A view of a closed-door Red Bank council executive session in 2019. (Photo by John T. Ward. Click to enlarge.)
By JOHN T. WARD
With one Red Bank council member suing two others and the municipal government itself, who gets to be the “borough” in attorney-client discussions?
It’s complicated.
Councilmembers Kathy Horgan, Ed Zipprich and Michael Ballard in 2018. (Photo by John T. Ward. Click to enlarge.)
The borough government is a defendant in an effort to oust Councilwoman Angela Mirandi from office following her February 9 appointment to fill the seat vacated in January by Erik Yngstrom.
At a special session announced Thursday afternoon, the council – or half of it, at most – is scheduled to meet behind closed doors Friday at 4 p.m. to name two lawyers: one to serve as “conflict counsel,” representing the borough in lieu of borough Attorney Greg Cannon; and the other to defend Mirandi.
The action comes in advance of a hearing scheduled for Monday morning by Superior Court Judge David Bauman, who may rule on a request that Mirandi be unseated immediately.
In the lawsuit filed February 22, Councilwoman Kathy Horgan and Democratic party secretary Kate Okeson allege Mirandi’s appointment was tainted because they had been excluded as members from the organization’s discussion of possible nominees.
Named as defendants are the borough; Mirandi; the local Democratic organization; and Councilman Ed Zipprich, in his role as party chairman.
So who gets to decide on the borough’s legal strategy? Normally, that’s the entire six-member council, which goes into a closed-door “executive session” allowed under New Jersey law to discuss litigation, personnel and other select topics.
But with Horgan, Mirandi and Zipprich “conflicted out” from participating by virtue of their stakes in the lawsuit, that leaves three council members eligible – Michael Ballard, Jacqueline Sturdivant and Kate Triggiano – Cannon told redbankgreen Wednesday. Mayor Pasquale Menna may also participate, but only votes to break ties.
Both Ballard and Triggiano, however, have strong, and opposing allegiances delineating a bitter split within the all-Democratic council. Ballard has been closely allied with Zipprich, and Triggiano with Horgan.
While she’s not a party to the suit, Triggiano is quoted in it for public statements she made in support of Horgan and Okeson’s contention that not all county committee members had a voice in the selection of candidates.
During the February 9 council session at which Mirandi was appointed, both Horgan and Triggiano said they had not received the résumés of any of the three proposed replacements.
That in itself is not enough to disqualify Triggiano, Cannon said via email.
“What others may allege or claim about an individual’s position cannot serve as the basis of that individual’s conflict,” he said. “If Councilwoman Triggiano joined the lawsuit as a party or intervened as an interested party, then the foregoing analysis would obviously change. To date, I am not aware of Councilwoman Triggiano taking any legal action or position that would give rise to a conflict of interest.”
Ballard appeared to justify the exclusion of Horgan and Okeson from the party’s selection process because, he said, he and Zipprich had been “excluded from the decision to abruptly terminate the search for an administrator… So this is not the first time you have excluded Ed and I, so I don’t understand your concern now.”
Horgan voted no on Mirandi’s appointment to serve through the end of 2022, and Triggiano abstained, because, she said, “I really don’t have a say in who is nominated, and we all know that.”
Sturdivant was elected in November with support from the Democratic organization, Zipprich and Ballard, and has voted in step with Zipprich and Ballard since joining the council January 1.
What all those ties mean to the borough’s role in the lawsuit may not be known anytime soon. Minutes of closed-door sessions are not made public while litigation is pending.
The borough has not yet formally responded to the complaint, in part because it didn’t yet have a lawyer to represent it. Cannon himself is conflicted out, he told Bauman in a hearing Wednesday.
“There’s a significant risk that my representation of one or more of the clients here would materially limit my responsibilities to the others as the borough attorney representing all of them,” he said.
He also told Bauman the borough is seeking to have the Monmouth County Joint Insurance Fund designate alternate representation.
The matter could be further muddied by an allegation in the complaint that depicts the borough as having “acted” to fill the vacant seat after Zipprich “unlawfully and invalidly presented” three names.
The assertion was made in a court filing earlier this month plaintiffs’ attorney Thaddeus R. Maciag. Through an attorney, Zipprich and the party have maintained that Mirandi’s appointment was lawful and should stand.
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