A ‘wall of secrecy’ that attorneys for the township of Montclair tried to erect in the Montclair CFO whistleblower case came tumbling down Tuesday.
In response to Judge Stephen Petrillo’s decision on the record on June 2, denying Montclair’s motion to seal and cross-motion to seal, Riker Danzig filed unredacted documents Tuesday morning, making public much of what attorney Derrick Freijomil of Riker Danzig had argued to seal, in an argument Petrillo had described as Kafkaesque.
Here is everything that was previously redacted that Montclair wanted CFO Padmaja Rao to be “walled off” from: (1) the New Jersey State Health Benefits Program and the implementation thereof; (2) the investigation and any report by and the retention and payment of O’Toole Scrivo; (3) the Fire Department investigation, including but not limited to the reports of the Affirmative Action Officer related thereto; (4) the Township Council’s Finance Subcommittee; (5) any and all investigations or 4 allegations of alleged workplace harassment, including but not limited to claims or statements given by anyone (e.g., Lee, Trembulak, and York) and any reports or analyses thereon (e.g., by the Township’s Affirmative Action Officer and/or Legal Department and/or by any outside retained counsel, such as the Lindabury firm); and (6) the Township’s consideration of its liability insurer (which is funding the defense of this action).
Petrillo ordered that Rao should only be prohibited from access to any communications or information regarding her claims and the litigations in which some claims have been asserted against the defendants.
Petrillo stated that those limitations would also apply to anything having to do with the litigation involving former Montclair deputy clerk Juliet Lee currently pending before Judge Tarantino and the subject of a consolidation motion.
The Burr Certification
Notable in the 160-page document filed Tuesday is the certification of acting town attorney Paul Burr. Submitted in support of Montclair’s motion for an order of protection, restraint, and other relief, Burr’s sworn certification, containing claims of Rao obstructing government affairs or disclosing confidential information, is rebutted by Rao in her own certification, filed unredacted on June 9.
Burr’s certification states:
On January 12, 2023, Plaintiff [Rao], unprompted, began making recommendations to the Law Department concerning which Township employees should be involved in selecting the Township’s Labor Counsel—obviously a matter directly related to Plaintiff’s own allegations. See Ex. 1 which is a true and accurate copy of an email I was copied on sent by Plaintiff (submitted under seal and redacted).
Rao’s certification states:
Mr. Burr continues his pattern of incomplete half-truths in paragraph 10 of his certification. There he states that in an email on January 12, 2023, “unprompted, [I] began making recommendations to the Law Department concerning which Township employees should be involved in selecting the Township’s Labor Counsel”. Mr Burr omits that my email was in response to a meeting arranged at the request of the Law Department for evaluation of submissions received in the department for law firms seeking to become labor/employment counsel, conflict/special litigation counsel and vacant abandoned property counsel, as reflected in an email from his department dated January 11, 2023.
Later on January 11, 2023, during a non-related meeting I attended with the Acting Township Manager, the Human Resources Director, Mr. Burr and Assistant Township Attorney Gina DeVito, the matter of labor counsel was discussed and the Acting Town Manager asked the meeting participants to provide their opinions on who should participate in the evaluation process. In that very meeting, Mr. Burr told those present that he did not get involved in labor matters since he started as the Interim Township Attorney except to process their invoices as presented to him by Township Manager Timothy Stafford before he was placed on administrative leave.
My email referenced by Mr. Burr was a follow-up to that meeting on January 11, 2023. Mr. Burr raised no issue with my input on this process at the meeting on January 11, 2023 or upon receiving my email on January 12, 2023. The first objection I received from Mr. Burr on this matter was his misstatements in his certification.
Burr, in his certification, also claims Rao retaliated against Riker Danzig for its defense of the Township in this matter:
For example, in or around early January 2023, Plaintiff informed the Township Attorney that she would not be issuing a Certificate of Funds, as is required pursuant to State regulation, for two contracts under consideration by the Governing Body. The contracts at issue related to the retention of Riker Danzig and another law firm as special outside counsel for the Township. Instead of complying with her obligations, Plaintiff required that evaluations into the qualifications of Riker Danzig and the other firm be conducted prior to the issuance of a Certificate of Funds; this was in spite of the fact that Riker Danzig was already serving as Litigation Counsel to the Township, including in this action.
Rao, in her certification, states:
The problem with the Riker Danzig contract approval arose because Mr. Burr had not completed the required evaluation prior to preparing the resolution and submitting a request for Certification of Funds. Had Mr. Burr followed the requisite administrative procedures, I would have no reason to flag the problem with the Riker Danzig approval package. Mr. Burr and Riker Danzig are subject to the same administrative and budgetary controls as every other Montclair department head and vendor. My actions are not singling them out for special treatment — positive or negative.
The unredacted filings also show payments to Riker Danzig, including an estimate of $7000 for October 2022 for the Rao litigation, the same month Rao filed her whistleblower suit.
Rao, in her certification, describes how Burr was copied on a request, made by Councilor Peter Yacobellis, for information on Riker Danzig’s invoices:
Mr. Burr sets forth statements in his certification that are patently misleading and undermined by the very documents he submits in support of the statement—but in unnecessarily redacted form.
He subsequently states my email included Riker’s Danzig’s “estimated fees to be incurred by the Township in defense of this very action.” Mr. Burr’s faux outrage attempts to obscure he was informed of the councilor’s request for information concerning Riker Danzig’s invoices, he was copied on the original request from the councilor on October 28, 2022, as was Assistant Township Attorney DeVito and two other councilors. Burr nor DeVito responded to that request for information, did not state it should not be directed to me or that I should not respond to the councilor. Indeed, the information was within the Law Department purview had Burr believed it was necessary, he could have taken responsibility for providing the requested information. Burr was also copied on the email when his assistant Kamila Wysocki, forwarded the information to me on October 31, 2023. It was another opportunity for Burr to intervene if he had a good faith belief the communication was confidential privileged information. He had no such concern at the time. Finally, he was copied on the final email that transmitted the information to the councilor. Again, Burr raised no contemporaneous objection to my obtaining or sending the information to the council member that asked for it. There were numerous opportunities where he could have informed of such concern and I would have been pleased to have handle responding to the information request. Again, the first I heard that he had an issue with my providing the information was in his certification.
In addition to the filing of unredacted documents, there were also settlement conferences that took place earlier this week. Rao’s attorney Nancy Erika Smith confirmed that no settlement agreement resulted from these meetings.
“We are ready to go,” said Smith of moving ahead with the case, adding “I want to take depositions soon.”
I am waiting for Riker to introduce the MPL forensic audit thingy. Yeah, I remember when that came to a head and more than a few residents and officials were willing to throw Ms Rao under the bus. And, as I recall, there was a slight lack of equity & respect thingy happening in parallel. Good people. And just before Thanksgiving. Oh, and that remote public comment. One of those nights why we didn’t bring that back.
I can’t believe this Burr guy. I knew he was supremely unqualified but it looks like he also has an issue with truthfulness. Prediction: Montclair will soon have a town attorney with a pending ethics complaint.
Frank,
Yes, I remember that meeting! They tried to blame the CFO for not releasing funds to the library. I forgot which Councilor said that it was a “miscommunication” and that “the CFO must have misunderstood”. Later someone from the library filed an OPRA it came out that Ms. Rao wrote emails to the Council and Stafford asking for authorization to release funds but authorization was not given.
I don’t understand why these guys keep lying and mistreating this poor woman. But now I’m beginning to understand why they are holding on to Burr despite his glaring incompetence and, evidently, penchant for misrepresentation. Birds of a feather…
This whole thing is alarming and, frankly, offensive.
Do you remember how at the last council meeting one of the residents questioned the rationale of keeping Burr on the job despite his incompetence? Councilor Yacobellis acted outraged and vehemently defended Burr. Makes you wonder why. We saw time and time again there are serious issues with Mr. Burr’s performance.
I find this latest stint revolting. He attacked the CFO in his certification by misrepresenting facts and then tried to hide it by redactions and sealing the courtroom. This is a combination of malevolence, cowardice, and duplicity. Montclair should be proud.
Councilor Yacobellis: How do you explain your outlandish attack on Riker Danzig for promoting secrecy and your stern defense of Mr. Burr who secretly attacked Ms. Rao?? Having your cake and eating it too?
Thanks Pat. I was not aware of the OPRA email discovery. It seems Ms Rao was diligent in putting herself on the record in justifying her actions. Maybe she was very aware of the environment she had to work in.
@Jonathan: It was at 1:21:30 – I marked it down because it seemed a bit odd considering… what, at least 9 months of these meetings?
“I’d just like to ask… these employees report to us, we are accountable. if you have an issue with them, please let us know, i think its really disgraceful to call out and question the integrity of our attorney and our clerk’… ‘I’m taking a minute to stick up for people that I think have a lot of integrity in our clerk and in our attorney… ‘ I think the behavior in this room is disgusting, frankly’
Followed by someone from the gallery shouting what sounded like ‘why don’t you sue everybody’, and then Cummings jumping in with a bit of a word salad that was a little bit repudiation of Peter (calling the actions of some in the crowd disgusting), and a little bit call for civility.
Yikes! This is uglier than I thought! This Council is suicidal.
I don’t understand how this Burr guy ever got hired. I wouldn’t trust him with drafting a shopping list and he is writing certifications to the court?
We should have financial audit of the Law Department. In 2022 Council approved a huge budget increase so he could pay all the outside law firms that he hires to do the work that HE should be doing himself! It’s disgraceful.
Thanks for the time stamp, Rtadoyle – those are always helpful given how insufferably long those meetings are these days. It would be fun if you found one for when Burr is recusing himself from discussion on Stafford only to promptly reinsert himself. This was surreal!
Yacobellis is not making any sense. “If you have an issue with them [attorney and clerk], please let us know.” Huh? That is specifically what residents were trying to do! Let the Council know that there are issues with those two direct council hires. From what I see, the two individuals in question are the ones who sorely lack in integrity and ability. They excel in secrecy however and, I suppose, with this derailed Council that is an asset.
And now we see that Burr is lying/dissembling. That is a deal breaker in my book.
This is disturbing. The lawyer from Riker Danzig (forgot the name) got beaten up in court, but it looks like this is all driven by Interim Township Attorney Paul Burr! He wrote and signed a certification that appears to have serious issues with veracity and then he attempted to hide it behind some phony confidentiality rules. The poster above was right – this is an ethics complaint waiting to happen. I am SO glad that Judge Petrillo whacked them for it at the court hearing. And I hope he continues on.
Did Burr ever work for another town before we hired him? If so, I would like to know if he left because he wanted to or because he wasn’t wanted. He is not wanted here, for sure. And why do we have an INTERIM attorney for… a year and a half?? I know the job was advertised at some point. Council members: Are you telling us that no qualified (i.e. experienced) candidates applied? I don’t believe it for a minute. This position should be advertised IMMEDIATELY. Even though Mr. Burr was extended to the end of the year, he can be let go at any time – the law says that a client can sever the relationship with an attorney when the client loses trust. We lost trust! Shame on you for lying about the CFO! All she was doing was protecting our money that you keep squandering on outside lawyers. Ms. Rao is an asset to the town. You are a liability.
Mr. Burr: If you have a remnant of decency and dignity, you will resign before you get forced to leave. You have done a terrible job and we (the taxpayers who pay your salary) don’t want you here.
Lastly, Liz George: Thank you for your excellent reporting. I wouldn’t know about this travesty if not for your article. Hats off!
Scriberman, my only guess is that Peter was taking the previous commenter as a jumping off point. The person before that mark covered a lot of ground in attacking the clerk and Burr – and I think you could classify many as ability related, but some as integrity related.
As you call out, there is a difference between being bad at your job, and not having integrity/being corrupt. Just a hunch, not really worth diving into. I know some folks are conflating all of their grievances with Burr at once as part of this suit, even for the topics that aren’t included. Everybody loves a good old fashioned pile on!
@ e. dell + Geronimo
Paul Burr “burrning” through money? “Appauling”!
Based on what I found on his website, it seems he has never worked for another town. Check this out: “After working as litigator for a New York City Real Estate and Civil Litigation Law Firm, Mr. Burr stated his law firm in 1995.” What the hell is that?? Why no name? Before that, he lists working at Kravath, Swine & Moore. Prestigious law firm indeed, but he worked there BEFORE he went to law school. In what capacity did he work at Kravath? Mailroom clerk?
He appears he is “creative” in more than way. Scary.
McAlistair – That’s Kravath, “Swaine” & Moore. The irony is not lost!
Frank,
I think you are right. It looks like Ms. Rao is very diligent, possibly by nature but also… out of necessity. When you have a Manager who screams at you when you are trying to follow laws and a Mayor who is secretly out to get you, I guess you become vigilant. Can you imagine working in an environment? I had some crappy bosses in my life, but nothing remotely like that.
I spoke with interim town attorney only twice. First time it was about a year ago. I had a question about an encroachment issue. He wasn’t making any sense. The second time was maybe 6 months ago. I called the Clerk’s Office with a simple question: “Do I need a permit to film a ceremony on my property?” Clerk transferred me to the Law Department. Mr. Burr said: “That’s a very good question.” He then told me that this should be addressed to the Clerk’s Office. Clerk’s staff transferred me back to him. I’m not kidding. Needless to say, I never got the answer.
Clerk Nieves is up for reappointment this summer. If she does get reappointed, she gets automatic tenure. I seriously think that we should reach out to Glen Ridge or any other neighboring town who has a decent muni-clerk and arrange a shared services agreement while we look for a qualified candidate.
McAlistair,
I like your puns. You inspired me to come up with another one: Burr is a ‘burrden’ we can no longer carry.
As to the substance of your comment, I just checked Burr’s website – you are right, he did not list a single entity/law firm that one might call to vet him! Other than Kravath where, as you pointed out, he worked before law school. Someone mentioned before that his private practice consists mostly of real estate closing. How in the world does that qualify him for the position of town attorney??
Teddy Roosevelt’s “The Man in the Arena”?
Funny thing is, TR would have loved the idea of ESPN & its SportsCenter.
Frank, two thoughts:
1) Repeat after me: non sequitur.
2) Burr as The Man in the Arena? You gotta be kidding. I can agree on The Clown in the Circus though.
This all is really pathetic and embarrassing. We have an embarrassing mayor and town council. Burr and DeVito are embarrassing, they embarrass themselves. We need to get out of this. What is less expensive? Setting with Rao, who has been injured by these people, or constantly running the clock on incompetent town attorneys and outside attorneys. The judge seems to be telling Burr, DeVito, and the Mayor and council that you are all ridiculously incompetent. When this is done, these council people that took the free insurance need to be sued for all those back premiums. Do we self insure? If so, we need to get back what we spent on their medical claims.
Although terrific piece by Liz George.
Calvin,
Martin just warned you about my oblique references and you acknowledge his comment was clear & well received.
My 2 comments were to Pat. She will get it.
I have no opinion on the merits of the pending litigation but if the commenters are right and this is a case the Town can’t and perhaps should not win then the reality is that in the end Montclair’s taxpayers will be paying for all of the lawyers including the plaintiff’s. If this case is a loser for Montclair its lawyers should be discussing Offers of Judgment and anything else they can come up with to limit the exposure to plaintiff and her lawyer. The problem appears to be that the individuals on the Council seem more concerned about how they each look relative to each other rather than what will best serve the interests of the people who elected them. If that is true this is not going to end well. The question they should be asking is what will it cost to get out now? What will it cost to litigate? What are the likely outcomes including fees to plaintiff’s counsel? The lawyers at Riker Danzig will be able to answer those questions but they have to be asked. This does not look like a case that will age well.
And everyone take a chill pill, it could be worse. We could be the U.S. Supreme Court.
So when you start taking lawyers seriously, just look at the highest, the bestest in the land. Letting the Supremes self-certify their ethics is no different than allowing Boeing to self-certify their 737Max.
One is an institution and the other a corporation registered in Hunter Biden land. Yes, that Hunter Biden who is, by his own hard work, is part of the 1% wealthiest Americans.
Anyway, which organization is worse? You pick.
And the latter is the lesser of two evils.
Wow, this is like being stuck in the Twilight Zone. I can’t believe what I’m reading. One council member, (you Yacobellis), actually said, “I’d just like to ask… these employees report to us, we are accountable. if you have an issue with them, please let us know.” Really? You can’t be serious? .How can anyone, have the temerity to make such a disingenuous statement?
Did that.
People have been letting you know, repeatedly. I have been waiting since October, for answers to several OPRA requests. N J statute clearly states OPRA requests should be answered in 7 days, with time extensions when needed. But, 8 months? I let (you Yacobellis) know; Let the entire council know; Let Burr and Devito know; let the town clerk know. Sent emails, three times, letting everyone know of the extremely long OPRA delays from the clerk’s office. Didn’t anyone read the emails, because no one responded. Oh wait, Councilman Russo, to his credit, did reply. But, eight months and I’m still waiting, and waiting and waiting.
And I understand that there are other residents who have been waiting even longer for responses to their OPRA requests. And then there is the issue of the clerk’s failure to publish timely council meeting minutes; both, are critical legal requirements for the job of township clerk. I guess accountability is relative, I guess accountability, if it happens at all, takes a very long time. We are still waiting to see that accountability.
I have found the staff in 205 to be very helpful overall. I wanted a copy of a particularly sensitive, single document held in the Law Dept. so I went in person. The Law Dept sent me to the clerk’s office to file my OPRA, which I did. The Clerk’s Office staff could not have been more helpful, courteous & efficient. They under-promised and over-delivered my request – within 36 hrs.
Frank, outstanding, simply outstanding. So they can deliver on OPRA requests. Would you mind asking them to, in a timely manner, deliver my requests. There lies the rub, some people, get their OPRA request answered in a courteous & efficient manner, while others wait, and wait, and wait. How does one get on that other list, that list for people whose OPRA request get addressed?
That’s not how government agencies are supposed to work. Not at all.
It may be just respect, manners and charm. I always remind myself of the first and I am blessed with ample amounts of the latter two. I stop to listen to how they are doing. I show a sincere interest in their response as I want our employees to know they are appreciated. Then I ask for their feedback on my performance and attitude. I am a better person when I leave.
36 hours.
Frank Rubacky
Or it may just be that they have no real intentions of serving the greater public. It’s somewhat difficult to claim, a lack of respect, manners or charm when they are simply receiving OPRA requests via emails. Not looking to be a better person, only want my OPRA requests answered, in a timely manner, as the law states. Did not see anything stated in the OPRA law; about the need to engage in small talk, showing interest in their responses, or whether they are appreciated or not, in order to get service from town government employees. They, as public servants, are there to do a job. Their job: to serve the public. It wasn’t always this way, previous town clerks were always prompt, and I OPRA’d a lot..
I am appreciative,,,,,when I get my OPRA requested stuff..
No, I do feel your pain with some of these public servants. I was just posting yesterday finding ethical minds for our Supreme Court is impossible.
Their payoff scale is not as high as I thought it would be.
I’m just finding that perceived conflicts are kind of not worth the attention. And it’s not like the recent targets graduated from Ivy League law schools. Or passed The Bar. Our targets are just local part-timers.
No. Having a corrupt Supreme Court puts a real damper on local outrage. It’s about the children.
Again Frank, as I did in the other Barista “Yacobellis skirmish” story thread, I really urge you take a pause and to do some more self-reflection here, before you hit send.
David Herron is telling us that the Clerk and Town Attorney are acting unlawfully, not supplying him with timely OPHRA requests for 8 MONTHS — in clear violation of law. And your response is: “well, they take care of me.”
Perhaps the town counts on you to continue to opine in ways that only confuses everyone more on issues. Not clearly expose their internal convolutions that we see almost everyday now involving top administration employees and our Councilors. Embarrassing information that David, as a good government advocate, has been revealing.
So your defending instead the OPHRA non-deliverables at 205 because of your “manners and charm” — when multiple people report the Clerk and town lawyers are just not doing their jobs, like no Council minutes posted for over a year, or other official requirements going unfulfilled — is just a slap in the face to everyone trying to right the government ship.
That chill pill you advise above for others…is really best self-administered.
Martin,
You and David really need to have more of a sense of humor AND not take the administration of our village too seriously.
I was just explaining the facts of life to a couple of land use board members as to why they weren’t getting the automatic document updates from the town that I get. All of us used the same subscription sign-up process from the same web pages. They, like David, lament they don’t get theirs with a tich of irritation that I get mine like clockwork. Updates that cover all activity over the prior 24 hrs. I get them within 4 hours. Yeah, I am that special.
Could it be my charm does work on 1’s & 0’s? Or are the gremlins in the system conducting personal vendettas? Or I am a descendant of Captain Marvel? I would like to think so.
But, alas, it is because the township administration has not maintained the ecode360 registry. In fact, there has been a note at the top of our home page saying so for almost year now. So, when an homeowner’s attorney appears before a land use board and is told to comply with our 2022 Impervious Ground Cover ordinance, he says what ordinance? It is not there. And the Chair says all that matters is it was passed, it legally exists and he can get a hard copy from 205. But, we don’t publish it.
And you wonder why it takes people so long to get their OPRA responses. It is because I am blessed. It is really that simple.
And Martin, that is how I found out the Bellevue Theater had withdrawn its development application. Yes, the lot the Council designated an Area in Need of Redevelopment? Where there was a tax abatement on the table? I found out within 4 hrs.
We are what we write.
Quite the mic drop moment for a pseudonym.
It’s called overkill, Frank.
Frank, I don’t really get you. If these issues are not worth your time and shouldn’t be taken so seriously, why are you here posting.
@ montyxxx,
I wish you would read what I posted above more diligently and objectively. What did I write? Once you do that, you will start to understand why I and others post here. Why do you post here?
I firmly believe Martin & David are people that just shouldn’t manage people. They don’t have strong people skills. They could blunt this limitations by having more of a sense of humor. Did you read what David said about public employees? If that is the way you treat employees, then you will not understand a healthy workplace.
And, yes, I was pulling some legs here. I would have thought most with a sense of humor could have figured that out.
As far as the 100,000+ pages of OPRA requested docs: you just know I will now have to OPRA the OPRA activity. I think we may find that some complainers (not here) may not be telling the whole story.
Amen, silverleaf (in response to your comment posted on June 24 at 1:31PM). I’m traveling at the moment so I’m on a delay.
Frank, Councilors are not even part-timers; sitting on the Council is considered a volunteer position.
In contrast, most municipal employees are full time and are compensated as such. According to an OPRA filed by Jonathan Moon a while back, the Clerk makes $125,000 in salary plus a stipend of $12K, per year. I have no idea what the stipend is for. For NOT doing OPRAs and never answering phone? That sounds about right.
Frank, I do not understand how you tied all this to Supreme Court. I do recall there was a Supreme Court’s or Appellate Division’s decision that addressed the issue in question: municipal clerk MUST do meeting minutes and they are to be approved at subsequent meeting. That Nieves got away with not doing them for a year and didn’t get fired is incredible. It is also a testament to the fact that someone was and is protecting her. Let me take a wild guess: Sean Spiller?
Lastly, Pat, do you really understand Frank’s missives? If so, perhaps you can serve as a volunteer interpreter? Frank takes up a lot of space on this platform and it would be nice if we got something out of his omnipresent contributions.
Once again Frank, at the risk of redundancy as the takeaway…perhaps it’s your communications that needs to be much clearer and seen much much less?
David Herron and I do just fine with people, individually and in groups. We’ve both worked in corporate office settings and I have a 30-year history managing multi-impactful personnel driven projects — in varying industries.
Contrasting this, it was not at all clear to most here that you were attempting to be sarcastic, or funny above — as you now infer. And so, we both responded in kind. Again, the issue and thus need is for more self-reflection on your part. For awareness, that your communications are not being well understood and/or taken in the spirit and tone intended…(as well far too much of it to the point you do not give space for response before spinning people off into something anew).
This really needs to be internally processed. And accepted. Not defended. Because that is the universal takeaway. I am telling you this and it’s not with rancor.
Less is generally more and a clear: who, what, why, when, where and how type overlay…generally the guiding literary light to being better understood.
Martin,
You have some very good points about me. I will reflect and incorporate what I learn into my ongoing program of self-improvement.
Thank you.
Calvin – Town Clerk Nieves not recording meeting minutes for a year? Not returning phone call inquiries? My *ucking blood is boiling right now!!! This sort of behavior would not be be tolerated in the private sector. Let’s see . . . Padmaja Rao’s harassment / whistleblower retaliation lawsuit, LP redevelopment in-fighting, Yacobellis accusations / Yacobellis defamation suit (now dropped) and god knows what else. I’ve lost track. Makes one wonder about what else is happening at 205 Claremont. But wait, “Montclair To Celebrate July 4th with ‘Bigger, Better’ Parade and Picnic”.
Personally, I am done with these incompetent, corrupt, blood-sucking, political hacks. In addition to finishing all pending legal action, we need to clean house on May 14, 2024. Someone was not paying attention . . . or was complicit. My town deserves better!