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Fair Lawn Settles Lawsuit With Former Police Sergeant for $550K

Council approved authorization of an out-of-court settlement of the lawsuit brought against the borough by former police Sgt. Michael Messina

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.

me2 April 05, 2012 at 01:31 PM
i think i know them too. didnt they help cosgrove campaign this year and then immediately got posistions on the zoning and planning boards? since you two are on the thread can you please tell us any degrees or experience you have regarding building codes or knowledge of construction or planning? i wont be excepting "the democrats before us did it so we can to" response. just seems in fair lawn its not really about what you know but WHO you know... just take a look at the last names of our local teachers and police officers, somehow it became acceptable to pass a job on to a child relative or close friend like they were entitled to it. how about we start giving our jobs and posistions in local government to the most qualified instead of friends and family, maybe than things would run a lot smoother.
Allan E. Fineberg April 05, 2012 at 02:19 PM
"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." What an awe-inspiring example of journalistic objectivity. I'm impressed.
Brent Pohlman April 05, 2012 at 03:09 PM
Stuart, Thank you for the welcome. I think that the patch is an excellent resource for town news and a great forum for the discussion and debate of the issues must pressing to Fair Lawn. As for me2's request, my leadership form and resume were submitted to the town for review and I believe that they are still on file. Now, I would be more than happy to outline my relevant education and work experience on the Patch if you will identify yourself and indicate if you post under any other ID's on this patch. Because let’s be honest, you aren’t really concerned about my background. What you are trying to do is undermine my arguments by saying I am politically biased, because you cannot attack the merits of what I have said. Who do you think that you are to make demands of me from behind a veil? While there are some who post anonymously for personal or professional reasons there are others who do it so they can engage in baseless personal attacks or push a political agenda without having their name besmirched by such acts. That is the behavior of cowards and phonies and I have no tolerance for same. I think you will see that I will be very critical of those who spin, deceive or make baseless attacks. Fair Lawn is a great town, populated by hard working people dedicated to family and community, and this forum should serve a place for the open exchange of ideas and thoughts, that allows our citizens to better understand the issues and providing some entertainment.
me2 April 05, 2012 at 03:59 PM
I dont post under my name for the same reasons i mentioned above. the people 'in charge" show favortism towards thier friends and family. i believe it could also work the other way, if i point out problems with the way they are running things it could effect my family and i negatively. if my son applies for a part time job at the community center and is more qualified than a friend of john cosgrove, im pretty sure my son wouldnt get the job, ecspecially if he has the same last name as someone who openly questions the councils decisions. mr pohlman you are right about one thing, "fair lawn is a great town, populated by hard working people dedicated to family and community'. and i bet some of those residents are building inspectors, engineers, architects, and planners who would be great for the zoning and planning board. however i dont recall the current council advertising that they were looking for new qualified members of the planning and zoning board, and were accepting applications. all i heard was they got rid of 2 members that the dems picked and replaced them w/ 2 of thier guys. ill check borough hall to see if they still have your resume and mr sina's resume on file, ill also compare them to my friends resume who is a retired building inspector who was never aware they were looking for new member for the board.
Chris Antonelli April 05, 2012 at 05:02 PM
me2, Zoning and Planning Board appointments have set terms. If your term expires just as the majority changes, and you are not a member or affiliated of the majority, there's a good chance you will lose your seat. That's just politics. Think of it this way: Would Obama appoint a fiscally conservative person to lead his Economic Recovery Advisory Board? No. Why? Because Obama's a tax and spend Liberal Democrat and an American traitor. Obama appointed a do nothing CEO from GE that would rather do business with, and give our technology to a Communist country. See? Politics.
BellairBerdan April 05, 2012 at 05:03 PM
I'd still like to know why Republicans ( or whatever you want to call yourselves even though you always vote the same way) need to gather the names of those that question them? It's only Republicans that do that. I realize this as many other blogs right leaning, filled with right leaning people patting themselves on the back saying they're right and everyone else is stupid and evil, but why do you need a name? You'll certainly engage with anons that agree with you all the time, but when it comes to answering a question y'all get on your high horse about identity. Even presidential candidates answer anonymous questions in debates, yet on the local level you refuse. Seems Republicans care more about who you are and Democrats what you are. But of course, anyone can go into a phone book, pick any name and use it as theirs on this site. They don't certify accounts on Patch. But, in the minds of the Republicans here that would give those names respect? Then they go on to rant about others being partisan while they themselves are doing the same thing. How ironic.
Brent Pohlman April 05, 2012 at 05:06 PM
Me2 when you file your OPRA request I would encourage you to review the qualifications of all the the members of the Borough's Boards. Do you personally know any of Fair Lawn's elected officials because if so I find it hard to believe that you would think they would retaliate against you or your family. Clearly I know the mayor and deputy mayors very well and they are concerned citizens who truly care about this town and are open to constructive criticism. I also know councilman Paluso, and I would never imagine that he would ever take a retaliatory act against me because I may disagree with him on a policy matter. An imagined fear of retaliation seems like a poor excuse.
me2 April 05, 2012 at 05:09 PM
yes chris i know thats how politics work... but when i vote for someone who says "fair lawn first" i would expect them to find the best individual for that particular job- which would show they are putting fair lawn first. but when they quickly appoint thier friends it shows they arent putting fair lawn first, they are putting thier friends first.
me2 April 05, 2012 at 05:12 PM
also a bit concerned the new majority will put there county friends (and bosses) first, instead of fair lawn first
Chris Antonelli April 05, 2012 at 05:31 PM
I don't really see it that way, but ok. Better a Republican appoint a qualified Republican Than have Democrats pull out the religion card. This is despicable. http://www.northjersey.com/news/146052945_Rothman_taps_GOP_voters.html
Tommy P April 05, 2012 at 05:35 PM
I only use a portion of my name for the same reason me2 uses a completely made up user id. The truth is friends and family first, not Fair Lawn first. Truth is, when you stand up, you'd better have allies. People are benefiting from the plunder, when you challenge them, they take it personally.
Tommy P April 05, 2012 at 05:37 PM
Brent, did you file your resume with the town? Think all the members of all the boards have? Think you'll be reappointed when the Dems are back in control?
Janice April 05, 2012 at 05:45 PM
Things run so much more smoothly over in Morris County.................. http://jefferson.patch.com/articles/three-to-run-unopposed-in-gop-primary?ncid=newsltuspatc00000001
Brent Pohlman April 05, 2012 at 05:55 PM
Thomas, below is the link for the Citizen Leadership Form. Rather than draft a biography I elected to attach my resume. I cannot attest to what other people did, but as far as I am aware everyone is required to fill out this form. I would hope that after reviewing my service the council, regardless of its makeup, would consider me for reappointment. I am not blind to the politics, and if the "D's" regain control my reappointment is less likely. However, the Republican majority kept and elevated some "D's" and I would think that that if the "R's" are no longer in the majority when my term is up the "D's" serving on the council at that time would do the same. http://www.fairlawn.org/Forms/Clerk-CitizenLeadershipForm.pdf Getting back to me2's concern about the posting of consideration for Board positions. I believe that notice was given through the Borough website and the Community News.
Brent Pohlman April 05, 2012 at 08:07 PM
I would think “who someone is” and “what they are” are intrinsically tired together. Knowing who someone is, where they are coming from, and what their goals or alternatively what their agenda is important in evaluating the merit and worth of their comments. An inquiry or comment from a genuinely concerned citizen or Borough employee has more merit and value in my opinion, and is worth my time as opposed to a faux question from a political hack who is upset about losing a paid position on a tax board. Additionally, you claim that republicans call people stupid and evil, but on this site I have only seen that behavior from the people who attack the republican majority. A prime example of this is your friend Delgado. Delgado pops up and spews baseless claims of corruption against the republican majority, and then crawls away only to come back when there is an article or comment that is favorable to a republican action. Delgado contributes nothing to the dialogue and yet you direct a comment at me with an implication that I have called someone stupid or evil, when you know full well that no such comment has been made under my name.
Brent Pohlman April 05, 2012 at 08:07 PM
I would think “who someone is” and “what they are” are intrinsically tired together. Knowing who someone is, where they are coming from, and what their goals or alternatively what their agenda is important in evaluating the merit and worth of their comments. An inquiry or comment from a genuinely concerned citizen or Borough employee has more merit and value in my opinion, and is worth my time as opposed to a faux question from a political hack who is upset about losing a paid position on a tax board. Additionally, you claim that republicans call people stupid and evil, but on this site I have only seen that behavior from the people who attack the republican majority. A prime example of this is your friend Delgado. Delgado pops up and spews baseless claims of corruption against the republican majority, and then crawls away only to come back when there is an article or comment that is favorable to a republican action. Delgado contributes nothing to the dialogue and yet you direct a comment at me with an implication that I have called someone stupid or evil, when you know full well that no such comment has been made under my name.
Brent Pohlman April 05, 2012 at 08:12 PM
Thomas or Mr./Mrs. Paine, whichever it may be. From your posts you seem like an engaged, educated citizen who holds a torch to both the "R's" and "D's" feet. But I have to ask what is the plunder? and who exactly is benefiting from it?
BellairBerdan April 05, 2012 at 10:02 PM
Brent if my comment was directed solely at you I would have hot the "reply" button. That was a separate thought. This is a reply to you. Delgado does come in and is consistent. He calls them "dual government officials" or "double dippers". Which pretty much is the truth. They perform a reach around of the rules to do what they do. It was reported that when they got those jobs they can only serve out their current terms. Makes a normal person think that there is something inherently wrong with the situation but they'll find a way to allow them to get away with it for a while. Now I ask you, do you think calling them "dual govt officials" is bigger "name calling" than you calling someone who asks "please tell us any degrees or experience you have regarding building codes or knowledge of construction or planning?" a political hack, a coward and phoney? How dare they? It makes it look like your unwillingness to give an answer as an appointed official about your qualifications, you may have something to hide. Having a politically appointed position can make you nothing other than politically biased in your comments.
Brent Pohlman April 05, 2012 at 10:41 PM
Oh, BB you know I wasn’t calling me2 a political hack or any other name. I was pointing out that some people post anonymously for personal and professional reasons and others because they are political hacks, and me2 indicated that he/she did it for the former. I am sure he/she appreciate you standing up for them. And apparently you have trouble reading because I was critical of your friend Delgado for throwing around allegations of corruption without any support. I am proud of my accomplishments and my education, work experience and resume demonstrates that I am more than qualified to serve my town. But it is my personal choice to only discuss my background with those who are willing to identify themself to me. So if you would like me to tell you about myself I expect you to have the courtesy to tell me who you are.
Brent Pohlman April 05, 2012 at 10:44 PM
On a side note, I am sure everyone here appreciates the anonymous BB asking me if I have something to hide. That is classic spin.
Tommy P April 05, 2012 at 11:06 PM
By way of disclosure I am a Republican since I was 18. The generalized plunder is the bulk of the municipal budget. The concept is basically the government does things it shouldn't and tries to hand out enough benefits that every thinks they are benefiting. While at the same time masking the costs. We always hear about grants, but when you look at the numbers, its a tiny percentage. Then ask the question, where does the grant money come from? We the taxpayers. They are bribing us with our own money, after their overhead! I have used high profile examples like Fireworks, Memorial Pool, Community Center and Sr Center. These programs cost the town millions and millions of dollars and feature the typical above market rate salaries commonly found in the private sector. The private sector offers all of these services. If we simply eliminate those programs, we could reduce the burden on tax payers. On average, you could buy these service for much less then taxes you are forced to pay. However, temporary politicians are good at selling the benefit while masking the costs. People think the bus service is free, that membership dues cover the pool and etc. We are led to believe these services increase the values of our homes, when they do the exact opposite!
Tommy P April 05, 2012 at 11:07 PM
People buy houses based on budgets, based on the monthly cost to pay PITI, principle, interest, TAXES and insurance. When you increase taxes, the amount left over for principal goes DOWN! THEY ARE DESTROYING HOME VALUES! These numbers are old, http://unfairlawn.wordpress.com/, but should a "clerk" make over $145,000? Her assistant almost $90,000? A recent article highlighted how we give money to unaccountable "charities" to run our town's sports programs, yet we pay a Super of Recreation about $120,000, with an assistant who makes just under $100,000. I'd love to hear Metzler justify these...... Instead we get him to run cover for the stealth Republican tax increases. I know the clerk position is more entailed then it sounds, but $200,000+ on a Rec Super and Ass Super? Really?
BellairBerdan April 06, 2012 at 12:16 AM
Oh Brent, must I point out that your side note was the real spin? I never asked if you had anything to hide. I stated your refusal to answer makes it look like you do. All they asked was what degrees and experience you have for your appointed position. That's all. No one wants to know anything else about you. Wouldn't it have been easier just to answer?
Brent Pohlman April 06, 2012 at 12:54 AM
BB, I would never do something just because it is easier.
alex kapulsky April 07, 2012 at 03:26 PM
OK. borough (means all of us) will pay 275K. How much pay cut police chief will get?
Carol April 08, 2012 at 04:31 AM
I am not a Fair lawn resident , but this story did catch my eye. I was wondering how many deputy mayors fair lawn has . two were qouted in this article. Which one is the deputy Mayor?
Zak Koeske April 08, 2012 at 05:18 AM
@Carol There are two deputy mayors -- Ed Trawinski and John Cosgrove. Trawinski's full title is deputy mayor of community affairs.
Carol April 08, 2012 at 05:26 AM
Thank you, for clearing that up. I have seen Mr Trawinski's name in other articles regarding the county goverment. He seems to be in the paper a lot lately.
ccj April 09, 2012 at 08:47 PM
I guess the town can thank Mike Messina for adding another $300,000 or so to its deficit to pay him off. I can appreciate that we shouldn't take advantage of our employees but was he really so harmed by taking on more responsibility when the town needed him to? Did he really need to run to the state like a child? Can the town really afford an over $550,000 settlement given these economic times even with the state/ins. co. picking up a couple of hundred thousand of it. Given the absolute ridiculous nature of the civil service rules the towns need to do a much better job screening new hires to make certain they are bringing on individuals that are mature and professional.
Marty Cone April 09, 2012 at 10:03 PM
CCJ, what your post doesnt say, is that the town administrators have to do better at running the town...period. Mature and professional is what is needed. That starts with your Mayor and joke council, your part time plumber manager, (although, it trumps a washed up secretary), a high school graduate PD chief and an MTV reality show star of a captain. Now, add in a mix of favoritism and bad policy setting and you have a recipe for a failure. Thats where FL is at right now. Last time I looked, Messina's name isnt on the removal of insurance for Memorial, he didnt buy a hovel called the Naugle house, doesnt have a stake is skateboard equipment,didnt invent charging for the ambulance and is not the reason for layoffs or library closings. These are just the most recent of blunders. Blame your administrators, blame your attorney(s). You couldnt deal with what the officers and boro employees have to deal with everday. BTW, hold on to your undies, there are a few more in the hopper, this was only the second to be settled.....

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