Board Debates Renewal Of Counsel Contract
By Stephanie Mariel Petrellese

The vote was close and the debate was lengthy and intense, but near the end of their April 19th meeting the Garden City Board of Trustees approved renewal of a one-year contract with Cullen & Dykman to serve as Village counsel.

The mayor annually appoints, and the Board ratifies, village counsel for three areas: general counsel, labor and litigation , and serving as prosecutor in the Justice Court. Cullen & Dykman have been village counsel for Garden City for decades. The Board voted 5 to 3 (Lamberti, Watras and Brudie against) to renew Cullen & Dykman's contract for all three areas.

The most outspoken critic of the law firm, and specifically counsel Gerard Fishberg, was Trustee Thomas Lamberti. He worked for Cullen & Dykman for 30 years and left in 1995.

Lamberti recommended that the functions of general counsel and labor counsel be handled by separate firms. He also said the Village should not use one firm to handle all matters of litigation but should be open to finding a firm that specializes in the particular issue being litigated. Even though Mayor Peter Bee voted to approve the contract, he said in matters of major litigation, Cullen & Dykman has in the past and will continue to help the Village find counsel that specializes in the particular issue.

In his speech focusing on why the contract should not be renewed, Lamberti accused the firm of not meeting the criteria that he believes to be required of a village counsel. He said counsel should represent all residents and act in their best interest; should implement policy in a lawful manner, and not make policy; and should be forthright and honest.

Lamberti then continued with specific examples of how the firm missed the mark based on his criteria. During labor negotiations with the Civil Service Employees Association (CSEA), the Board of Trustees instructed counsel to make a recommendation on an issue in a memorandum. The Board never received the memo, and Lamberti later discovered that Fishberg made the decision on his own. "I was astonished," said Lamberti. He added that the term of contract and wage increases were never discussed with the Board so now they are facing a contract proposal with a term of six years, the longest they have ever seen.

Mr. Fishberg told The Garden City News that it was generally understood that Village Administrator Robert Schoelle and Fishberg would make certain decisions during labor negotiations based on prior discussions and dealings with the Board, knowing that everything would have to be ratified by the Board. It was also known that the Village wanted longer contracts so they would not have to go through the negotiation process every five years. Also, the trustees never directed that Fishberg should give them a recommendation via memo.

In another example, Lamberti said documents were mistakenly disclosed by counsel during a matter of litigation. According to Lamberti, Cullen & Dykman acknowledged that they made a mistake but charged the Village $20,000 to correct the error. Gerard Lundquist, the mayor at the time, was able to get the firm to reduce the fee by $10,000. However, Lamberti said he personally was not happy with that resolution and wanted the firm to correct the error at their own expense.

Peter Mastaglio of Cullen and Dykman told The Garden City News that the lawsuit in question involved the claim by plaintiffs, Thomas Poole, Peter Negri and James Edmund Keating, against the Village of Garden City, Board and consultant Karen Backus in January 2006, claiming that the expenditure of public funds to market the sale or lease of the St. Paul's Historic Main Building to a private developer was illegal.

The lawsuit also stated that if it was deemed illegal, Backus would be required to repay any money received from the Village. The plaintiffs sought a permanent injunction from making any further expenditures of public money to "market" the sale of the building to private commercial developers.

Plaintiffs' lawsuit was ultimately unsuccessful. Cullen and Dykman represented the Village and Board, but Backus had separate counsel, a former Town Attorney in Suffolk County who Cullen and Dykman had recommended.

That attorney, not Cullen and Dykman, mistakenly allowed documents to be released. When the Village learned of the disclosure, Cullen and Dykman successfully moved to seal the record. According to Mr. Mastaglio, the added services resulting from that contested motion approximated $10,000.00, and not $20,000.00 as Mr. Lamberti claimed. When certain trustees expressed concern about the time expenditure, even though it was caused by separate counsel, the firm agreed to reduce its charges in successfully defending the action by $10,000.00.

For his third example, Lamberti cited the relocation of the Kanner home on Tenth Street. In August, 2002, the Village entered into a contract to acquire the property and relocate the home onto the Village-owned lot next to it. At the time, the Village did not get any appraisals so they did not know the value of the home they were relocating and the value of the lot they were going to place it on. Eight months after the contract was signed, appraisals were received and the home was valued at $950,000 and the lot at $750,000.

Lamberti said it cost the Village $900,000 to move the home and pay for ancillary expenses. In the end, it cost the Village $1,650,000 for property worth $950,000. Lamberti blamed village counsel for entering into a contract without an appraisal. "That's just bad lawyering," he said.

Mr. Fishberg advised that the Village never purchased the house; this was a deal whereby the Village swapped land, of almost equal value, with the Kanner family. The Village agreed to pay for the costs of relocating the house, which in the end totaled $900,000, not $1,650,000, as Lamberti asserted. The Board had prior estimates in hand as to the moving and ancillary costs.

Fishberg, who quietly sat through Lamberti's speech, acknowledged that Lamberti was largely responsible for hiring him at Cullen &Dykman and supporting his partnership in 1979. "My silence should not be taken as agreement with his criticisms," said Fishberg. "Indeed, I have a contrary view on each of the three points. More importantly, I am quite disturbed by the suggestion that somehow I acted unethically."

There is some dispute as to whether Lamberti actually used the word "unethical" at the meeting. Lamberti told The Garden City News after the meeting that he was commenting on Fishberg's competency, not his ethics, and that he never used the word. Trustee Rothschild said during the meeting that Lamberti owed Fishberg an apology for calling him unethical.

Before taking a vote, trustees explained their positions. Trustees John Watras and Donald Brudie voted against renewal. Watras said he was disappointed in certain outcomes and saw the need for more specialized counsel.

Trustee Brudie also said more specialized counsel was needed for certain issues including the ACORN lawsuit. He did not believe the firm should have charged the Village when they made an error, and he was also concerned about the charges for depositions in the ACORN suit, which he claims totals more than $100,000.

Mayor Bee and Trustees Mauk, Episcopia, Rothschild and Lundquist voted in favor of renewing the contract. Mayor Bee said that "although his [Lamberti's] participation in that firm ended, and ultimately maybe even some negative consequences that came about as a result of that separation from Cullen & Dykman, he himself knows that for many, many years that firm has given good and loyal service to this Village. He has now concluded that he does not feel that that service is any longer appropriate for this Village and has mentioned a couple of reasons why he feels that way. That is his prerogative."

Lamberti told The Garden City News that there were no negative consequences. However, the News learned that in December of 2001, Lamberti sued Cullen & Dykman over how much money he was to be paid upon his resignation. The lawsuit was settled in September 2003.

Deputy Mayor John Mauk acknowledged that there have been isolated problems and issues with counsel and improvement is needed, but overall their advice has been beneficial and useful. Specialized counsel for matters of litigation and labor should be considered.

Trustee Nicholas Episcopia said the law firm has always called him back promptly and cited their success in the recent lawsuit against the Committee to Save St. Paul's.

Trustee Gerard Lundquist also acknowledged that there have been a number of successes and the firm has been upfront and responsive. He said the Village should look into the possibility of hiring a separate litigation lawyer.

Trustee Robert Rothschild said the Kanner house move was the "biggest fiasco in years." He said the mayor at the time should be blamed, and not counsel.

Trustee Brudie responded that counsel is under no obligation to blindly follow the mayor and Board's instruction, especially if it is unethical.

As the meeting approached 11 p.m., trustees and the public were growing weary and impatient. "I hope we don't deteriorate, and allow this Board to deteriorate, to the point that it was under a previous mayor, which I think all of us who were on the Board at that time consider to be very unfortunate," said Mauk.

There were also a few moments of tension when Trustee Lamberti asked Mayor Bee to apologize to him for remarks that he felt insinuated that he had a personal problem with Fishberg.

"I did note that you were a partner in this firm for many a year and had confidence in this firm," replied Bee. "Your opinion of this firm has changed; mine has not, and that was the thrust of my remarks...I think you are at all times striving to do what you believe is right. Let me say that clearly and unequivocally. I believe that Trustee Lamberti is at all times, and on this issue, is striving to do what he believes is the right thing to do and exercising what he believes is his fiduciary responsibility to this Board and to the public."