Insisting that a measure to indemnify themselves in the face of legal action was long overdue, the Montclair Township Council at its meeting on Wednesday, April 12, approved an ordinance that in many circumstances would guarantee a range of municipal employees – including the council – with a paid defense. 

The indemnification ordinance, adopted over a stream of objections from residents, seemingly gives the township attorney broad authority in determining whether to have Montclair’s legal department represent an employee or for the township to pay for an outside lawyer.

Judgments against an employee and “bona fide” settlements are covered under the ordinance, as well as “any pending, threatened or completed civil, criminal, administrative or arbitrative action, suit or proceeding.”

At the same time, language in the ordinance also suggests that the township would only provide indemnification against criminal charges “provided that the criminal proceeding has been dismissed or results in a final disposition in favor of the employee.”

Councilor-at-Large Peter Yacobellis framed his support for the ordinance in stark terms, while suggesting that working in an official, public position exposed Montclair officeholders to an increased risk of burdensome litigation. He said that without the ordinance, people considering a run for a council seat might be deterred.

“The idea that anyone would ever want to serve, if your own house would be at risk, your retirement, any of that would be at risk is absurd,” he said. “We absolutely should be indemnified when we are acting in our official capacity. So I'm doing this for me, for us, and I'm doing this for future councils. I want to make sure that anybody who wants to run for office in the future can do so without fearing that they would have tremendous financial risk.”

Residents addressing the council just before the late-evening deliberations said they were troubled by the ordinance's abrupt introduction at the council’s March 27 meeting, though it was not listed on the initial agenda available to the public. Some said that it tapped into their disquiet that the council did not always operate transparently. 

“At the last meeting, after midnight, after executive session, not being on the agenda, this item was voted on,” Lauren Berman said.

She expressed concern that other issues confronting the council – including taking action on the use of leaf blowers – seemed to be on the slow track, while the indemnification ordinance received swift attention.

“Why is indemnifying people for criminal behavior urgent enough that it can be passed without being on the agenda,” she said, “but health safety, climate change, anything else, doesn't fall in that bucket? Explain it to me. Please.” 

A number of constituents, as well as Councilor-at-Large Bob Russo, questioned the timing of the ordinance, drawing connections between it and an investigation by the Attorney General’s Office, and the use of state health insurance benefits by members of the council. A subpoena from the attorney general issued in December compelled Montclair to turn over any existing time sheets and attendance logs for all members of the council.

The subpoena came two months after a lawsuit brought by Montclair’s chief financial officer, Padmaja Rao, describes her repeated efforts over several years to bring council members in line with a requirement that to participate in a state health insurance plan it is necessary to officially log 35 hours a week. In her discrimination and retaliation suit against Township Manager Timothy Stafford, Rao says that four members of the council had been improperly covered under insurance run by the State Health Benefits Program and paid for by Montclair. Two other council members, the suit says, took $5,000 opt-out payments they were not entitled to. 

Addressing Montclair’s elected officials, Christina Thomas, a former candidate for the council and an attorney, pointedly accused members of acting from self-interest, and said that the ordinance was too broad and too vague. She said that it would reward misconduct and questioned whether Stafford, now suspended and facing removal by the council, could find protection in the measure. It remained unclear if he could.

“If someone steals from the taxpayers,” she said, “the taxpayer should never be required to pay for the thief's criminal defense. So that person gets away with even more.”

Alluding to the account in the CFO’s lawsuit, Thomas said, “I know you don't want to have to pay for your own counsel fees for taking insurance that you voted for and that you were specifically advised by the town attorney at that time that you are not entitled to take, but you chose to do it anyway. That's on you, the council people, not the taxpayers, who cannot now be asked to pay for your theft.” 

Yacobellis, as he has done previously, said he enrolled in the state plan, thinking there was nothing untoward about doing so.

“I get invited to enroll in health care every single year,” he said. “When I was elected, I was called in to HR, sat down, packet was put in front of me, here are your benefits, Councilor-elect Yacobellis, please fill out the paperwork to enroll in your benefits.”

He called the ordinance “pretty pro forma,” providing a protection that many other municipalities have on their books. 

Second Ward Councilor Robin Schlager offered a cautionary tale, saying that while a member of the Planning Board she was named in a lawsuit brought against the board by someone opposing a plan years ago to redevelop Lackawanna Plaza. 

“I went to the township attorney at the time and asked him, ‘What do I do?’” she said. ‘“I'm named in this lawsuit. ‘Oh, well, I'm very sorry, Robin. I represent the township and I represent the town council. You're going to have to get your own attorney.’”

She said that the suit was dismissed about five months ago, but that she had faced the prospect of daunting legal bills.

Rarely has a council session over the last several months gone by without rancor among council members. Wednesday night produced a fresh firestorm, with Russo saying it was impossible to separate the ordinance from other controversies, including the prospect of council members facing legal consequences for possibly accepting the state insurance.

“If you look at it in a vacuum,” Russo said, “and you look at it as something that is philosophically good to protect employees, from maybe frivolous lawsuits, or unfairness, I happen to think that these colleagues were misled, I happen to think it's the town's fault that they have problems. But I also think that they should have known better.”

A letter obtained by Montclair Local from a confidential source and reported on earlier this week indicates that the ordinance came up for consideration in the hours just before the March 27 meeting. The letter, from assistant township attorney Gina DeVito to the township clerk, said that the ordinance would be introduced “Per Deputy Mayor’s request.”

Russo said he learned about the ordinance in a “little cover note” that said that the deputy mayor, Bill Hurlock, had requested the ordinance be brought up for deliberation.

“It’s the genesis of the ordinance that’s the problem,” Russo said. 

Aiming his dismay at the deputy mayor, Russo yelled, “Here's the problem, Bill Hurlock. You asked for this thing to be put forward because you think you're going to have a lot of legal costs.”

Russo could barely finish his sentence before Hurlock angrily denied the accusation.

“You better watch it that you don’t get sued for libel and slander,” Hurlock said, before adding that he had worked with several of his colleagues on introducing the ordinance.

“So let’s be careful with the characterization,” he said.

Russo asked Township Attorney Paul Burr if Stafford would be indemnified under the ordinance. If there was an answer it was lost amid a din of commotion.

Yacobellis, calling Russo’s behavior “far out of line,” made a motion to adjourn the session but moments later withdrew the motion.

The vote approving the indemnification ordinance was taken, 4-1, with only Russo opposing. Fourth Ward Councilor David Cummings was not at the meeting, and Mayor Sean Spiller had recused himself from the debate and the vote. He said that because he had not been at the March 27 meeting when the ordinance was introduced, he needed to step out of the chamber.

Soon Russo was gone, departing in anger and frustration, leaving the council behind to finish its work for the night.