Politics & Government

Judge Dismisses Lawsuit against Township, Mayor

The judge cited the plaintiff's lack of evidence as the primary reason for her decision.

ELIZABETH — A Union County Judge has dismissed a lawsuit filed by the Scotch Plains Democratic chair alleging that the mayor and council held “secret” discussions during this past budget season and that the mayor went beyond her allowed duties.

Judge Karen Cassidy ruled this morning that plaintiff Richard Samuel had little substantial evidence on which to base his claims and that the township did not violate any state statutes, thus warranting the dismissal of all of his allegations.

Samuel originally filed a 10-page complaint in state superior court on July 6 that accused the township of illegally discussing the budget and new sewer utility in closed sessions in violation of the Open Public Meetings Act. He also called for the mayor to be disqualified for going beyond her allowed duties and influencing the township managers at the time.

Find out what's happening in Scotch Plains-Fanwoodwith free, real-time updates from Patch.

In court today, Samuel argued that the mayor and council made decisions behind closed doors and then presented them to the public without deliberating openly or providing an explanation of how they reached the decisions.

“They decided to set up the sewer utility, and they said ‘we’ve decided that already.’ Why did they decide it? They said, ‘oh, that’s confidential,’” Samuel told the judge. “There must have been deliberations. The council made a decision on something that wasn’t an exception to the Open Public Meetings Act."

Find out what's happening in Scotch Plains-Fanwoodwith free, real-time updates from Patch.

Cassidy responded by saying that the township isn't required by law to hold public deliberations, and that the fact that they held several public meetings after the introduction of the budget and sewer utility was sufficient to cure any wrongdoing  if it had occurred.

She stated further that it seemed rather difficult to have every mention of the budget between the mayor or council made in an open, public setting.

“You cite deliberation being different from action, but it basically comes to the conclusion that you can’t have deliberation cited all the time,” Cassidy told Samuel. “I don’t know how much deliberation you’re looking for. I don’t know where the line gets drawn.”

Township Attorney Brian Levine acknowledged that in the past, previous town manager Tom Atkins held multiple regular hearings earlier in the season to explain his recommended budget to the public. But, Levine argued that the township was unable to do so this year due to the abrupt resignation of town-manager Michael Capabianco and the fact that they had to hand over budget preparations to consultant Gregory Fehrenbach.

“You could argue that we could’ve had more hearings, but the circumstances made it impossible to have these meetings,” Levine said. “As soon as we had the budget, we had the meetings." 

“If the council had just sat down and had secret meetings, and then voted without any discussion of what the ordinance was, of what the utility was, then that would be improper,” Levine stated further. “That’s a far cry from having seven public meetings.”

In reference to Samuel’s claim that the mayor forced Capabianco out of office and later influenced the township’s temporary town managers, Robert LaCosta and Madeline Rutkowski, Levine argued that Samuel has no real proof to back his claims.

“The problem I have with giving Mr. Samuel more time is that he does not have a scintilla of evidence that Malool influenced him,” Levine said. “To use this statute as a sword over her head, with no factual basis, is improper.”

Samuel told the judge that Capabianco told him that he felt forced out of his position, but that Capabianco didn’t want to provide an affidavit backing those claims.

Cassidy cited the fact that Capabianco doesn’t want to provide documentation as the reason that portion of Samuel’s lawsuit should be dismissed.

“In this case, Mr. Capabianco has indicated that he doesn’t wish to comply and supply an affidavit. I think that’s a distinguishing factor,” Cassidy said. “The fact that Mr. Samuel wishes to receive additional time for a deposition isn’t warranted because the person targeted doesn’t wish to provide documents. His belief that something went on behind the scenes is not enough.”

Cassidy went on to ask Samuel why he thought he could base his lawsuit on Capabianco’s supposed claims, if he wasn’t the one who had been wrong.

“How can you pursue that if you’re not the aggrieved?” she asked.

“This is my government being run,” Samuel said in response. “It’s the people who have the right to say how their government is operated, and it’s their right to complain if it’s not being operated properly.”

Samuel stated that he’s been unsuccessful in collecting affidavits that back his claims because the parties involved are uncomfortable giving statements and also because Levine has prevented him from getting affidavits from certain township employees.

He has up to 45 days to appeal the court’s decision.

 


Get more local news delivered straight to your inbox. Sign up for free Patch newsletters and alerts.

We’ve removed the ability to reply as we work to make improvements. Learn more here