MAHOPAC, N.Y. The Town Board voted last week to once again retain the Manhattan-based law firm of Cozen O’Connor to defend itself against an Article 78 lawsuit, leaving Supervisor Ken Schmitt—the lone “no” vote—frustrated and angry.
Schmitt said the hiring of an outside law firm should have gone through a bidding process (request for proposal, or RFP) in an effort to find a less expensive agency.
An Article 78 proceeding is used to appeal the decision of a New York State or local agency to the New York courts. One was filed against the town of Carmel, New York City’s Department of Environment Protection (DEP) and the county health department, by Councilman Mike Barile last month.
Barile and his business partner, Tommy Boniello, had been accused of creating an illegal sewer hookup for the Blu at the Lakehouse restaurant on Route 6N (property they own), and the town was also cited by the DEP for not following several guidelines regarding sewer hookups. The town hired Cozen O’Connor to defend itself against those DEP allegations.
Meanwhile, Barile said a permit from the DEP was the last document he needed to make the hookup legal when, he said, some members of the Town Board asked the DEP to cease the permitting process, which he said slowed everything down. He filed the Article 78 in response.
“The Article 78 was filed by me and my partner because a letter was sent to the DEP from the town of Carmel asking them to stop their review [of the permit application],” Barile said at the board’s Nov. 13 meeting. “That will be decided in the courtroom whether that’s legal or not. But the Article 78 basically says, and I will use layman’s language, ‘Quit playing games with us and tell us what’s going on.’ That’s it. Very simple.
“By the way, once the Article 78 was filed, all the agencies started working together. It’s remarkable,” Barile added.
Schmitt protested that the Town Board would once again hire Cozen O’Connor—this time to defend against the Article 78—without soliciting competitive bids.
“Do we really need to give this work to a Manhattan law firm when it could be given to another law firm that would be less costly to the taxpayers?” Schmitt asked the board.
Councilwoman Suzi McDonough, who is serving as the liaison between the town and Cozen O’Connor for the DEP allegations, said there may be local attorneys who are less expensive, but that because Cozen O’Connor is already familiar with the specifics surrounding the case, it made sense to go with them.
“There probably are [less expensive local law firms], but when we spoke about who we were going to hire, we all agreed that if we hired someone else they would have to get up to speed with everything that has happened from Day 1 through now,” she said. “So, it could end up equaling the same amount [as Cozen O’Connor]. [A different attorney hired by the town] may even have to contact Cozen O’Connor about it and Cozen O’Connor may charge to speak with them. To me this was cleaner and hopefully less time-consuming.”
But Schmitt was not convinced. He said while the Article 78 case is related to the case for which Cozen O’Connor was first hired, this is a different set of circumstances.
“The scope of what Cozen O’Connor was going to do was very specific. This is something totally different,” he said. “It’s changing the scope of services that is being provided to us. I would have preferred to see a proposal from [Cozen O’Connor] in writing identifying what the cost will be [to defend against the Article 78] because right now we are just giving them the work, and we don’t know what it’s going to cost.”
Schmitt said he expressed that sentiment in a recent executive session, specifically asking that RFPs be sent out seeking bids from other law firms.
Councilman John Lupinacci countered by saying those were Schmitt’s original sentiments, but that he later changed his mind and approved the Cozen O’Connor hiring, which triggered an angry debate between the two.
“You said that [you were opposed to it] in the beginning, but then you said you were fine with giving it to Cozen O’Connor,” Lupinacci said to the supervisor. “That is how we concluded that conversation.”
“I wasn’t happy with it. I was very adamant we should get a proposal,” Schmitt said. “I don’t have a law firm that I particularly like to give work to. You guys do have a law firm you particularly want to give work to. And that was Cozen O’Connor and I disagreed with you.
“I know there are three votes to do this, but I am personally against it because it’s going to cost a boatload more money to defend the Article 78,” Schmitt continued. “It’s money we could be spending elsewhere. I think it’s foolish we are going to a Manhattan law firm. It doesn’t matter what I said last week, I changed my mind.”
“You don’t like me bringing up [you changed your mind] because you are contradicting yourself,” Lupinacci retorted.
“No, you like bringing it up because you like to make other people look bad,” Schmitt responded.
“Because you changed your mind, now you are trying to make us (the Town Board) look bad,” Lupinacci said.
“I’m not trying to make you look bad; you just look bad doing this,” Schmitt said. “This is wrong that you are giving the work to Cozen O’Connor. Do it the right way—RFP it. Get proposals. You are micromanaging all the time. Anything I try to do, you question the heck out of it.”
Schmitt then implored the board to delay voting on the resolution to hire Cozen O’Connor so that RFPs could be sent out. For her part, McDonough argued that wasn’t possible because there is a deadline for responding to Article 78s, so the board must act immediately.
However, town attorney Greg Folchetti said that while there is a 30-day time limit to respond, that can be expanded if both parties consent.
“I think the consent of the parties wouldn’t be a problem [if it will] save the taxpayers money,” Barile said.
Nonetheless, the board moved to pass the resolution 3-1, with Schmitt voting no and Barile abstaining.
During the public comment portion of the meeting, several residents spoke in support of Schmitt’s desire to ask for requests for proposals from an outside law firm.
“I want to commend Supervisor Schmitt for standing tall here tonight against a push from other board members who are funneling work toward associates who are not competitively bidding,” Peter Gephardt said.
Carmel hamlet resident John Butler said that because the town already hired Cozen O’Connor to defend itself against the DEP citation is the very reason it should not hire it for the Article 78 case.
“I’ve never seen anything like this before. Just the very fact that this law firm (Cozen O’Connor) is engaged by the town in a separate investigation of what I think is the same matter, automatically should bifurcate the issue from one law firm to another,” he said.
Butler also questioned how a high-end law firm such as Cozen O’Connor even got on the Town Board’s radar.
“[What] is the genesis of the love affair with Cozen O’Connor?” he asked. “I know them from the insurance business for decades and how a white-shoe law firm is here and being hired is a real mystery to me. I think the entire town deserves that explanation.”
The board offered no explanation.