Bickering, accusations continue to fly in Wildwood

Troiano take leave as firefighter

Nov, 11-2009 4:52 pm

By Carole Mattessich
Staff Writer

WILDWOOD – The most recent court case authorized by Mayor Ernie Troiano and Commissioner Bill Davenport challenging Commissioner Gary DeMarzo’s ability to serve simultaneously as a commissioner and a police officer on unpaid leave may be causing some unintended consequences.

For one thing, papers filed with the Appellate Division on behalf of the city this Monday, Nov. 9, revealed that Troiano has voluntarily stepped down from his position as batallion chief and treasurer of the Holly Beach Volunteer Fire Company, due to the potential incompatibility of that position with his role as commissioner.

In addition, the case before the Appellate Division may be blossoming to include a challenge to DeMarzo’s recent hiring of an attorney as his “Confidential Aide,” and a fight over who should pay DeMarzo’s legal bills in matters in which his two fellow commissioners authorize court action against him.

At presstime this Tuesday, Nov. 10, parties and their attorneys were on their way to Trenton to argue the appeal, despite a last-minute request by DeMarzo’s attorney, Samuel Lashman, for an emergency adjournment that would allow the parties to brief issues arising in recent days.

Typically, by the time a case reaches an appeals court the “record” and issues are locked in, but little is typical about this litigation.

It began when, within days of taking office in 2007, DeMarzo was served with a lawsuit authorized by his fellow commissioners Troiano and Davenport, challenging DeMarzo’s ability to sit as a commissioner at the same time he served as a city police officer.

In July 2007, Superior Court Judge Joseph Visalli ruled that DeMarzo could serve as a commissioner as long as he was on unpaid leave of absence as a cop and refrained from voting on matters relating to the police, collective bargaining, the municipal judge, prosecutor and public defender.

Fast forward a year and a half, a period marked by cantankerous – and, at times, bitterly divided – relations among the three commissioners, dramatic public efforts to recall Troiano and Davenport, and run-ins between DeMarzo and certain police officials who, according to DeMarzo, act under the control and influence of Davenport.

In February of this year, Troiano and Davenport authorized the re-hiring of attorney Matthew Priore, of Clifton, N.J., to file a new court challenge that presents essentially the same issues as those before Judge Visalli in mid-2007. (Visalli retired from the bench in the interim.)

In the new action, heard by Superior Court Judge Valerie Armstrong, Priore asserted that the city was “compelled to file a motion to enforce litigant’s rights.”

Priore argued that DeMarzo’s jobs are fatally incompatible, even if he’s on unpaid leave of absence; that the court should require DeMarzo to dismiss two litigations involving the city; and that the court should “expand” the Visalli Order to provide that DeMarzo is barred from voting on the terms of employment, or reappointment, of City Solicitor Marcus Karavan.

The two DeMarzo suits were filed before he became a commissioner. The city agreed to settle one, involving bulkhead rights at a property DeMarzo owns, for $8,000, but withheld payment after DeMarzo became a commissioner. The other involves civil rights and CEPA claims alleging retaliation by city officials and ranking police officers.

With respect to Karavan, the city’s recent briefing paints an adversarial relationship between him and DeMarzo, and notes that Visalli’s 2007 Order nevertheless directed Karavan to screen agendas before commissioners’ meetings and to advise DeMarzo of any conflicts requiring his recusal.

In late April, Armstrong denied the city’s requests. DeMarzo was not ousted, Visalli’s Order was not expanded, and, while the court found it appropriate that DeMarzo’s two lawsuits be dismissed, it was with the proviso that DeMarzo may reactivate them at such time as he no longer serves as a commissioner.

The city’s recent appeal asks the appellate court to alter both Armstrong’s April 2009 determination and Visalli’s July 2007 determination.

On Oct. 7, Priore submitted a 65-page brief on the city’s behalf, asserting that Visalli’s Order “is simply not working.”

Among other items, the city’s brief explores policy reasons why some municipal offices may be fatally incompatible. Ironically, the arguments – if accepted by the appellate court – would appear to cover not only DeMarzo, but also Priore’s own client, Troiano, who serves both as a commissioner and a volunteer fire company official.

Or so Lashman argued in correspondence with Priore and Karavan, and in DeMarzo’s reply brief, which also asserted that DeMarzo’s leave of absence cures any potential incompatibility. The reply brief also argued for a narrower interpretation of the matters upon which DeMarzo is barred from voting.

Lashman had corresponded with Priore and Karavan since being hired as a “Confidential Aide” by DeMarzo in early October.

That correspondence, as well as Lashman’s hiring, led to dramatic developments over the past week.

Last Thursday, Nov. 5, Lashman filed his emergent motion requesting an adjournment so that the parties could brief two matters: the compatibility of Troiano’s two roles, and a challenge that the city made in recent weeks to Lashman’s very representation of DeMarzo.

Papers filed in support of the motion reveal that after getting up to speed on the litigation, Lashman recommended that DeMarzo file a declaratory judgment complaint as to Troiano’s alleged conflicts and “other matters regarding undue influence and misconduct by other officials of the City of Wildwood relating to this case.”

But on Oct. 26, the papers state, a letter signed by Troiano was sent to the Bar Association’s District 1 Ethics Committee, asserting that Lashman’s representation of DeMarzo is improper. The ethics committee subsequently declined to review the matter because it challenges the activity of an attorney actively litigating an ongoing case.

According to the recent filing, Troiano’s ethics complaint was preceded by correspondence from Karavan to Lashman, cautioning Lashman not to use city stationary or other resources if he was representing DeMarzo in “personal” matters, and asserting that it was unethical and improper for Lashman to use municipal resources and list city hall as his address in preparing DeMarzo’s appeal papers.

DeMarzo’s motion charges that the entire course of litigation – beginning with the complaint filed with Visalli just days after DeMarzo took office – essentially is “an attempt by the two other Commissioners to remove Commissioner DeMarzo from office,” and that DeMarzo “is entitled to representation from the City of Wildwood since the appeal concerns actions arising out of his duties as commissioner.”

“This case is not about incompatibility of (DeMarzo’s) offices,” the new papers argue. “Rather, the ethics complaint highlights the fact that two commissioners are attempting to vote the third out of office by pursuing litigation paid for by the City of Wildwood against him .…”

Throughout the proceedings, DeMarzo’s brief asserts, Priore’s work has been done on the taxpayer’s dime while DeMarzo was left to fend for himself on legal arrangements. Lashman’s recent efforts, he asserts, seek “to separate the issues and stop the interference by the Municipal Attorney and other Commissioners with Commissioner DeMarzo’s official duties, and resolve conflicts that have arisen or liabilities that have arisen due to (Troiano and Davenport’s) own actions.”

On behalf of the city, Priore responded to the recent motion by letter brief dated Nov. 9, arguing that the appellate court should not render an advisory opinion as to whether an attorney could ethically represent his client, and is not in a position to direct the city to pay counsel fees.

Prior also dropped the bombshell that “Troiano has taken a leave of absence from his volunteer position with the Holly Beach Volunteer Fire Department.”

Interviewed Monday, Troiano acknowledged that he has “put in a letter” resigning from his official duties “until there is something decided.”

“It’s just amazing that someone would come after me for volunteering services as a fireman,” he said.

Troiano believes strongly that his situation is different from DeMarzo’s.

“When that whistle blows, I’m a fireman,” Troiano said. “Explain to me how volunteering is anywhere the same as his situation. Connie Johnson is Chief of the Wildwood Fire Department, and he makes the budget. The line items for volunteers are a whopping $11,500, of which $200 is paid per man who has met his qualifications, for a clothing allowance – for destruction and cleaning of your clothes after a fire.

“I’ve being doing this for 36 and a half years, and I’ve served as treasurer – another non-paying position – for 30 years,” Troiano continued. “You can’t compare me to someone who’s making $80,000.”

(Although Troiano was referring to a police officer’s salary, he acknowledged that DeMarzo is on unpaid leave.)

“I understand what’s going on – he was elected to do one thing, to try to take me out,” Troiano charged.

DeMarzo denied there was any ulterior motive in his election.

“I was elected by the people to do the best job I can,” he said Tuesday, “and that involves solving some long-standing problems with city government. Voters don’t send veiled messages; if they wanted to take him out, the people would have done that themselves.”