The room heated up at Monday's Mayor and Council work session regarding who should and should not be present during the closed session discussion regarding Councilwoman Hedy Grant's lawsuit against Councilman Austin Ashley.
Grant has filed a lawsuit against Ashley, Mayor Ann Subrizi and the Borough of New Milford petitioning the court to invalidate the appointment of Borough Attorney, Marc Leibman of the law firm Kaufman, Semeraro, Bern, Deutsch & Leibman.
The complaint, filed in Superior Court in Hackensack, submits that as Leibman's client in the matter before the New Milford Zoning Board regarding the potential development of the United Water property by the S. Hekemian Group, Ashley was "disqualified by self-interest" from voting for the appointment of Leibman as Borough Attorney. Grant seeks a judicial determination that Ashley had a "disqualifying conflict of interest" by nominating and voting on the appointment of Leibman.
Grant believes Leibman's appointment to be nothing more than 'pay to play' whereby Ashley's nomination and vote for Leibman as Borough Attorney represents payment for Leibman's legal services provided to Ashley.
At issue during Monday's work session was the discussion of indemnification for Ashley and Subrizi.
Councilwoman Randi Duffie argued that it would be improper for Borough Attorney Marc Leibman to be present during the closed session discussion of the matter.
"The circumstances under which you are employed by the borough is the heart of this lawsuit," Duffie argued.
Subrizi said that the only reason the matter is being discussed in closed is to secure the indemnification process for herself and Ashley in this matter.
"We will not be discussing the merits of the case," Subrizi said. "What we will be discussing is how we will manage the legal representation."
Duffie agreed that Grant should not be a part of the discussion and insisted that Leibman should not be the attorney of record giving advice on a suit that rests upon a question of ethics regarding his appointment.
"I think it would be improper for you (Leibman) to be in closed session discussing anything (regarding this matter)," Duffie said.
"I disagree," Leibman countered, as he pressed the council to vote on the motion to discuss the matter of indemnification for Ashley and Subrizi in closed session.
"We need to understand how we're going to move forward (in this lawsuit)," Subrizi added.
Duffie contended that the discussion regarding the lawsuit and indemnification should be among the council members not named in the suit, and that Mr. Leibman "would certainly not be included in that discussion."
Subrizi insisted that Leibman be in the room since he is the attorney of record.
Arguing her point, Duffie said, "This is to maintain a high level of ethics."
Ashley asked Duffie if her intention is to hold the council hostage, stating that they need to get on with borough business.
Grant responded by saying that one way to end the lawsuit would be if Leibman stepped down as borough attorney. "He will be breaking every rule (if he stays for the discussion)," Grant maintained.
Leibman challenged, "Or you could drop your lawsuit."
Councilman Michael Putrino interjected that when he was sued during his previous term of office, he removed himself from any discussion of the lawsuit on the advice of counsel.
"I think it's in the borough's best interest if these parties are not present (during the discussion of the lawsuit)," Putrino said, referring to Ashley, Subrizi, Grant and Leibman.
With the motion to go into closed to discuss indemnification on the table, Ashley, Robalino and Colucci voted 'yes' while Duffie, Putrino and Grant voted 'no.' Subrizi cast the tie-breaking vote with a 'yes.'
Regarding going into closed with Leibman present as the attorney of record, Grant said, "You're violating every ethical principal."
In petitioning the court, Grant is also asking for a temporary restraining order and preliminary injunction pending a full hearing of the matter. The court has issued a date of Feb. 22 for a hearing on that motion.