Legal fees again an issue in Brockport

At the May 1 meeting, Village of Brockport officials were asked to vote "blindly" on an attorney to represent three officials embroiled in a lawsuit regarding the revocation of the police chief's contract.

"This is another example of this not being an open government," Trustee Carrie Maziarz said when asked to vote on a motion to hire an attorney to represent Mayor Mort Wexler and Trustees Maria Castaneda and Mary Jo Nayman in pending litigation. "We don't have a name, an hourly rate or a binding contract. I'm not comfortable with this."

Maziarz and Trustee David Wagenhauser were told that time was of the essence in the choosing of an attorney to represent the three village officials in the litigation over the police chief's contract. "We only have until May 25 or 26 to get a response," Wexler said. "I trust our village attorney's judgment and since we are involved in this lawsuit we need to make a decision before the May 15 meeting."

"Everyone in good conscience can vote on this without having any information?" Maziarz asked.

The only information passed along to board members at the meeting was that the legal firm chosen by village attorney Thomas Calandra to represent the officials was from the Rochester firm of Woods, Oviatt and Gilman.

The Village of Brockport, Wexler, Castaneda and Nayman were named in a lawsuit by the Brockport Police Chief, Daniel Varrenti. The suit was filed as a result of the chief's contract having been disaffirmed by the board in August.

The court papers filed stated Varrenti has suffered anxiety, stress and lost compensatory benefits - the combination has affected his health and caused emotional suffering. He is seeking unspecified punitive damages. The 211 waiver that the mayor refused to sign is also mentioned in the suit. The waiver, required by New York state, would have allowed Varrenti to continue collecting retirement benefits while working in the village as the chief. The failure of the village to sign the waiver has amounted to a loss of $47,000 per year for Varrenti.

In August, village officials voted to revoke Varrenti's contract as a way to cut costs. Wexler, Castaneda and Nayman voted to disaffirm. Trustees Carrie Maziarz and David Wagenhauser voted no.

In October, the board presented Varrenti a contract with changed terms and conditions of employment, including reduction in vacation days and requiring the chief to pay for his own health insurance.

Wexler has maintained that the disaffirming of the contract is no reflection on Varrenti's performance and is not a personal vendetta. Wexler was on the board that approved the 10-year contract for the chief. Following an opinion from the attorney general that a board is not bound by a previous administration's contract, Wexler and the two trustees voted to disaffirm.

"We spoke at a workshop about apportionment of the legal fees, once it became clear that the insurance company was probably not going to pick up the tab for the lawsuit with the police chief," Wagenhauser said, "and now we are going to have to 'lawyer up,' on these claims. In the intentional tort claim against the mayor, I don't think the village should pay the defense of that claim if it is found to have any merit."

Wagenhauser said the intentional tort claim in the suit filed by Chief Daniel Varrenti against Castaneda, Nayman and Wexler should be separate from the contract claims. "In the last claim in the suit, the tort claim, I feel the mayor should be responsible for it. I am not saying the claim has merit but if it does it shows that someone went outside the scope of their duties and the village theoretically shouldn't be liable for damages or the defense of the claim."

Wagenhauser requested that until such time as the claim against the mayor was found to be with, or without merit, that all conversations pertaining to that claim specifically be accounted for separately. "It's a budgetary issue that I think should be set aside from the breach of contract issues," he said. "Normally an intentional tort is considered outside of the scope of official duties."

Castaneda said there needed to be further investigation of the issue to see if it could be covered. "The insurance company denied the breach of contract clause exclusion but we need to investigate our options," she said.

"I was told by an attorney that the three board members are indemnified under the public officers law and that, by law, we have to be protected," Wexler said. "We were acting in our official capacity."

Wexler said if he is directed by the court, then legal fees would certainly be paid for separately.

May 7, 2006