New member of Montclair CFO’s legal team is fighting a familiar battle
Nancy Erika Smith, an eminent employment lawyer based in Montclair, joined Padmaja Rao’s legal team in recent weeks, bringing both decades of experience and an acute sense of connection to the case. For the last five months, she has watched the drama unfold – pitting Rao, Montclair’s chief financial officer, against Township Manager Timothy Stafford and the township.
Rao has claimed in a lawsuit against Stafford and the township that he created a “hostile work environment” for her and other female employees.
Smith said she was “shocked” that her hometown has been operating, as she sees it, in secret, trying to keep information from the public. And in Rao, Smith sees a familiar figure – the whistleblower who is finally compelled to step out of her workaday role to throw open a curtain to abuses on the job.
“What’s funny about whistleblowers,” Smith said, “is that they don’t know they’re whistleblowers. They are really concerned about things other than themselves, and that's why it's so important we protect them. Because they're really representing us and not themselves. Whistleblowers, to me, are our real heroes, and often they don't know it.”
Smith’s calling card on this comes with deep perspective. She has carved out a celebrated place in discrimination and employment law, having established judicial precedent with landmark victories and successfully litigated a number of high-profile cases.
She represented Gretchen Carlson, the former Fox News anchor whose accusations of sexual harassment culminated in the ouster of Roger Ailes as chairman of the network and a $20 million settlement payment to Carlson.
Smith’s entrance into Rao’s case – joining Roosevelt Nesmith, also a Montclair attorney – comes at another potential flashpoint, with lawyers representing the township recently filing a motion to have Rao “walled-off” from several aspects of township affairs. It also follows a resolution passed last month by the township that gave Stafford notice that he was subject to removal in 30 days, a period that ended on Thursday, March 9.
Rao’s suit, filed last October in Superior Court of New Jersey, alleges that Stafford subjected her and female colleagues to repeated “verbal abuse and bullying.” Repeated inquiries she made into fiscal practices she viewed as questionable were met with fiery displays of temper aimed at Rao and retaliation, including from Mayor Sean Spiller, the suit says.
Among other contentious matters cited in her suit, Rao says that concerns she voiced to Stafford over Township Council members being ineligible for the state health insurance they were receiving led to reprisals, including being barred from Finance Committee meetings.
In December, the New Jersey Attorney General’s office issued a subpoena to Montclair Township, demanding that pay records, time sheets and attendance logs for all the council members be delivered to a state grand jury.
The motion filed by the township in Rao’s lawsuit seeks to cordon her off from anything to do with the implementation of the health benefits program, as well as anything to do with payments to Riker Danzig, the law firm defending the township against Rao’s allegations. It also seeks to continue Rao’s exclusion from the Finance Committee and to block the CFO from participating in any activities surrounding an investigation into misconduct in the Montclair Fire Department – another point of dispute between Rao and Stafford. The motion argues that she should play no role in payments to O’Toole Scrivo, the firm that carried out the Fire Department investigation on behalf of the township.
Smith, who has been practicing law for 42 years, said this is the first time she has encountered a motion like this.
“I've had many clients who are suing and are still employed by their companies, and what's walled off are conversations about the litigation,” Smith said. “But if your job is to implement the health care in the town, and to implement payments, then she should be able to continue to do her job.”
Those functions, Smith said, are distinct from any internal conversations regarding the township’s legal defense. Rao has never interjected herself into these deliberations, Smith said.
In effect, the motion is itself retaliatory, Smith said, perpetuating many of the punitive actions that her suit says were leveled at her in the first place.
“They can say that she can't participate in discussions about the litigation,” Smith said. “That happens all the time. But they cannot stop her from doing her job. I've represented cops who are still employed, 10 of them at New Jersey Transit. I represent operations people who have access to all kinds of information. I've represented lawyers who still work for the place they're suing. You don't say you can't do your job anymore.”
Smith added, “They're using litigation to do the same thing that they did by taking her off the Finance Committee, so she can’t do her job as CFO that gets paid for by taxpayers.”
The township’s motion makes a sweeping demand to have Rao and her attorneys “walled-off from any privileged or confidential information concerning any of the matters at issue in the litigation,” or to publicly disclose such information. It is at least in part an attempt to have the court issue a gag order, Smith said.
“I have been shocked watching this case from the beginning – that the people's republic of Montclair turns out to have problems that you don't expect in a town that is so proud of its progressivism,” Smith said. “A lack of transparency, hiding things from the public. And now there’s a motion to continue to hide things from the public.”
A phone message seeking comment from Derrick R. Freijomil, an attorney with Riker Danzig, was not returned.
In an email, Montclair’s acting township attorney, Paul Burr, said he was “bound by my legal and ethical responsibilities to the township and am not at liberty to discuss matters related to pending litigation.”
Days after Rao filed her suit last fall, a former Montclair deputy clerk, Juliet Lee, filed a second discrimination suit. Since then, two additional women, both former township employees, have provided statements in support of the lawsuits. While Nesmith represents both Rao and Lee, at this point Smith is involved only with Rao’s case.
Smith, a Montclair State University and Rutgers Law School graduate, was only a few years out of law school in 1986 when she won a significant case in which she represented a UPS employee who said he had been fired for having an extramarital relationship while he was estranged from his wife. In winning the case, Smith created new law around marital status discrimination. A court opinion on the case established a new standard and method of proof in discrimination actions in New Jersey.
Victims of workplace discrimination have a singular cross to bear, Smith said. And she senses that with Rao, too. In close quarters like the Municipal Building on Claremont Avenue, and with a small chain of command leading to Stafford, abuses can feel especially personal, Smith said.
“There's a real hurt,” Smith said. “It feels like a betrayal. You’re part of a family. You celebrate birthdays, you know who’s had a baby or a grandchild and whose kids are getting married. It’s close-knit and you’re in the same building every single day together.”
A whistleblower like Rao can find herself alone on an island, Smith said.
“You walk into the lunch room or the break room and some people are going to be uncomfortable and afraid to be associated with you,” Smith said. “Other people are going to try to talk to you about it, and you really can't in the workplace. You don't want to get in trouble. And then they turn on you, and you were just doing your job. And it really hurts."