

On May 20, 2014, I learned of the settlement through an Open Public Record Act (OPRA) request and published it on my NJ Civil Settlements blog.  That blog article drew the interest of Star Ledger reporter Tom Haydon who wrote a June 1, 2014 article entitled "Elizabeth woman wins five-year battle over parking ticket."

Both Selecky and Rachmiel were interviewed by Haydon and the quotes attributed to them in Haydon's article referred to the underlying parking ticket rather than the settlement agreement.  Still, the NJIIF sued both Selecky and Rachmiel and argued that by speaking with Haydon, they violated the settlement agreement's confidentiality clause.

A Union County Superior Court judge granted Selecky's and Rachmiel's motion for summary judgment after finding that their comments "did not discuss" the malicious prosecution action and that the comments had "nothing to do with" the Borough or the police officer.  The judge found that the only statement that violated the confidentiality clause was made by Borough Attorney Richard Huxford, who was also quoted in the article.  The NJIIF appealed the trial judge's grant of Selecky's and Rachmiel's summary judgment motion and the Appellate Division, in a July 11, 2017 opinion, affirmed that ruling.

Saturday, July 1, 2017

Mullica (again) seeks to pass illegal "Peace and Good Order" ordinance.

On July 11, 2017, the Mullica Township (Atlantic County) Committee will consider enacting Ordinance No. 6-2017 which seeks to establish a "Peace and Good Order" code in the Township.  Among other things, the ordinance will prohibit "participat[ing] in any practice having a tendency to annoy, disturb or frighten any person or animal in any public place."  Also prohibited will be "[a]ll other riotous, indecent or disorderly conduct, breach of the peace and vagrancy not hereinabove specifically mentioned."

These prohibitions are almost certainly unconstitutional because they are overly broad and vague.  The ability to conduct oneself in public without being arrested cannot depend on whether ones conduct might annoy or disturb somebody else.  Otherwise, everyone would be required to conform their conduct to the preferences of the most sensitive person in town.  Penal codes, especially those governing speech and assembly, need to be narrowly tailored to prohibit specific conduct while preserving citizens' rights to lawfully express themselves.

However, according to Committeeman Christopher Silva, the Township's main intention is not to directly enforce the ordinance.  Rather, as Silva stated at the May 23, 2017 Committee meeting, "the focus of the Ordinance is a catch-all to plead out a lesser statute in municipal court."  So, Mullica probably realizes that it can't enforce the ordinance but still wants to have it on the books so that municipal court defendants can plead down their statutory offenses to violations of the ordinance. 

For example, a person charged with simple assault, a violation of the New Jersey Criminal Code, could plea-bargain the charge down to an ordinance violation.  This would allow the defendant to avoid having an assault conviction on his or her record and from having to pay mandatory assessments to the Violent Crimes Compensation Board and Safe Neighborhood Services Fund.

The apparent goal is to entice defendants to not demand costly and time-consuming trials but to instead plea bargain their charges and line up at the Court Administrator's payment window with checkbooks in hand.

Beyond raising troubling policy concerns (e.g. Isn't saddling a violent assailant with an assault conviction on his or her criminal record a good thing?  Isn't it wrong for Mullica to let defendants evade paying into the Violent Crimes and Safe Neighborhood Funds?), Mullica's proposal also runs afoul of a 1998 Attorney General Directive that prohibits municipal court prosecutors from pleading down statutory offenses to ordinance violations when the ordinance is pre-empted by state law.  Since everything prohibited by the ordinance is either unconstitutional or already prohibited by Chapter 33 in Title 2C of the New Jersey Criminal Code, using the ordinance in the manner that Silva suggests would violate the 1998 Directive.

Over the years, I, as chairman of the New Jersey Libertarian Party's Preempted Ordinance Repeal Project, have notified six county prosecutors of violations of Directive and in each case the prosecutor has agreed with me and told the town to stop the improper plea bargains.  Here is the proof:

Bergen (my letter and the reply)
Burlington (my letter and the reply)
Cumberland (my letter and the reply)
Gloucester (my letter and the reply)
Morris (my letter and the reply)
Somerset (my letter and the reply)

Yet, engaging in these prohibited plea bargains is exactly what Silva and the other members of Township Committee have in mind. 

Mullica attempted to pass a similar version of this ordinance in late 2014.  After being roundly criticized by the public and press, the Committee decided to abandon the effort.  See "'Peace and Good Order' / Misguided in Mullica." Press of Atlantic City, December 16, 2014.  The Committee should take a similar tack this time.

Thursday, June 22, 2017

Ethics Complaint alleges that two Council members in Middlesex County town voted to declare five police vacancies when their blood relatives were on the police hire list.

On May 1, 2017, two members of the Sayreville Borough Council voted to declare five vacancies in the Borough's police department while both Council members had blood relatives--a son and a brother--on the certified list of eligible candidates from which those vacant police positions would be filled.  The Council members claimed that the Borough Attorney said that their votes did not violate the Local Government Ethics Law because neither blood relative was financially dependent upon the Council members.

With all due respect to the Borough Attorney, I believe that the Council members had at least a "indirect . . . personal" relationship with their blood relatives which "might reasonably be expected to impair [their] objectivity or independence of judgment." This is the criteria set forth in the Local Government Ethics Law.  Accordingly, I (and the New Jersey Libertarian Party) have filed a formal ethics complaint (see below) with the Local Finance Board against both Council members.

Unfortunately, the public won't know the result of this complaint any time soon. It typically takes two to four years for the Local Finance Board to resolve ethics complaints.

-------------------------------------------
Patricia Parkin McNamara
Local Finance Board
101 S Broad St – PO Box 803
Trenton, NJ 08625-0803
(via e-mail only to Patricia.McNamara@dca.state.nj.us)

Dear Ms. McNamara:

We intend this e-mail to be our complaint against Victoria Kilpatrick and Mary Novak who, at all times relevant to the activities alleged below, served both as members of the Sayreville Borough Council (Middlesex County).  At issue is whether Kilpatrick and Novak violated the Local Government Ethics Law by voting to declare five vacancies in the Borough's police department while their relatives (i.e. Kilpatrick's brother and Novak's son) were on the list of prospective employees from which the five officers who would fill those vacancies would be selected.

In accordance with N.J.A.C. 5:35-1.1(b), following are the required elements of the complaint:

1. State the point of the Local Government Ethics Law (LGEL) alleged to be violated. 

N.J.S.A. 40A:9-22.5(c) and (d).

2. State the name(s) and title(s) of the parties involved in the action and against whom the complaint is filed. 

Complainants John Paff and the New Jersey Libertarian Party and Respondents Council member Victoria Kilpatrick and Council member Mary Novak.

3. Set forth in detail the pertinent facts surrounding the alleged violative action. 

Relevant to this complaint is the video recording of the May 1, 2017 meeting of the Sayreville Borough Council, which is on-line here.  Also relevant is an article entitled "Residents question practices behind hiring Sayreville officers" authored by Staff Writer Matthew Sockol and published by Greater Media Newspapers on May 16, 2017, which is on-line here.

FACTS:

The following facts are apparent from the video and article.

a. Novak and Kilpatrick both have blood relatives on the current list of eligible applicants from which the five vacant police officer positions will be filled.  (Article: According to Mayor O'Brien, "Novak’s son and Kilpatrick’s brother were on the employment list.") (Video: Time stamp 11:40 through 13:09).

b. According to Novak, Borough Attorney Michael DuPont, who was not present at the May 1, 2017 meeting, told her that participating in and voting on a matter impacting on her son's potential employment as a Borough police officer did not run afoul of the Local Government Ethics Law because her son was not her dependent. (Article: "Novak said she was told by borough attorney Michael DuPont, who was not in attendance at the meeting, that she could vote on the matter because it was not an ethical problem as long as the child is not a dependent.") (Video: Time stamp 11:56 through 12:17; 12:45 through 12:53)

c. Kilpatrick asserted that since her brother was not her dependent, she also was not prohibited by the Local Government Ethics Law from participating in and voting on a matter that impacted on her brother's potential employment as a Borough police officer. (Article: "Kilpatrick stated that her brother was not a dependent of hers.")(Video: Time stamp 12:54 through 13:09)

d. During the May 1, 2017 closed session, a straw vote was taken that declared five vacancies in the police department which would be filled by the candidates on the list that included Novak's son and Kilpatrick's brother. (Video: Time stamp 1:39:11 through 1:39:34)

e. When questioned by a representative of the police union regarding the ethical propriety of Novak and Kilpatrick participating and voting on the declaration of five police department vacancies, Labor Attorney Bob Clarke said that while he did not research it himself, Borough Attorney DuPont had said that there was a "solid legal ground" for his conclusion that Novak's and Kilpatrick's participation and voting were not unethical.  (Video: Time stamp 1:39:50 through 1:41:30)

f. The current list of candidates contained no veterans.  (Video: Time stamp 1:45:38 through 1:45:48; 1:48:46 through 1:49:02)

g. As of May 1, 2017, there were veterans eligible to be hired as a Borough police officer, but they could not be placed on the eligibility list unless and until the existing list was returned and new list was created. (Video: Time stamp 1:44:42 through 1:47:12)

h. Any veterans placed on the eligibility list would have been given preference over the other non-veteran applicants when hiring decisions were made. (Video: Time stamp 1:47:45 through 1:48:02)

i. Both Novak and Kilpatrick voted in favor of the public motion to declare the five vacancies. (Video: Time stamp 1:57:53 through 2:00:30)

j. The creation of the vacancies prevented the Council from a new list--one that would include veterans--from being created. (Video: Time stamp 2:00:40 through 2:01:57)

From listening to the recording at 1:49:35 through 1:57:32 and the vote at 1:57:53 through 2:00:30, it becomes apparent that i) by declaring the five vacancies, the Council forced itself to fill those vacancies within a 45-day period; ii) had the Council not then declared the five vacancies, it could have had a new eligibility list certified that would have included veterans who would have been accorded hiring priority over the non-veterans on the list.  Thus, Novak's and Kilpatrick's "aye" votes on the motion to declare the five vacancies inured to the benefit of their blood relatives by helping insure that veterans were excluded from the eligibility list.  In sum, Novak's and Kilpatrick's "aye" votes helped prevent veterans from getting in the hiring queue in front of their blood relatives.

ANALYSIS:

N.J.S.A. 40A:9-22.5(d) states that "No local government officer or employee shall act in his official capacity in any matter where he, a member of his immediate family, or a business organization in which he has an interest, has a direct or indirect financial or personal involvement that might reasonably be expected to impair his objectivity or independence of judgment."

Novak and Kilpatrick appear to argue that N.J.S.A. 40A:9-22.5(i), which defines a "Member of immediate family" as "the spouse or dependent child of a local government officer or employee residing in the same household," somehow exempts them from the scope of N.J.S.A. 40A:9-22.5(d).

Whether or not Novak's son or Kilpatrick's brother resided with these municipal council members or were financially dependent upon them is irrelevant.  Rather, the question turns on whether Novak and Kilpatrick had, at the time of the vote, a "direct or indirect financial or personal involvement that might reasonably be expected to impair [their] objectivity or independence of judgment."  It is plain that a mother (or a sister) has at least an indirect personal involvement in seeing that her son (or brother) receives a desirable position.  And, it is equally plain that a local government officer's relationship with a blood relative "might reasonably be expected to impair [her] objectivity or independence of judgment."  Accordingly, if the Local Government Ethics Law means anything at all, it should not countenance a mother (or sister) voting to give her son (or brother) who seeks public employment an advantage over anyone, especially military veterans.

Further, N.J.S.A. 40A:9-22.5(c) states that "No local government officer or employee shall use or attempt to use his official position to secure unwarranted privileges or advantages for himself or others."  Had the military veterans been allowed onto the list, Novak's son and Kilpatrick's brother would have moved down in hiring priority on the eligibility list.  Their vote allowed Novak's son and Kilpatrick's brother to keep their higher position on the list which is an "unwarranted privilege or advantage."

4. Indicate whether the complaint concerns the complainant in any way and what, if any, relationship the complainant has to the subject of the complaint. 

Complainants have no interest in or relationship to this complaint greater than any other citizen or organization who wishes for all government officers and employees to comply fully with the Local Government Ethics Law.

5. Indicate any other action previously taken in an attempt to resolve the issue and indicate whether the issue is the subject of pending litigation elsewhere. 

No other action has been taken previously in an attempt to resolve this issue and, as far as we know, this issue is not the subject of any pending litigation.

Thank you for your attention to this matter. I ask that you please acknowledge your receipt of this complaint within 30 days.

Sincerely,

/s/ John Paff, Chairman
New Jersey Libertarian Party's
Open Government Advocacy Project

Wednesday, May 24, 2017

Ethics complaint arising out of 2007 transaction filed against New Brunswick attorney in 2017.

A New Brunswick attorney is facing ethics charges for allegedly misleading a judge during a September 17, 2007 hearing regarding the identity of the payee of a $160,000 settlement check.  The attorney is claiming that his "constitutional right to due process is compromised" because length of time that has passed since the hearing and because of malfunctions of the tape recorder that recorded the hearing.

Frank J. Shamy, who maintains an office at 22 Kirkpatrick Street, New Brunswick, is the subject of March 29, 2017 complaint being prosecuted on behalf of the District VI Ethics Committee by attorney Daniel P. D'Alessandro of the Newark law firm of McCarter & English, LLP.  According to the complaint, Shamy successfully negotiated a $240,000 settlement in July 2007 that resolved his client's lawsuit against its insurance carrier.  Although the policyholder was Belov Technology, a dormant corporation that was founded by Dr. Valery Belov, Shamy allegedly remitted $160,000 of the settlement to Dr. Belov personally, rather than the corporation, after having retained his $80,000, one-third share. 

The underlying lawsuit was not initiated by Shamy.  Rather, it was filed by another attorney named Robert Kenny who, according to the complaint, filed the lawsuit but withdrew as counsel in 2006.  The complaint was brought in the name of Sunstone, Inc., another dormant corporation founded by Dr. Belov.

Despite having withdrawn from the matter, Kenny believed that he was entitled to be paid for the work he put into the case.  In order to collect for his work, he filed suit against Dr. Belov, Belov's son and the two corporations (Sunstone and Belov Technology) in February 2007--prior to the $240,000 settlement being negotiated.  Shamy represented the defendants in the fee lawsuit and claimed that Kenny was due nothing because of he withdrew from the case.

Shamy's alleged ethics infraction arose out of what he said and did not say during a September 17, 2007 hearing where Kenny sought to prevent Shamy from distributing the settlement so that Kenny could collect his fee, as determined by the court, from the settlement proceeds.  Even though Shamy had already disbursed the settlement funds to Belov personally, the complaint, referring to the hearing's transcript, quotes Shamy as having told the judge that he disbursed the funds "to the corporations."  This, according to the complaint, misled the court into believing that an order preventing the corporations from disbursing the funds would benefit Kenny when in fact the corporations were merely empty shells with no assets. 

The crux of the complaint against Shamy is that he did not "correct the Court or clarify any confusion that may have been caused by [Shamy's] statement that the settlement proceeds were disbursed to Belov Technology or Sunstone and not Dr. Belov."  D'Alessandro claimed that Shamy's alleged concealment was a "knowing and intentional misrepresentation" that violated several of the Rules of Professional Conduct.

Shamy, in his answer (at the link above, following the complaint), admitted that he disbursed the $160,000 to Dr. Belov personally rather than the corporations and that the transcripts did record him saying "Judge, it was disbursed to the corporations."  But, he noted that immediately prior to his statement to the judge, the transcript reflects that "Tape begins to malfunction."  Shamy wrote that he "had misspoken" but that he never intended to mislead the Court or Kenny.

In his defense, Shamy wrote that he went into the September 17th hearing believing that the critical issue for the court to determine was whether he still had the money in his trust account or whether he disbursed it.  He wrote that he "did not believe whether the check was written to Dr. Belov or the corporations was material to" the hearing.  Since the Court dissolved all restraints that protected the settlement funds at the conclusion of the hearing, Shamy argued, "I don't understand how my statement could have materially misled the Court." "The Court lifted all restraints," he wrote. "Therefore, even if I had written the check to the corporations, at the conclusion of the hearing, those entities were free to disburse the monies as they saw fit."

Shamy is being represented by Donald M. Lomurro of Freehold.

On April 15, 2008, Shamy was admonished by ethics authorities in a separate matter for signing his client's name to a release and for making small, interest-free loans to three clients without first advising them to consult with independent counsel.

What is written above is just a summary and the complaint and Shamy'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. Shamy has a right to a hearing and the burden of proof is on disciplinary officials to prove that he violated the Rules of Professional Conduct.

Since 1995, attorney disciplinary hearings have been open to the public. Anyone who is interested in being notified in advance of any hearings on Shamy's matter may complete and send a hearing request form to the District VI Ethics Committee Secretary Jack Jay Wind via fax to 201-333-1110.

Tuesday, May 23, 2017

Ex-Belleville cop to appear on May 30th for shoplifting charge.

On Tuesday, May 30, 2017, a former Belleville police officer will appear before Essex County Superior Court Judge Martin G. Cronin for a "Plea Disposition Conference" regarding a summons-complaint that charged her with shoplifting a $50 bottle of tequila on December 31, 2015.

Background on this matter is on-line here.

The complaint-summons that charged Wanda I. Posada was issued on March 22, 2017, nearly fifteen months after the alleged offense.  Both the Belleville Municipal Court and the Essex County Criminal Division Manager's office, during phone calls today, said that the May 30th conference is the first scheduled event on this matter and that the matter is still active.

The public may attend this conference but should call the Criminal Division Manager's office at 973-776-9300 ext 56575 the day before the conference to ensure that it has not been postponed.  Refer to State v. Posada, Complaint/Summons No. 0701-S-2017-000212.

Sunday, May 21, 2017

Ethics Committee charges Sussex County municipal prosecutor for prosecuting electric theft case while his brother was electric company's chairman.

On March 2, 2017, the District IX Ethics Committee filed a formal complaint against a municipal prosecutor in Sussex County who prosecuted a Wantage man for allegedly stealing electricity from the Sussex Rural Electric Cooperative while the Cooperative's chairman was the prosecutor's brother.  The ethics complaint alleges that the prosecutor was under a duty to disclose this relationship and that his failure to do so "is reasonably certain to mislead" the municipal court.

The complaint is against William T. Haggerty who serves as prosecutor of a joint municipal court covering Sussex Borough and Wantage and Stillwater Townships.  According to the complaint, David Zukowski of Wantage, who was on trial for allegedly stealing electricity from the Cooperative, asked Charles Tate, the Cooperative's witness, during cross-examination whether the Cooperative's Board of Directors Chairman--Jack Haggerty, Jr.--was related to Prosecutor Haggerty.  In response, Tate said that he had just become aware that day that the prosecutor and chairman were brothers. According to an excerpt from trial trial transcript set forth in the ethics complaint, Municipal Court Judge Craig U. Dana immediately declared a mistrial.

Paperwork supplied by Zukowski shows that he was ultimately found not guilty of the theft of services charge on October 7, 2013.

Zukowski had previously accused Judge Dana of being conflicted because he had previously been appointed judge by the Wantage Township Committee while the Township attorney's law firm served as the Cooperative's general counsel and because F. Parker Space, currently a member of the New Jersey Assembly, previously appointed Dana while Space served on the Cooperative's Board of Directors.  (These allegations are taken from Zukowski's November 4, 2011 letter to Presiding Municipal Court Judge Frank J. Zinna and have not been verified.)  Judge Dana ruled, however, that he was not conflicted from the matter because he was appointed as the joint court's judge by the governor and not by either the Wantage Township Committee or the Sussex County Board of Chosen Freeholders.

In his April 6, 2017 answer to the charges (available at the link in the first paragraph), Haggerty admits that his brother Jack was the chairman of the Cooperative's Board of Directors at the time of the trial but that he "did not consider [his] brother's position as Director to be relevant to the proceeding in municipal court since [he] had never spoken to him about the incident."  He also wrote that he was never "personally close" to his brother and sees him only at Thanksgiving dinner and when he "bumped into him at the grocery store in Newton."

"I regret not having contemplated that the relationship with my brother could present a concern for the Court," Haggerty wrote.  "I would urge that this was not due to any intent to mislead the Court through failure to provide material information to the Court but rather only due to my failure to appreciate that the information might be deemed as material to the proceeding before the Court."

In addition to being prosecutor, Haggerty also serves as attorney for Stillwater Township's Planning and Zoning Boards and may also serve in similar positions in other area municipalities.

The ethics matter is being presented (i.e. prosecuted) by Westfield lawyer Marcie L. Mackolin and Mr. Haggerty is representing himself.

What is written above is just a summary and the complaint and Haggerty'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. Haggerty has a right to a hearing and the burden of proof is on disciplinary officials to prove that he violated the Rules of Professional Conduct.

Since 1995, attorney disciplinary hearings have been open to the public. Anyone who is interested in being notified in advance of any hearings on Haggerty's matter may complete and send a hearing request form to the District IX Ethics Committee Secretary Joseph M. Casello via fax to 732-751-1866.

Friday, May 19, 2017

Commercial Township sues former mayor. Claims he violated Memorandum of Understanding that resolved four harassment complaints against him..

On Monday, June 26, 2017, at 9 a.m., Cumberland County Assignment Judge Georgia M. Curio will hear argument on whether or not a temporary injunction should issue that would prevent former Commercial Township Mayor Judson Moore from violating a Memorandum of Understanding (MUA) that he entered into with the Township on May 16, 2016.  In the underlying March 29, 2017 lawsuit filed by Commercial Township Solicitor Thomas E. Seeley, the Township alleged that Moore had intentionally breached the MUA by running for public office in the Township and for causing the distribution of a letter that named the four employees who had filed harassment complaints against him. 

While the MUA expressly states that "Moore shall not seek a public office in the Township of Commercial, County of Cumberland, State of New Jersey hereinafter," it does not explicitly prevent Moore from publicly disclosing the identities of the four employees who had brought complaints against him.  Rather, the lawsuit states that "[t]he 'good faith' spirit of the agreement was to keep the victims of the harassment anonymous" and refers to a September 1, 2016 decision in Libertarians For Transparent Government v. Commercial Township, et al, Docket No. CUM-L-402-16 where Judge Curio "indicated on the record that she wanted to protect the disclosure of these employees' names."

The lawsuit does not identify the public office for which Moore allegedly filed a petition.  But, the context suggests that it was for a commissioner's seat on one of the three fire districts in the Township.  The suit alleges that Moore attended a Fire District meeting where he publicly stated that the MUA "does not hold water" and that "he, Judson Moore, can hold any position in the township that he wanted in complete defiance of his earlier signed agreement."

The lawsuit also alleges that Moore rejected the Township's attempt to use mediation to resolve the conflict thus requiring the litigation.  The suit asks Curio to, among other things, enjoin Moore from violating the anonymity of the harassment complainants and to pay the court costs and attorney fees incurred as a result of the lawsuit.  Moore has until May 26, 2017 to file and serve his opposition.

Thursday, May 18, 2017

Middlesex County lawyer in ethics hot water for allegedly threatening legal action against "lemon law" client who refused to give Ford Motor a copy of her driver license.

A Metuchen lawyer has been formally charged with violating several Rules of Professional Conduct for threatening legal action against a client who, having twice executed title documents to Ford Motor and having dropped off her "lemon" at a Ford dealership, refused to provide Ford with her driver license so that the company could get a duplicate title.  Apparently, Ford needed to get a duplicate title because the dealership either misplaced the title documents or, as the lawyer suggests, refused to turn those documents over to Ford because the client did not use her "lemon law" settlement proceeds to purchase another vehicle from the dealership.

Mark Silber, a lawyer since 1973 who maintains an office at 10 Station Place, Metuchen, took over a "lemon law" case for Lois Krupowies against Ford Motor Company and a local Ford dealership after Krupowies' former lawyer was unable to continue the case.  Silber was able to settle the case.  As part of the settlement, Krupowies returned the vehicle to the dealership and delivered the executed title and other documents to Silber.  According to the complaint, Krupowies, at Silber's request, executed additional documents "because [the dealership] had misplaced the documents" she had signed earlier. 

The trouble began when in July 2013 Silber asked Krupowies for a copy of her driver license that Silber said Ford Motor Company needed to obtain a new title to the vehicle she had turned in to the dealership six months earlier.  Krupowies refused to provide Silber with a copy of her license because, according to the complaint, Silber wasn't able to explain to her satisfaction why he or Ford Motor Company needed it.  Things turned ugly, according to the ethics complaint, when Silber, in August 2013, sent Krupowies "two threatening text message" telling her that "he was filing an Order to Show Cause seeking his legal fees and costs as well as 'a legal penalty asking for $100/day for each day' she refused to [provide a copy of her driver license]."  Despite the pressure and threats, Krupowies stood firm on her refusal to provide a copy of her license, according to the complaint.  Silber reportedly told Krupowies "that she was jeopardizing his reputation of integrity with Ford and that he needed 'to jealously protect' his reputation with Ford."

The complaint states that Silber then billed Krupowies "for his time spent as a result of her non-cooperation" and "sent monthly bills, adding interest to the amount due, through December [2013]."  Silber then threatened to sue Krupowies in January 2014 for her refusal to pay the legal bills, according to the ethics complaint.

The ethics presenter (i.e. prosecutor), Patricia M. Love of Hendricks & Hendricks, New Brunswick, said that Silber's conduct violated several Rules of Professional Conduct.  Among them: a) Silber's personal interest in "protect[ing] his reputation with Motor Company" conflicted with his duty to his client Krupowies; b) Silber should have recognized the conflict and withdrawn from representing Krupowies; c) Silver failed to protect Krupowies interests "after he effectively terminated their attorney-client relationship in his adversarial threats;" d) Silber violated ruled requiring legal fees to be reasonable by billing Krupowies for services that she didn't ask for and e) Silber's September 25, 2013 letter to Ford divulged confidential information about Krupowies without her consent. 

In his answer, Silber assigned some of the blame to the Ford dealership.  He wrote that it was unlikely that the dealership misplaced the title documents but that "it was more likely that [the dealership] wilfully refused to return the title papers to Ford."  He wrote that in his experience, it was routine for auto dealerships to "make it difficult for any customer to return a vehicle for a refund without then using the money to buy another vehicle at that dealership."  According to Silber's answer, "it is the customer's obligation to guarantee the dealer does its part to get clear vehicle title back to Ford" and that the "[d]ealer's failure to participate falls on the customer."

Silber admits that his actions may have gone too far.  He insists, however, that his actions, although "aggressive," were justified because Krupowies "obligated herself to convey good title to Ford, even if the dealer did not cooperate" and because her settlement gave her a full refund of a the purchase price (which Silber stated was $33,000) of the vehicle plus "$8,000 of shifted legal fees and costs."  Ultimately, he said, Krupowies gave Ford a copy of her license after Ford threatened to sue her.  "While my actions were aggressive, my advice proved to be correct. We were at odds over what she needed to do, and I grew angry with her," Silber wrote.

Silber also admitted that billed Krupowies for his time spent trying to get her to give a copy of her driver license but denied that the fee was unreasonable.  He wrote that if wished he had "canceled her small bill" but that he "grew angry with her and the position she took, and [he] allowed [his] anger to weigh too heavily in [his] decision making."  Silber denied divulging any confidential information to Ford stating that he provided Ford with only the "nature" of his communication with Krupowies.

Silber wrote that he was concerned that he might become personally liable to Ford because he disbursed the settlement funds to Krupowies before she had satisfied her duty to ensure that clear title documents were in Ford's hands.  When he was preparing file a motion against Krupowies, Silber wrote that "it suddenly hit me I was taking an adverse position to my client."  He wrote that after he studied the ethics complaint, he felt "more and more foolish."

Silber had a few things to say about the ethics process itself.  First, he wrote that a previous grievance had been filed against him but it was not docketed.  He said that he "believed the matter was over" and that he "did not foresee it ever coming back to life."  Second, he wrote that he later was approved for a diversion of the ethics matter but that the diversion was later rescinded.  He wrote, "I feel I've been treated unfairly, or at least without the benefit of adequate explanation."

In mitigation, Silber pointed to his unblemished ethics record and his devotion to consumer protection and pro bono work.  He recited acts of charity of buying groceries and train tickets for impoverished clients, including buying steaks for a double amputee client. He also wrote that he disarmed a gunman shooting up a bus in San Antonio, Texas and was awarded a medal for that act of heroism.  He said that even though he was chosen to receive the 2016 Pro Bono award by New Jersey Legal Services, he was "ashamed of being called to the podium to accept an award knowing that at any time my name could be published as an ethics violator."

"I grew angry and impatient with [Krupowies] which infused bad judgment, and maybe some arrogance which, when added to the mix, made me feel I was right when I was wrong," Silber wrote. "I wish I could do it over."

The ethics matter is captioned District VIII Ethics Committee v. Mark Silber, Esq., Docket No. VIII-2014-0023E.  What is written above is just a summary and the complaint and Silber's answer, which are on-line here, 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. Silber has a right to a hearing and the burden of proof is on disciplinary officials to prove that he violated the Rules of Professional Conduct.

Since 1995, attorney disciplinary hearings have been open to the public.  Anyone who is interested in being notified in advance of any hearings on Silber's matter may complete and send a hearing request form to the District VIII Ethics Committee Secretary Barry Muller via fax to 609-896-1469.

Thursday, May 11, 2017

Attorney disciplinary officials claim lawyer practiced law two years after his law license was revoked.

A Red Bank attorney is in trouble with ethics authorities for allegedly continuing to practice law two years after his law license was revoked and after ethics authorities explicitly told him to stop.

According an April 5, 2017 ethics complaint, the Supreme Court revoked William John Bowe's law license on August 18, 2014 due to his failure to file his attorney registration statements and pay annual registration fees for 2009 through 2014. 

On May 6, 2016, the Office of Attorney Ethics was alerted to the fact that Bowe, despite the revocation order, was still practicing law when it was notified by Bank of America that Bowe's attorney trust account was overdrawn. A resulting investigation disclosed several alleged record-keeping violations pertaining to Bowe's trust account including an allegedly improper commingling of personal funds relating to Bowe's mother's estate.

According to the complaint, Bowe, despite knowing that his license was revoked, continued to do legal work for his clients and send them legal services invoices.  According to ethics authorities, Bowe deposited $7,526.29 and $19,056.16 into his attorney business account on July 29, 2016 and September 30, 2016, respectively.  Both dates are after Bowe's June 23, 2016 interview with ethics officials.

The complaint goes on to allege that Bowe, in a January 26, 2017 certification in support of his attempt to have his license restored, misled the Board of Bar Examiners.  Bowe had stated in his certification that in mid-May 2016 he "panicked from the shock of the news" that his law license was revoked and "tried to wind-down certain pending real estate matters with the intent to avoid causing the clients to experience delays or undue prejudice." The complaint alleges that Bowe's certification "deceitfully omits facts and circumstances regarding [Bowe's] unauthorized practice of law, which continued despite multiple notifications from [ethics authorities]."

The ethics charges are only allegations--nothing has been proven. Bowe has a right to a hearing and the burden of proof is on disciplinary officials to prove that he violated the Rules of Professional Conduct. Since 1995, attorney disciplinary hearings have been open to the public.  Anyone who is interested in being notified in advance of any hearings on Bowe's matter may complete and send a hearing request form to the Office of Attorney Ethics in care of Barbara Cristofaro via fax to 609-530-5238. 

Sunday, May 7, 2017

Lawsuit: Burlington municipal court clerks claim they were terminated because they criticized an incompetent judge.

Two former officials of the Burlington City (Burlington County) Municipal Court are suing City officials and the court's former judge for retaliating against them for complaining about the judge's alleged incompetence.  According to the two female plaintiffs, the judge suffered from confusion, improperly incarcerated people and made remarks from the bench such as "Don't trust the prosecutor, he's a democrat."

The plaintiffs in the two consolidated lawsuits are Elizabeth Fitzpatrick and Mary Penny who served, respectively, as the Burlington City Municipal Court's Administrator and Deputy Administrator until their employment with the court terminated in October 2013.  The two lawsuits, on-line here and here, contain similar and sometimes nearly identical allegations.  Both lawsuits allege that the trouble began when Thomas J. Scattergood was appointed as judge on August 5, 2010.  Both women said that it was clear that Scattergood could not properly discharge his duties because of "memory issues, dementia symptoms, confusion, administrative incompetence, and a lack of understanding of laws and/or procedures."  The women claimed that Scattergood improperly jailed defendants, would sometimes "create in his head events and conversations that never took place" and would handle cases where "he had a clear and admitted conflict of interest."  The women said that Scattergood began to rely on them for making judicial decisions, such as whether or not to issue a warrant or how to rule on cases.  They claimed that when Scattergood made an error, he would yell at them for not watching him closely enough. 

The women said that they complained to City Business Administrator David Ballard, Meg Boice, an Administrative Specialist with the New Jersey Administrative Office of the Courts, Burlington County Municipal Division Manager David Young and other court officials.  They both said that Boice screamed at them in February 2012 for making complaints against Scattergood and forbade them from making any more complaints.  Boice also allegedly told the women that their complaints had angered Young as well as Presiding Municipal Court Judge Bonnie Goldman and Superior Court Assignment Judge Ronald Bookbinder.

Both women said that their normally positive evaluations turned negative after they complained against Scattergood.  They claimed that Boice "manufactured" their falsely negative reviews in retaliation against them and said that disciplinary charges were brought against them for abusing breaks and overtime pay and for causing budget errors.  Fitzpatrick said that Young, Boice, Goldman and Bookbinder were "directly involved" in the disciplinary action against her while Penny said that only Young was directly involved in disciplining her.  Both woman said that Ballard "directly participated in retaliatory action against" them.

Both women said that the stress of the retaliation caused them to take sick leave in 2013.  Both said that while on leave, they were suspended and charged with disciplinary violations.  Both women said that no hearings were ever held on on the charges against them, that their employment was terminated on October 14, 2013 and they were told that they were being "laid off."

On March 8, 2016, Scattergood was reprimanded by New Jersey Supreme Court and was "permanently barred from holding future judicial office."  The Supreme Court took its action in response to a December 14, 2015, 30-page presentment filed against Scattergood by the Advisory Committee on Judicial Conduct.  The presentment, which identified Penny as one of the two grievants who initiated the case, claimed that Scattergood engaged in conflicts of interest, had an improper judicial demeanor, violated rules regarding plea bargaining and engaged in what the presentment called "ticket fixing."

Earlier this year, the City and Scattergood formally offered the two women a total of $90,000 to resolve their complaints. The Offers of Judgment, on-line here and here, offer Penny $50,000 and Fitzpatrick $40,000--the majority coming from Scattergood.  The matters are still pending, however, as the offers have apparently not been accepted. 

The Administrative Office of the Courts, Boice and Young were named as defendants but were dismissed from both cases.  The cases continue against the City, Ballard and Scattergood.

Friday, April 28, 2017

Former Pennsauken High School principal says she will sue school district for racial discrimination.

On February 2, 2017,  a former principal of Pennsauken (Camden County) High School withdrew a racial discrimination complaint she filed in 2015 with the New Jersey Division on Civil Rights (NJDCR) because she "decided to pursue this matter in the Superior Court of New Jersey."

In her NJDCR complaint, Tameka Matthews said that she was hired in 2008 as an elementary school principal and promoted to principal of Pennsauken High in August 2013.  Effective July 1, 2015, she claimed that she was "demoted . . . to a lower paying, elementary school principal position."  She said that the demotion decision was based on her being Black and female.

The school board's June 25, 2015 minutes confirm that Matthews was transferred from Pennsauken High School to Fine and Roosevelt Elementary effective July 1, 2015.  The same minutes also show her high school principal salary as $114,027.  The September 24, 2015 minutes show her elementary principal salary as $105,474.

Matthews claimed that James Chapman, the then interim superintendent, told her that he did not have to give her a reason for the demotion.  But, Matthews' complaint alleges that Chapman explained to the teacher's union president that he was an "old, white male."  The complaint says that Chapman wanted to replace Matthews with Vice Principal Rich Bonkowski who the complaint characterizes as "a less qualified, Caucasian individual."

The Board's website, as of the date of this writing, does not list Matthews as a school principal.  It does, however, show Bonkowski as the principal of the district's intermediate school.

A check of the Superior Court docket does not show that Matthews has yet filed her lawsuit.

None of Matthews' allegations have been proven.  If she does file her lawsuit, Pennsauken school officials will have an opportunity to require her to prove her allegations to a jury.

Monday, April 24, 2017

School district settles food service manager's discrimination claim by providing neutral job reference.

I've only recently learned that complaints filed with the New Jersey Division on Civil Rights (NJDCR) are public records and I'm trying to get a sense of how this process works and what type of results it yields.  For those interested in this process, I've obtained the complaint, settlement agreement and other records from the case of Shawn Rembelinsky v. the Washington Township (Gloucester County) Public Schools and have summarized them below.

Rembelinsky filed her undated NJDCR complaint in 2015.  She alleged that she was a food service manager hired by the school district in 2011 and that she advised Business Administrator Peggy Meehan of an unspecified disability in January 2015.  Meehan reportedly responded by placing Rembelinsky on a "performance improvement plan" and Rembelinsky countered by presenting Meehan with an April 30, 2015 doctor's note seeking a disability leave from May 5, 2015 through June 5, 2015. 

Rembelinsky said that she was notified on May 4, 2015 that she was being terminated effective June 30, 2015.  She claimed that she was discriminated against because the school district "could have provided her with the reasonable accommodation of holding her position during her thirty day leave, without incurring any undue hardship on its operations." 

The matter settled in February 2016.  The school district agreed "that it will only acknowledge [Rembelinsky'] date of hire, job classification, last day of work, and salary to any prospective employer. The [school district] also agrees to release only neutral references regarding [Rembelinsky's] work history with [the school district], and no mention will be made about [Rembelinsky's] eligibility for rehire to any prospective employer."  The school district gave no other concessions, such as rehiring Rembelinsky or providing her with monetary relief.

Wednesday, April 19, 2017

Cranford lawyer accused of not returning file promptly in toxic mold case and for not cooperating with ethics authorities.

A Cranford (Union County) attorney is facing ethics charges for not properly withdrawing from representation after his client discharged him and for not cooperating with ethics authorities.  The attorney has filed an answer denying most of the charges.

In District XII Ethics Committee v. Andrew J. Calcagno, Docket No. XII-2016-0043E, Scotch Plains lawyer Thomas G. Russomano, who is prosecuting the matter, said that Calcagno had agreed to file a lawsuit against his clients' landlord due to the presence of toxic mold in their apartment.  According to the ethics complaint, the clients, after not hearing anything further from Calcagno, fired him and hired a new lawyer.  The new lawyer was reportedly not able to get Calcagno to turn over the clients' file and the clients filed an ethics grievance against Calcagno on October 28, 2014.  According to Russomano, Calcagno did not respond to letters sent on October 24, 2016 and November 14, 2016 letters that asked him to contact an ethics investigator within ten days.  Calcagno ultimately turned the file over to the new lawyer on November 22, 2016, according to the complaint.

In his answer, which is also at the link above, Calcagno denied the complaint's allegation that the clients had terminated him.  He also denied receiving the new attorney's September 10, 2016 and September 28, 2016 letters and September 12 2016 e-mail.  Calcagno admitted receiving the new attorney's October 8, 2016 e-mail but said that the e-mail "constitutes an unethical and unlawful threat and is tantamount to blackmail and/or extortion."

Calcagno also admitted to not timely responding the the ethics investigator's two letters but said that he "had extenuating circumstances, including but not limited to, [his] father suffering a stroke and [his] subsequent responsibilities as his father's sole caregiver."  Calcagno also said that he had communicated with one of his clients "on a frequent basis and repeatedly informed her that [he] would not be able to proceed with her case without documented evidence that she had been exposed to toxic mold."

The ethics charges are only allegations--nothing has been proven. Calcagno has a right to a hearing and the burden of proof is on Russomano. Since 1995, attorney disciplinary hearings have been open to the public.  Anyone who is interested in being notified in advance of any hearings on this matter may complete and send a hearing request form to the District XII Ethics Committee in care of Secretary Michael Brandman via fax to 908-272-0525.