Councilman Hopes for Apology from Borough Attorney; Borough Attorney Says Councilman Came to an Ambush Without Ammunition

February 12, 2013 at 11:33 AM

CALDWELL, NJ - Councilman Edward Durkin, Jr. and Borough Attorney Gregory Mascera exchanged heated words at Tuesday night’s Caldwell Town Council Meeting because Durkin felt he should have been notified of correspondence between the Borough and a resident.

“I had zero knowledge of this at all, zero, none at all,” said Durkin.

The resident in question, Michael Mignone, had presented his concerns over a community center issue to the governing body at the previous January meeting.

Caldwell resident, Michael Mignone. Credit: Krysta Venturella

During a telephone interview with the (TAP), Mascera expressed that following the meeting, the Community Center Committee, which consists of Council President Richard Hauser, Councilman Thomas O’Donnell and Mayor Ann Dassing, met to decide the appropriate course of action. The decision was made to refund money to the Mignone family for the time remaining on their membership.

Hauser contacted Mascera by email and asked him to write a letter stating that the family’s membership had been terminated, along with a check for the refund of unused time. Borough Administrator Paul Carelli was copied on that email.

Mascera drafted a letter to be sent to Mignone, Carelli approved the letter, and the letter and the check was sent to Mignone on Jan. 23.

“I know we may not always be the best of friends, but we must always always serve the residents of Caldwell with our best interests, always, every single time,” Durkin continued at Tuesday’s meeting. "Business is being done behind my back. We are a mayor and council form of government; this is not a dictatorship where whoever has majority has the final say. I think it is outrageous how someone can speak on my behalf, the attorney especially.”

Officially, Caldwell is a Borough form of government. It is organized as a Mayor-Council-Administration governing body. This traditional form of government was created in 1987 to streamline borough law and have less need of amendments, changes and contradictory rules. The act allows for the mayor to delegate responsibility to an appointed administrator.

Mascera, then interrupted Durkin saying “excuse me” four times in a row, to which Durkin replied, “I’m not done. You can speak afterwards,” and then continued, “Did you or did you not write a letter on the governing bodies request?”

Mascera replied, “At the request of the mayor and the governing body, the way this governing body is structured.”

Durkin replied, “Well you are incorrect in doing so. I was not informed at all. My name is right here too,” he said as he pointed to his nameplate on the desk in front of him. Durkin continued, saying that the letter “is ridiculous” and asked Mascera what the resolution and results were, and he then repeated twice that the “procedure was wrong.”

Mascera said that he does not set procedure, adding, “You don’t call out anybody whether on this council or the attorney in public.” Speaking over Mascera, Durkin questioned “what was the settlement,” “what was the settlement,” “what was the settlement,” “what was the settlement.” Mascera then said that Durkin was out of order, and Durkin replied that he “does it all the time.” Mascera repeated, “You are out of order.”

Left, Durkin, Right, Mascera  Credit: Krysta Venturella

Durkin then asked, “Who are you to make the call?” in regards to the $158 refunded to Mignone. In a louder voice, Mascera replied, “I did not make the call. I did not make the call.” Durkin questioned if Mascera’s name was on the letterhead, and Mascera confirmed that it was. Durkin responded, “Guilty as charged.”

Mascera said that he has never been spoken to in that manner by anyone or accused of wrongdoing in the four years he has been on the council, and that he was shocked that Durkin did not try to contact him about this matter before addressing him in a public forum.

Durkin said that he wants to have the resident returned to good standing with the community center, adding that he took an oath to serve the best interests of Caldwell, regardless of circumstances.

Hauser, chimed in saying, “Along that line, I think that some of the comments and apologies that were made in last week were inappropriate, since all the information had not been disseminated.” He continued, “in the future I would suggest that instead of throwing our borough employees under the bus, that those of you that would like to apologize on behalf of the borough would first contact the borough administrator and find out…”

Durkin interrupted Hauser and said, “Council President, I’m not apologizing for that at all. I just need to get two sides to every story.” He repeated that he intended to get the resident’s side of the story and was apologizing for the procedure, in which the resident wrote letters and had calls unanswered. “If it were your family or my family, we would be irate too. He has two kids, the two perpetrators who apparently did something wrong are four and five
years old.” He added, “This is Caldwell, we work together whether we like it or not.”

Mascera then asked to speak, and again said, “I have never been spoken to in a council meeting in four years, or accused of any wrongdoing. I am shocked that a professional councilperson would accuse the borough attorney of wrongdoing after taking instruction from the mayor and from the council committee members, and I resent the fact that Mr. Durkin did not pick up the phone, did not telephone me to discuss this situation.”

Mascera also noted that he had an email, which was sent to him from Durkin, in which he stated that he would “like them to be friends.” Mascera was concerned that only Councilman Frank Rodgers and Councilman John Kelley were copied on this email, whom Mascera called “Durkin’s political allies.”

Durkin attempted to make a comment, but Mascera exclaimed loudly, “I am speaking.”

Mascera said that Durkin’s concerns at this meeting were the first time he was hearing about them, in the better part of two weeks since the matter was brought up at the last council meeting.

“I am surprised that Mr. Durkin has today decided to accuse me of wrongdoing in public, without first addressing and questioning me about why I wrote the letter and with whose instruction the letter was written.”

Kelley then addressed the matter saying that he feels that communication has been lacking, and that in regards to this matter, all council members should have been notified. He said he has yet to receive an email regarding this subject from the Borough, and, “as sensitive as that was, and as concerned you all were about an apology being made, you would have thought that this information would have been forthcoming.”

Mascera then informed Kelley about the Open Public Meetings Act, email chains as well as chains of command, stating that the letter went to the mayor and borough administrator, which was the expected  procedure. Mascera cautioned that conducting business through email is never a good idea. Kelley said that this instance raised a number of communication issues that may need to be addressed in the future.

When Kelley questioned Mascera about the policy to handle a member’s complaint at the community center, Mascera noted that there is a difference between a policy and a gripe.  He explained that there is a procedure in place to handle a gripe internally with the Caldwell Community Center Committee.

Referring to Mignone’s situation, Mascera commented, “The Community Center Committee handled that gripe in the way they saw fit. They did not sit on their hands. They immediately looked at it. They immediately reviewed the video.”

Durkin asked how did was the issue resolved and Mascera noted that the member was told that he could have his money back, for the time missed. Durkin responded, “that is unbelievable” and “reprehensible” that a check could be cut without council members being notified.

Inaudible whispers were shared between Mascera and Durkin, and then Mascera spoke to the room, stating, “For the record, Councilman Durkin just asked me to step outside.” Durkin responded, “to talk.” Mascera then added, “Mr. Durkin this has never happened until today and you are two weeks on the council. This never happened in four years. There have been disagreements and people got along despite their differences.” He continued, “So let’s look at what has changed in the last two. I have never been asked to go outside.” Durkin reiterated, “to talk.”

During the public portion of the meeting, Mignone’s uncle, Gary Iacobacci of Bloomfield, noted that his nephew’s sons are good children who are non-destructive. He said that he feels the Caldwell Community Center wants to sell memberships to families, but does not want children to use the facility.

He also noted that while the children were at the facility, supposedly, there were rules violated. Yet when asked for those rules in writing, the community center did not make them available.

Hauser responded by saying that there are rules, and that the Community Center Committee is in the process of putting those rules down on paper.

Mascera informed Iacobacci that a purchase order had been drawn and Mignone was offered his money back in the amount of $158 for time unused.

Kelley said that this incident is terrible publicity for the community center, and stated that he would have wanted to prevent this matter from getting to this point.

Mignone’s concerns were in regard to his having to bring his own balls for his children to play with on the basketball court, and said he felt he should have had access to the equipment because he paid the membership fee. He commended Kelly and Durkin for standing up and apologizing at the last meeting.

In regards to the community center’s budget, Hauser responded that they spent money on renovations and it is now in pristine condition. O’Donnell added that the center needs the camp and leagues to support the finances of the community center.

In an email interview after the meeting between Durkin and TAP, Durkin explained his understanding of the disagreement. “I could tell Mr. Mascera was still angry over the fact that I spoke out against this ordinance,” wrote Durkin. Durkin was referring to the ordinance discussed in this article. “Being that the personnel of Caldwell is a direct reflection of the governing body, I want to have a say in the hiring process,” wrote Durkin. “I believe it's important for the department heads, the borough administrator, and the governing body to work together to make sure that the Borough of Caldwell has the best staff possible.”

Regarding the letter that Mascera sent out on behalf of the governing body, Durkin wrote, “I did not grant him permission nor was I informed of this very sensitive correspondence to this resident of Caldwell. This letter detailed an action that I had no say on or was informed about. During the previous council meeting, this particular resident spoke during the public session about how furious he was about an incident regarding he and his family and how
they were treated at the community center. I apologized to this resident and told him I would personally look into this issue, and get back to him.”

Durkin expressed “I believe the letter came with a check but I am not sure.”

“Subsequently, I was never entered into the decision process,” Durkin continued in his email to TAP. “Apparently, my input as a councilman was not needed. I can see if the community center committee came to their informed opinion, but this matter should have been brought up to the governing body for further discussion and until a consensus was reached as to how best to move forward with this distraught resident.”

“At this time, Mr. Mascera lost it,” wrote Durkin. “I was shocked as the newest member of the council at how he acted. His demeanor and speech were reprehensible. He called me a very derogatory comment, which is on the record. I was confused at to why he would chose such inappropriate language. I was appalled, and said if you have a personal problem with me, lets (sic) step outside the chambers after the council meeting to talk. For Mr. Mascera to infer otherwise is preposterous. Mr. Mascera knows better as an attorney to fabricate a story.”

Durkin ended his email, writing, “I hope to receive an apology shortly from Mr. Mascera, so the Borough of Caldwell can move forward and deal with the important issues that the town of Caldwell face.”

Regarding the Tuesday night Council Meeting, Mascera responded to the TAP by saying, “It’s funny, I had walked into the meeting with him and he didn’t say a word about being dissatisfied with anything, or having anything to say between the last meeting and Tuesday’s meeting. After the Jan. 15 meeting, I gave him my card and said to him if you need to speak about anything, call me anytime. I was very surprised that he for some reason tried to ambush me at the meeting. I saw it as someone coming to an ambush without ammunition. He was not aware of the protocol, and he decided to take it up with me instead of other fellow council members.

“I tried to resolve it when I suggested he was out of order,” Mascera said. “He did not want to let it rest, he thought I had said something to him but I did not, I was addressing another council member. Then he said to step outside. I was appalled that adults would say that to each other. It was his ignorance in regards to the procedure that led to those actions.”

“I was just doing my job and I felt like I was attacked by someone who did not have the facts about how things are supposed to work in an open government,” said Mascera.

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