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Tensions Flare at Council Work Session

Tempers flare over Grant's lawsuit; questions on who should and should not be present during closed discussion on indemnification.

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.

 

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TommyIce February 13, 2013 at 02:43 PM
Well Jim if Ms. Grant would drop her suit, Mr. Leibman resign, the M&C put the position out to bid, and ALL of them be HONEST about connections to the bidders and then review and hire based on MERIT, I think all parties (including the taxpayers) would win. Well maybe not Mr. Leibman because he'll be losing a delicious piece of pie. And BTW, if you can be active in the Dem machine and remain "independent," I'm sure some who starts out not affiliated with anyone other than the taxpayers can stay that way.
Darlene February 13, 2013 at 03:55 PM
I totally disagree with you Jimmy that Councilman Ashley "will never be elected again anywhere". From what I can see, I believe Councilman Ashley made in error in judgement in not recusing himself from the vote on Leibman -- not good, but that's no Watergate. On the other hand, now that the hand has been dealt, how the "players" play it out could well have an impact on their political futures. Still not clear on why the Mayor was named in the suit. Also curious as to what the nature of the suit was against Councilman Putrino, referred to in the article above. He clearly overcame whatever the issue was and re-gained his seat. Inquiring minds want to know....
Ulises February 14, 2013 at 01:32 AM
Ms. Casey, I agree with you we're in a sad state of affairs and we need a leader to emerge to put an end to this. I wish Mayor Subrizi would be that leader. All she needs to do is request another vote on Liebman's appointment and cast the deciding tie breaking vote against this appointment (Mr. Liebman is not worth fighting for, he's even instructed all M&C members to not speak about the UW property, eventhough they've written their opinions all over). If the Mayor did this, she'd be admired as the adult in this ordeal and get credit for putting the people's business first over all this political postering that's going on. But, that is unlikely to happen and we're stuck with the bill over 'quid pro quo' between Ashley and Liebman.
Michelle February 14, 2013 at 01:33 AM
Thank you TommyIce, but bare with me please. I’m still not following. Understand that I understand the dynamic, that’s not where I’m lost here. I can’t see how Ashley’s appointing Liebman is different than any other appointment. Are you saying that the fact that Ashley participated in the vote for Liebman is the problem here? Does that mean that there is a clear and written rule that anyone who appoints someone cannot then participate in the vote, yet Ashley decided to ignore that rule and voted anyway? In practice, in the past, did people refrain from participating in the vote when they made appointments? In the case of the wife of the River Edge mayor appointment, did the person who appointed her refrain from the vote, or did that appointment not come to a vote? Thank you!
newmilford1967 February 14, 2013 at 02:20 AM
Thankyou Michelle you are 100% correct,But her appointment could be a pay to play lets find out ask the other 3.
John DeSantis February 14, 2013 at 03:05 AM
New Milford Dad of Three, You brought up the issue of friendship and where a person’s loyalties should lay. Others here have talked of political cronyism. These two issues are tied closely together. When we are talking about public officials or employees and their conduct while they are conducting their official duties, friendship has to take a back seat to integrity. Tuesday night I was asked by a respected individual in our community (I am paraphrasing) if I was aware of the political cronyism that exists within the Democratic Party. My answer is yes, I am aware of that. Cronyism is an epidemic in both political parties at every level of government. When a public official is in a position to nominate, appoint, or vote for a person to a job or award contracts, there is no doubt that friendship plays a role in that process. That in itself is perfectly OK. It stands to reason that the public official would select someone that he/she would respect, have confidence in, and like, much like a President selecting his cabinet. The question of impropriety comes in if there is a reason to believe that there was payment or some other form of favor given to the public official in return for the nomination, appointment, or vote. It is the responsibility of the public official to not engage in this type of activity, it also his responsibility to avoid doing anything that could create the perception of this type of activity. continued...
John DeSantis February 14, 2013 at 03:08 AM
The question of impropriety comes in if there is a reason to believe that there was payment or some other form of favor given to the public official in return for the nomination, appointment, or vote. It is the responsibility of the public official to not engage in this type of activity, it also his responsibility to avoid doing anything that could create the perception of this type of activity. Earlier I mentioned how it is important to shift the priorities of the Democratic Party from just winning to producing the better solutions to the problems that face this community. The first step in accomplishing that is gaining the trust and respect of the people in town. There are those in the Democratic Club who understand that, Austin was one of those people. To ignore what could have been perceived as an unethical act and just let slide, in the name of friendship, is to plant the seeds of the next generation of cronyism. Having said that, Austin is my friend, I can’t tell you how much I hope that he is vindicated. Nothing would make me happier than to be wrong about what I think occurred. There are people who have over the last few years who have left the Democratic Party or feel they were driven out because they have had differences of opinion with some of the more powerful personalities of the party. Whenever I see these friends I urge them to come back. No one person owns the Democratic Party; no one has the right to drive anyone out. continued...
John DeSantis February 14, 2013 at 03:09 AM
More than one individual who posts here seem to believe a political boss controls every Democrat in town as though they were puppets. If you believe that to be true, I have a suggestion for you. Join the Democratic Club and change it, get enough people together and create a new majority within the party. It is very easy to post opinions on the patch. Criticizing from anonymity accomplishes almost nothing except to vent your frustrations. If you really want your ideas and opinions to make a difference participate in the political process, join one of the political clubs, or as Ulises has suggested help start an Independent movement, help select the candidates that will run in the primaries and elections, If you think you can stomach it run for office or as Mr. Drake has suggested run for county committee. If there are such things in town as political bosses, they only exist because the people have allowed it by their lack of involvement.
Michelle February 14, 2013 at 05:51 AM
Hi John, you are a valued mentor to me, and I trust your perceptions and insights. The problem I am having with this is, I’m not sure where the integrity has been compromised in this situation. On one side, I understand the dynamic. On the other something doesn’t seem right, and I think it’s because the rule of impropriety is not being applied fairly across the Board, which puts the integrity of the system in question. If Liebman was a dunce, and Ashley voted him in because he was his friend, the ethical issue would be well-defined for me (cronyism). (The fact that Liebman is sharp and well-qualified negates the cronyism charge.) If there was a rule clearly stating that no one was allowed to appoint friends, or cast a vote for their appointees, and Ashley disregarded these rules, the ethical issue would be well-defined for me (as long as this rule applied to everyone). If Ashley promised the job to Liebman and somehow paid off or coerced the other Council members to vote for him in order to guarantee that Liebman would get the job, the issue would be well-defined for me. continued...
Michelle February 14, 2013 at 05:52 AM
I can’t seem to separate out what the difference is between any other council person nominating a friend, and Ashley offering Liebman a nomination in return for him helping him with the Hekemian case (not saying he did this, just speaking again to the accusation being lodged against him). If Ashley did do this, then it just seems more direct and honest to me. Because there is always some favor or gratitude or benefit or mutual hand-washing occurring between “friends,” whether it be before or after favors, even if it’s not always obviously apparent. There’s a saying: There’s people who sh_t in the well, and then there’s people who sh_t beside the well and slowly kick it in. I’m using this saying to illustrate that there is no difference to me between someone who nominates a friend, and someone who nominates a friend in exchange for help with another endeavor, except that the latter is more honest and direct. The saying doesn’t work completely for what I want to express though, because I don’t feel anyone has sh_t in the well here.
Michelle February 14, 2013 at 05:53 AM
continued... I’m just wondering if Ashley is being held to a higher standard than everyone else. And I question whether the standard is a practical one, or an ideal that no one in truth ever adheres to since it goes against human nature. I also can’t help but wonder if this whole thing is fueled by anger because the other person who was lined up for this position got knocked out of the position by Liebman’s nomination. Because I’m not seeing where the punishment is fitting the crime here. There are so many ways this can easily be rectified without it becoming the drama it has become.
Lori Barton February 14, 2013 at 12:08 PM
Hi Michelle!!! The way I understand it, the issue is whether Austin actually paid Liebman. If he did, and there is a paper trail to prove it, then perhaps it isn't AS bad. If there was no pay, then why would Liebman do it except perhaps with the promise of being nominated to this position? That's a definite pay to play. Even if Liebman was paid, it still has the "look" of being improper, which John alluded to in the statutes that he cited. This isn't just a case of being friends with some one and respecting them: Liebman was representing Austin in a major case here in New Milford. I still can't understand how Robalino, Collucci and Subrizi were OK with him from the very beginning. His potential for a conflict of interest was questioned that night. Liebman's assurances alone that it was not should not have been enough. Truly, it should have been tabled until further investigation could have been completed
miriam pickett February 14, 2013 at 02:22 PM
I think Hedy did exactly the right thing. As an attorney, she has sworn to uphold the law and what she saw was the law being swept aside for mysterious reasons. Austin Ashley is a good man. However, that doesn't excuse his breaking the rules.
John DeSantis February 14, 2013 at 03:37 PM
Nominating a friend in its self is not unethical as long as the friend is qualified. Mark Leibman’s qualifications are clearly not in question. If a lawyer or his firm paid a councilman in one way or another, be it actual money or services for free to nominate and vote for the lawyer resulting in his appointment or if there was some other kind of trade made for the appointment is where the problem arises. Keep in mind all that I described is perfectly legal in private business dealings but not in public or government forums. The reason for the difference is that in private dealings it is private money that is involved and public appointments it is the people’s money. continued...
John DeSantis February 14, 2013 at 03:38 PM
....Example #1: A man owns a business and needs to hire a lawyer, and a friend says “hire my son”. The man replies “I don’t know I was thinking of hiring someone else or simply not filling the position.” His friend responds “come on give the kid a break. You know he’s qualified. If you give him the job, I’ll give you that old Chevy truck of mine. I know you like it.” The man thinks about it a minute, he’s had his eye on that truck for some time and he knows the kid is more than capable to perform the job. The kid graduated from Harvard at the top of his class. The man smiles a little. “Sure, the kid’s got the job.” They shake hands, they are both happy and the transaction is complete. This type of transaction, if conducted, between private individuals it is harmless and perfectly acceptable behavior.
John DeSantis February 14, 2013 at 03:42 PM
Example #2: A man is a member of the town council. The town needs to hire a lawyer, a friend of the councilman says” “nominate my son”. The councilman replies “I don’t know I was thinking of nominating someone else or not making a nomination at all.” His friend responds “come on give the kid a break. You know he’s qualified.” (Up to this point in this scenario everything that has occurred is perfectly legal. If the conversation ended here and councilman decides to nominate his friends son, I don’t believe any wrong doing has occurred.) The friend continues, “If you nominate him for the job, I’ll give you that old Chevy truck of mine. I know you like it.” (At this point of the conversation, in my opinion, the friend has broken the law or at least engaged in unethical behavior by offering a bribe. The councilman has not yet done anything wrong.) The councilman thinks about it a minute, he has had his eye on that truck for some time and he knows the kid is more than capable to perform the job. The kid graduated from Harvard at the top of his class. The councilman smiles a little. “Sure, I’ll nominate the kid.” (At this point of the conversation the councilman has accepted the bribe and now, he too has broken the law or at the very least has engaged in an unethical manner.) They shake hands, they both are happy and the pay for play transaction is complete. continued...
John DeSantis February 14, 2013 at 03:43 PM
The two examples are almost identical. The first one is perfectly acceptable and these types of transactions take place all the time. The second example is at the very least unethical and possibly a crime and unfortunately, these types of transactions also take place all the time. The fact that the Kid is a capable lawyer has nothing to do with the issue as to whether anything inappropriate had occurred. The other issue is as Lori has said. Leibman was involved as Austin’s attorney in a huge litigation occurring in town. The potential for the perception of a conflict of interest is clearly there. You asked If Austin is being held to a higher standard than everyone else. The answer is yes, all of our elected officials are held to a higher standard than the general public. They have been given the peoples trust. They hold office to conduct the public’s business, not to create opportunities, profits, or favors for themselves. Even if they are skilled and very proficient at their duties as public officials, it is not OK to excuse unethical or illegal behavior. continued....
John DeSantis February 14, 2013 at 03:44 PM
If you were asking is Austin being held to a higher standard than the other council members, the answer is no, or at least he shouldn’t be. There was another candidate being considered for the position. There is absolutely no doubt that this individual is a friend to many of the council members, especially the Democrats. Both of the candidates that were being considered for the position are capable attorneys. The difference is that there is no evidence that any type of payment was promised to the councilmember who nominated the other individual. If there was that is equally wrong. Nominating or voting for a friend is not the unethical act. Offering and accepting payment or services for that nomination or vote is.
John DeSantis February 14, 2013 at 03:45 PM
You asked if the code of ethics or laws that create these standards are practical. The answer is yes. We need more laws to keep money out of politics. We cannot have our elected officials for sale. That is an issue that touches politics across the board. That is what the debates over campaign finance reform are all about. Our Democracy is being threatened by special interests groups, lobbyists and corporations and the monies they use to influence our politics and elections. You asked if the punishment fit the crime. I don’t think anyone wants punishment to be administered. I think folks just want to correct what could be perceived as an impropriety, and move on. You asked was this being fueled by anger? The answer is yes. People were angry at the very beginning of the mess and the anger is growing amongst people on all sides of this issue. If just for a moment folks could set their anger aside, I to believe a simple solution is possible.
newmilford1967 February 14, 2013 at 06:06 PM
Joe I think you hit the nail on the head.Check out there choice was it promise for someone helping the mayor of RiverEdge to get his wife in.Ask them at next meeting and stop wasting tax payers funds.John De santis stop with your statues and laws you quote like your writing a novel.The truth will come in court with egg in all demacraps party face.Austin is an honest trust worthy man.Pay to play no way all you negitve people should start apologizing now.
Alexandra February 14, 2013 at 06:54 PM
Good Afternoon Everyone - Anyone tired of this yet? I know I am. TIred of "arm-chair" attorneys, negative banter for and against our Councilpersons. Silence is golden. Lets see what happens in Hackensack...
John DeSantis February 14, 2013 at 07:01 PM
If we stop with our statutes and laws what are we left with, anarchy? It cannot be left up to each individual in our society to decide which laws apply or when.
Michelle February 14, 2013 at 07:02 PM
Hi Lori! and John! Thank you … I guess in this scenario, if it were to be the case, given the givens, though I see the problem I don’t see what the big deal is. Pay-to-play became an issue politically because large donations lead to political favors in the form of the skewing of policies, the granting of contracts, unqualified people gaining positions, etc. The potential harm in these scenarios is obvious. Could someone define for me what the actual harm is in what Ashley has been accused of doing if it were to be the case, other than the fact that the M&C voted for his nomination, and the other person who was set for that position did not gain the vote. Also what law was broken if Ashley were to have done this? Because I think the problem I am having is how can a law allow you to nominate a "friend" when the fairest thing is to have it be open to the public at large, and nominating "friends" should actually be disallowed if we're going to apply the ethical standard purely. Extending that, if nominating a "friend" is allowed, then I feel that is what Ashley may have done, and it should be allowed for him to. Because no matter what anyone says, there are benefits to being "friends," and if a rule is to apply to one, it should apply to the other.
James Joyce February 14, 2013 at 09:31 PM
The council didnt have to vote for either person that was nominated. They could have tabled the appointment, brought the old lawyer back for a while and asked for more names at the next meeting. That's what the mayor should have done when their was a tye vote. That would have shown leaadership.
miriam pickett February 14, 2013 at 09:53 PM
Michelle, I think it's all in appearances. Austin should have recused himself from voting since Liebman represented him in a high profile case. By not recusing himself and nominating him...blah, blah, blah. It's all been said here before. I don't want to repeat what everyone has said. He can easily defuse the situation by proving that he did pay Liebman to represent him at the hearings. Remember, the Borough Attorney doesn't do his work for free and Mr. Liebman is being very well paid in his new position. There should be absolutely no questions regarding his and Austin's integrity.
miriam pickett February 14, 2013 at 09:53 PM
Alexandra, I think you're right. I am done here.
Michelle February 15, 2013 at 05:42 AM
Hi Miriam! thank you. I understand the appearance of impropriety -- that if Liebman wasn’t paid, then his services were a favor. It just seems that it’s a relative thing for me. If impartiality is the goal to stave off corruption, then it should be applied across the board, not just to Austin. The fact that they were nominating a friend (the mayor’s wife from RE), shouldn’t be allowed either, because how is a friend truly qualified to qualify a friend for such a position other than the fact that they are friends. Because isn’t the end goal, and the whole reason for the protections, to get the most qualified person in there -- one who would serve the interests of NM rather than those of the friend who nominated him (or her)? Since the act of nominating a friend in and of itself is a “favor,” there is no way to tell whether these type of nominations would be based on merit, as would be more the case if no friends were involved. The fact that Liebman helped with the Hekemian hearings at least establishes his merit.
Michelle February 15, 2013 at 05:42 AM
continued... For me, too many things are absent to truly make it a pay-to-play in perspective relative to everyone else’s choices and the rules that govern them. Have all of the other friends who have ever been nominated, never done their friends favors? Seems a behavior inherent in the relationship, and if the process is truly to be preserved, then the whole “friend” thing needs to be removed. If Liebman and Austin weren’t friends, the gesture would be more suspect, however I would still put the integrity of the system into check rather than those who take advantage of it.
Michelle February 15, 2013 at 01:41 PM
To kill the point, there's no telling how far into it Austin got the idea to nominate Liebman. He very well could have said, wow, Marc is doing a stellar job, I think I'll nominate him. There is not enough information to come to a conclusion.
Love My Cigar and Coffee February 19, 2013 at 04:25 PM
Amen!!

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