Dems Explain 'No' Vote on Messina Settlement
Democratic council members Lisa Swain and Kurt Peluso preferred taking the case back to court and arguing that former police Sgt. Michael Messina was not a whistleblower
Council Democrats Lisa Swain and Kurt Peluso opposed settling a lawsuit with former Fair Lawn police Sgt. Michael Messina in March because they did not agree with an earlier court decision that had classified his behavior as whistleblowing.
During a closed session meeting on Tuesday, March 27, councilwoman Lisa Swain brought to council’s attention a recent New Jersey Law Journal article titled, “CEPA: When Whistleblowing Is Just Part Of Your Duties,” that she felt bolstered the borough’s defense against Messina and asked council to delay voting on the settlement for a few days until borough attorney Ron Mondello could review the article. Council agreed unanimously to delay the vote.
The article, discovered by Swain’s husband, addresses the question of whether an employee can reasonably be considered a whistleblower if he speaks out about something that is within his job responsibilities to report. It goes on to cite three appellate decisions that suggest the answer is “no,” an employee cannot be a whistleblower if his job description requires him to report activities he considers to be illegal or against public policy.
“Once I saw that whistleblower case, it persuaded me to vote the other way,” said councilman Kurt Peluso, who along with Swain had previously supported settling with Messina.
On March 30, Mondello returned to council having reviewed the article provided by Swain and the three legal cases cited in the article, and provided council with a written recommendation stating that those cases were not relevant to the Messina litigation.
“I felt the cases in that article were very, very different from the Messina case,” Mondello said. “It wasn’t [Messina’s] job to walk around the municipal building and see if employees were violating a law, rule or regulation.”
Mondello also supplied council with the written opinion of the borough’s municipal excess liability (MEL) attorney, Thomas Hanrahan, who sided with Mondello’s assessment of the cases.
Neither Swain nor Peluso decided to heed the advice of the attorneys.
Swain said she had read both opinions, but was not comfortable voting for the settlement. According to the March 30 closed session minutes, Swain said that while she had originally agreed to the settlement with some reluctance, she had had second thoughts and since decided she was uncomfortable supporting the settlement.
Peluso said he opposed the settlement and sided with Swain’s husband, an entertainment lawyer, who believed the Messina case went hand in hand with those mentioned in the law article.
“You have 10 attorneys in a room, you’re going to get 10 different opinions,” Peluso said.
He acknowledged it was a tough decision, but said he would have preferred to wait and take the case back to court, buying time until similar cases that are ongoing have been decided.
“There are a couple pending litigations regarding similar situations, so I’m interested in seeing the outcome of those,” he said. “It would give us more cases to look at.”
Waiting it out now, however, was not an option that the Republican members of council or the borough attorney felt was advisable because the council had already agreed privately to settle with Messina.
In a closed session meeting on Feb. 21, council specified to Hanrahan, the MEL attorney, what it considered to be a fair range for settlement with Messina and unanimously authorized Hanrahan to negotiate a settlement within that range. With council’s consent, Hanrahan negotiated a settlement with Messina’s lawyer for $550,000.
If the borough had reneged on its earlier settlement agreement, Mondello feared the borough would be exposed to sanctions from the judge and forced into a less desirable payment agreement with its liability insurance provider.
He also said that it might not have been possible to re-try the case using the argument that Messina was not a whistleblower, since the appellate court had already determined that he had performed a "whistleblowing" activity.
Only the amount of Messina's damages, not whether or not he was a whistleblower, would have been at stake in a re-trial.
“If the Borough chose to re-litigate the matter, Plaintiff Messina would only have to prove a causal connection exists between the whistleblowing activity and the adverse employment action,” Mondello wrote in his opinion to council. “The remaining three elements [necessary to make a CEPA claim] have already been proven by the plaintiff. This is a serious handicap.”
Messina sued the borough and its police chief in 2008, under the state’s Conscientious Employee Protection Act (CEPA), also known as the New Jersey Whistleblower Act, alleging that he had been the target of malicious retaliation by Chief Erik Rose after he sought a job reclassification with the state’s Department of Personnel in 2007.
In April 2010, a seven-person jury awarded Messina $815,000 in damages, upholding Messina’s claims.
Last July, an appeals court partially reversed the decision. It upheld the borough’s liability, but ordered that a new trial be held in which the jury must more clearly specify the retaliatory actions taken against Messina and what damages those actions caused.
Rather than leave the decision of damages up to a jury for a second time, council settled the case out of court on March 30.
The $550,000 settlement agreed to by council does not include a second lawsuit Messina filed last year against the borough, Rose, Capt. Joseph Cook and the borough’s self-insured worker’s compensation administrator alleging retaliatory actions taken against him for making a worker’s compensation claim following an injury in the line of duty and failure to accommodate his disability.