On the advice of its legal representation, borough council voted Friday to avoid both the risk and the expense of further litigation and pay out $550,000 to a former sergeant who sued the borough and its police chief in 2008 under the state’s Conscientious Employee Protection Act, also known as the New Jersey Whistleblower Act.
“I don’t want the people to think that we’re settling because we’re caving,” Deputy Mayor Ed Trawinski said. “We’re settling because I believe in a large part there are sound economic reasons and sound legal reasons for settling.”
The borough and its municipal excess liability (MEL) insurance will share equally in the settlement payment to former Sgt. Michael Messina ($275,000 from the borough; $275,000 from the MEL), a 23-year force veteran who retired late last year. Due to the borough's current financial constraints, the MEL will pay the total cost of the settlement this year and the borough will repay the MEL over the next couple years.
“In these tough budgetary times…this is not a vote that you like to take, to spend the taxpayers money, because they didn’t get one service or anything out of this,” Deputy Mayor John Cosgrove said. “But we’re going to provide the leadership and do what’s right for the people of Fair Lawn.”
In April 2010, a seven-person jury awarded Messina $815,000 in damages, upholding the sergeant’s allegation that he had become the target of malicious retaliation by Chief Erik Rose after seeking a job reclassification with the state’s Department of Personnel in 2007.
. 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. Only the amount of damages paid out to Messina would have been at stake in a re-trial.
Rather than leave the decision of damages up to a jury for a second time, Thomas Hanrahan, the borough's attorney through the MEL, recommended council consider settling out of court.
In a closed session meeting on Feb. 21, council specified to Hanrahan 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.
On Friday, however, in a flip-flop that irked the Republican members of council, Democrats Lisa Swain and Kurt Peluso – who both previously supported the settlement -- voted to not authorize it, against the advice of both Hanrahan and borough attorney Ron Mondello.
“I’m not voting for this because I don’t feel it’s in the best interest of Fair Lawn,” said Swain, who explained she now preferred to try the case in court.
Afterward, Swain declined to answer why she believed taking the case to court was preferable.
“I just don’t want to say right now, but I think there were a number of things from the beginning that led to my decision today,” she said.
Swain’s failure to provide an explanation for her about-face prompted a visibly annoyed Mayor Jeanne Baratta to comment, “She’ll get back to you when she’s done speaking with her handlers.”
Swain had previously asked for the settlement agreement to be tabled at the past two council meetings due to complaints with the resolution's wording and a rethinking of legal strategy.
Had Swain and Peluso’s opposition to the resolution carried, the borough would have reneged on its earlier settlement agreement and thus been exposed to possible sanctions from the judge and forced into a less desirable payment agreement with its liability insurance provider.
Fair Lawn Republican Club president Daniel Dunay praised council's decision to honor its previous agreement and settle the lawsuit.
"I personally believe that the negative morale in our police department is a threat to our public safety," he wrote in an email to Patch. "I am encouraged that the council is taking proactive steps to put these issues behind us."
The entire council found consensus in its desire to reconsider bringing a malpractice claim against Christopher Botta, the borough’s original attorney in the Messina case.
Council previously explored a case for malpractice against Botta, who had stipulated in court that Messina was a whistleblower without advising council that he had done so, but did not pursue it on the advice of former borough attorney Bruce Rosenberg.
“I’m going to put back on a session that we reconsider spending those dollars to have another attorney explore whether or not we have a viable claim against Mr. Botta for stipulating to something that, certainly we as a council, were never advised about,” Trawinski said.
Borough attorney Mondello said he had found a legal malpractice expert who would be willing to freely provide general advice to the council on the matter.
The $550,000 settlement paid to Messina does not include 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.
In Sept. 2010, Messina was struck by a car coming out of the on River Road while attempting to prevent two women suspected of drug prescription fraud from fleeing the scene.