Thursday, May 15, 2014
HUNTINGTON TOWN LOSES APPEAL IN PERKS/YULE COURT DECISION
TOWN MUST PAY PERKS' ATTORNEY MILLIONS IN LEGAL FEES
Decided on May 7, 2014
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
PETER B. SKELOS, J.P.
LEONARD B. AUSTIN
SANDRA L. SGROI
HECTOR D. LASALLE, JJ.
(Index No. 3857/10)
[*1]In the Matter of Local 342, Long Island Public Service Employees, etc., respondent,
Town of Huntington, appellant.
Bond, Schoeneck & King, PLLC, Garden City, N.Y. (James P.
Clark and Hilary L. Moreira of counsel), for appellant.
Edward J. Yule, LLC, Northport, N.Y., for respondent.
DECISION & ORDER
In a proceeding pursuant to CPLR 7511 to confirm an arbitration award, the Town of Huntington appeals from an order of the Supreme Court, Suffolk County (Farneti, J.), dated May 9, 2012, which, inter alia, granted the petition.
ORDERED that the order is affirmed, with costs.
In the arbitration award at issue, the arbitrator determined that the Town of Huntington breached a collective bargaining agreement by failing to pay certain legal fees on behalf of the grievant. The Supreme Court properly concluded that the arbitrator's determination did not clearly violate a strong public policy, was not totally or completely irrational, and did not manifestly exceed a specific, enumerated limitation on the arbitrator's power (see Matter of Erin Constr. & Dev. Co., Inc. v Meltzer, 58 AD3d 729). Although the payment of a public employee's legal fees "would constitute an impermissible donation from the public purse in instances where there is no prior legal obligation on the part of the State or a municipality to provide reimbursement, the reimbursement is proper and considered additional remuneration where there is a prior legal obligation" (Matter of Security & Law Enforcement Empls., Dist. Council 82 [County of Albany], 96 AD2d 976, 978, affd 61 NY2d 965). In this instance, the relevant collective bargaining agreement expressly created a prior legal obligation on the part of the Town to pay the subject legal fees incurred by the grievant (see Matter of Security & Law Enforcement Empls., Dist. Council 82 [County of Albany], 96 AD2d 976; cf. Zimmer v Town of Brookhaven, 247 AD2d 109).
The Town's remaining contentions are without merit.
Accordingly, the Supreme Court properly granted the petition to confirm the arbitration award.
SKELOS, J.P., AUSTIN, SGROI and LASALLE, JJ., concur.
Clerk of the Court
Sunday, March 23, 2014
WATER and AQUIFER TESTING NECESSARY
In Nassau and Suffolk Environmentalists and Legislators Work Together
Recently, a group of environmentalists met in Oyster Bay and they were joined in their effort by a Nassau County politician calling for the restoration of funding to a stalled program critical for monitoring the region's groundwater aquifer system. The program's funding was stopped in 2010 and the United States Geological Survey was forced to interrupt collection of data about groundwater levels, salt intrusion, storm related effects on shoreline erosion and stream flow monitoring, among other things. This data can be of critical importance to water suppliers and others. It was funded temporarily last year by the Nassau Suffolk Water Commissioner's Association, but needs a reliable source of funding as the holes in the data are problematic. There is an effort underway to fully restore the funding and for the County legislature to approve a new contract negotiated by the Nassau County Department of Public Works with the USGS for around $140,000 a year. Legis. David Denenberg (D-Merrick) joined with civic and environmental groups calling for the immediate restoration of the funding.
Newsday's Jennifer Barrios wrote an article related to the funding titled "Nassau Urged to Fund Aquifer Tests". Dr. Carmine Vasile, a Patchogue resident with a doctoral degree in electrophysics, who was a former Grumman Inventor of the Year, (1992) responded to the article and sent out this comment to several media, environmental and political venues. Dr. Vasile has been a persistent and vocal critic of the the Suffolk County Water Authority, the Department of Health and other New York governmental agencies he asserts are not testing the water for certain known critical and deadly elements...including radon and other radiologicals and their long-lived radioactive daughters.
Radon is the second leading cause of cancer, next to smoking and is naturally present in the ground in certain varied concentrations, depending upon the location. In 1976 the Environmental Protection Agency enacted what is known as the Radionuclides Rule under the aegis of the Safe Drinking Water Act in order to improve public health and lower the risks of cancers due to exposure to radon and radionuclides and it has been revised since then. However, no MCL or Maximum Contamination Level has yet been set for radon or radionuclides in New York State, so there is no way to know whether or not the levels of exposure from the waterborne radionuclides exceed safe standards or not.
They haven't made the standards...so how could any level exceed non-existent standards?
Dr. Vasile's Unedited Comments Sent to Freelance Investigations:
If this program is approved we will know how deep the aquifers are, but not the concentrations of cancer-causing toxins. Since 1976, the EPA has never enforced its Radionuclides Rule and failed to set an MCL for Radon, the 2nd leading cause of lung cancer after smoking.
In fact the EPA promulgated the Radionuclides Rule under the Safe Drinking Water Act (SDWA) in 1976 and revised it in December of 2000. The revised rule became law on December 8, 2003. The Radionuclide Rule established a mandate to begin initial monitoring under state regulated monitoring plans on December 8, 2003 and to complete initial monitoring by December 31, 2007. United States Community Water Systems (CWSs)—systems serving over 15 homes or 25 persons—are regulated by the rule.
The purpose of the Radionuclide Rule is to improve public health by reducing the risk of various cancers caused by exposure to waterborne radionuclides. The Radionuclide Rule creates four categories of regulated radionuclide contaminants along with their mandatory Maximum Contaminant Levels (MCL) and recommended Maximum Contaminant Level Goals (MCLG). The MCLG is the level at which no toxicity exists. It is always zero. (Dr. Carmine Vasile Ph.D. Electrophysics )
The Radionuclides Rule....A Quick Reference Guide
The following is some basic information about radionuclides and the radionuclides rule taken directly from the Environmental Protection Agency Website.
This information was taken directly and without editing from the EPA Website:
To view it directly go to the following link.
66 FR 76708 December 7, 2000 Vol. 65, No. 236
Reducing the exposure to radionuclides in drinking water will reduce the risk of cancer. This rule will also improve public health protection by reducing exposure to all radionuclides.
The rule retains the existing MCLs for combined radium-226 and radium-228, gross alpha particle radioactivity, and beta particle and photon activity. The rule regulates uranium for the first time.
Community water systems, all size categories.
*This document provides a summary of federal drinking water requirements; to ensure full compliance, please consult the federal regulations at 40 CFR 141 and any approved state requirements.
Public Health Benefits
Implementation of the Radionuclides Rule will result in . . .
Reduced uranium exposure for 620,000 persons, protection from toxic kidney effects of uranium, and a reduced risk of cancer.
Estimated impacts of the Radionuclides Rule include . . .
Annual compliance costs of $81 million.
Only 795 systems will have to install treatment.
4mrem/yr MCL 0
Gross alpha particle
15 pCi/L MCL 0
Combined radium- 226/228
5 pCi/L MCL 0
Uranium MCL 0
**A total of 168 individual beta particle and photon emitters may be used to calculate compliance with the MCL.
Critical Deadlines & Requirements
For Drinking Water Systems
June 2000 - December 8, 2003
When allowed by the State, data collected between these dates may be eligible for use as grandfathered data (excluding beta particle and photon emitters).
December 8, 2003
Systems begin initial monitoring under State-specified monitoring plan unless the State permits use of grandfathered data.
December 31, 2007
All systems must complete initial monitoring.
December 2000 - December 2003
States work with systems to establish monitoring schedules.
December 8, 2000
States should begin to update vulnerability assessments for beta photon and particle emitters and notify systems of monitoring requirements.
EPA meets and works with States to explain new rules and requirements and to initiate adoption and implementation activities.
December 8, 2002
State submits primacy revision application to EPA. (EPA approves within 90 days.)
Gross Alpha, Combined Radium-226/228, and Uranium (1)
Beta Particle and Photon Radioactivity (1)
Four consecutive quarters of monitoring.
No monitoring required for most CWSs. Vulnerable CWSs (2) must sample for: • Gross beta: quarterly samples. • Tritium and Strontium-90: annual samples.
If the average of the initial monitoring results for each contaminant is below the detection limit: One sample every 9 years.
If the average of the initial monitoring results for each contaminant is greater than or equal to the detection limit, but less than or equal to one-half the MCL: One sample every 6 years.
If the average of the initial monitoring results for each contaminant is greater than one-half the MCL, but less than or equal to the MCL: One sample every 3 years.
If the running annual average of the gross beta particle activity minus the naturally occurring potassium-40 activity is less than or equal to 50 pCi/L: One sample every 3 years.
A system with an entry point result above the MCL must return to quarterly sampling until 4 consecutive quarterly samples are below the MCL.
If gross beta particle activity minus the naturally occurring potassium-40 activity exceeds 50 pCi/L, the system must: • Speciate as required by the State.
• Sample at the initial monitoring frequency.
(1) All samples must be collected at each entry point to the distribution system. (2) The rule also contains requirements for CWSs using waters contaminated by effluents from nuclear facilities.
Grandfathering of Data
When allowed by the State, data collected between June, 2000 and December 8, 2003 may be used to satisfy the initial monitoring requirements if samples have been collected from:
► ► ►
Each entry point to the distribution system (EPTDS). The distribution system, provided the system has a single EPTDS.
The distribution system, provided the State makes a written justification explaining why the sample is representative of all EPTDS.
Saturday, March 15, 2014
Frank Petrone's Taxpayer Funded Political Theater: ACT FOUR: Scene Five...The Scarpati-Reilly Deposition Part 3
Last month Freelance Investigations published an Exclusive Article revealing that Governor Andrew Cuomo has requested the New York State Department of Environmental Conservation (DEC) look into serious allegations made by a former Town of Huntington Harbormaster and Hazardous Materials Coordinator against some former and some current Town Board members of the Town of Huntington.
William Townsend Perks has been raising red flags for over fifteen years that radiated scrap or "grizzly" was being trucked and burned in the Town of Huntington waste-to-energy incinerator (then Ogden Martin) now known as the Covanta Incinerator. It has cost him and his family dearly. To catch some of you up with the story...
Mr. Perks supplied Freelance Investigations with evidence that indicates truckloads of radiated scrap (grizzly) were burned and radiated waste was trucked illegally on neighborhood streets perhaps for over a decade. This was done without any permits or notification to proper authorities--for as far back as 1994 and through at least 2003. The State DEC upon receiving the letter from Governor Cuomo, decided the matter was serious enough to open a criminal investigation into the allegations sent to them by the Governor's Office. (To see full article press the link: http://freelance-documentdrivennews.blogspot.com/2014/02/governor-cuomo-asks-state-dec-to.html)
Mr. Perks has been labelled overly litigious by the Town, but he insists he was only trying to protect himself and the employees who had an absolute right to know what they were being exposed to because New York State has very strict and specific Right-To-Know Laws, but also because these people were being exposed to radiated materials in the course of doing their jobs for the Town. Then they went home in the clothes that they had been exposed to radiation in. They wore them home to be washed in the same washing machines with the clothes of their babies and wives and children and grandparents and other family members, potentially exposing them as well. Radiation is colorless, odorless and tasteless...without a radiation detector, there is no way to know if radiation is present or how much exposure there may be.
The Town has refused for years to pay for Mr. Perks' legal fees when he was falsely accused of an assault in a Town Board Resolution. The resolution was passed in order to spend nearly $100,000 dollars to hire a Fact-Finder to investigate the alleged assault by Mr. Perks of a Town Councilwoman., Susan Scarpati-Reilly.
According to Supervisor, Frank Petrone, they did so because there were multiple media reports that had already exposed the alleged assault. The problem is there were no media reports about an assault at that time. However, the press had a field day with the "Horny Harbormaster and the Town Councilwoman" stories-- for years after that. Almost all of the news outlets ignored the serious issues about the radiation and were only focusing on the sleazy alleged affair between the two and the myriad of cross-accusations and lawsuits they were able to exploit to sell papers.
The Town refuses to pay Mr. Perks' legal fees to this day...continuing to spend millions in order not to have to pay what originally was a bill for about $70,000 submitted by his attorney, Mr. Edward Yule. That original legal bill has now burgeoned over these many years of forced litigation by the Town, to over five million with interest that was awarded by Judge Joseph Farneti, after the years of continued arbitration and in an appeal by the Town of Mr. Perks' legal fees for his attorney, that were awarded by the arbitrator.
The Town has now paid for over fourteen years of litigation and spent millions in attorney's fees in order not to have to pay Mr. Perks' original legal fees of about $70,000 dollars. They continue to waste the taxpayer's money to the very present day, even though arbitration and Judge Farneti's decision sided with Mr. Perks and his Attorney, Ed Yule and said that the Town is responsible for Mr. Perks' legal fees because they were always covered by his union's collective bargaining agreement.
To this very day, the Town insists on spending more taxpayer money in legal fees to now appeal the Judge's Decision that supported the arbitrator's decision saying they should just pay Mr. Yule.
Conversely, Huntington Town has willingly and pretty much without questions spent millions in legal fees over fourteen years to pay for the defense of litigants sued by former Town Councilwoman Scarpati-Reilly and for her and their own defense against a sexual harassment lawsuit brought against her and the Town by Mr. Perks. The jury decided Ms. Scarpati-Reilly did sexually harass Mr. Perks, but did not hold the Town liable for her actions and awarded Mr. Perks no monetary compensation.
He Said...She Said...
He Supplied DNA...She Refused to...She Shut Up
Mr. Perks has always testified that he had an affair with the married Councilwoman and Ms. Scarpati-Reilly has always denied that. However, when Ms. Scarpati-Reilly sued Mr. Perks for defamation based on his assertion they had an affair, she said he was lying. He said he had DNA to prove he wasn't...the judge insisted she supply DNA to compare to blood and hair samples Mr. Perks said he obtained from his houseboat where he alleged the affair had taken place on occasions.
Ms. Scarpati-Reilly did not appear at several scheduled court appearances and never submitted to the court ordered DNA testing. So the Judge warned her once more on the record in open court, that she had to submit her DNA by a certain date, because after all, she was the one who was suing Mr. Perks saying he was lying about the affair. Mr. Perks' defense was that what he was saying was true and the DNA could prove that-- he asserted. When Ms. Scarpati-Reilly again did not comply with the court ordered DNA test, which was just a cheek swab, the judge noted and so it was not invasive as she had claimed earlier, according to court documents, when she failed to comply again, the judge dismissed her defamation case against Mr. Perks.
Mr. Perks kept filing grievances for himself and also on behalf of the other employees, because they never had the proper training or Haz-mat gear to protect them from exposure to radiation, he said. Even the DEC personnel assigned to the incinerator in East Northport, when the newly installed radiation detector continued to go off-- admitted to Mr. Perks they had no training related to radiation exposure whatsoever. When told the alarm was continuing to go off... the background level was raised five points higher so then, according to an interoffice memo, the alarm didn't go off as much after that.
The document in question was about the radioactive waste and dated May 18, 2000 from the facility manager at Ogden Martin; Thomas Chambers. It shows that from January to April of that year there were 25 incidents of radioactivity at the plant. Mr. Chambers wrote:
“With the exception of (3) ferrous metal loads returned from Gershow recycling most all incidents involved metal isotopes utilized in diagnostic testing. In the beginning of April 2000 we raised the detection level of the Bicron radiation detector to (5) times background and therefore the amount of detections dropped off considerably in April."
According to testimony of former Huntington Town Councilwoman, Susan Scarpati-Reilly, (from her deposition in a federal court case) the Town Board knew about the radiation at the plant as far back as 1994/95, but they handled it and took care of it in the private and undocumented Town Board Executive Sessions... because in Ms. Scarpati-Reilly's exact words, they were concerned about "litigation".
Radioactive isotopes were found in the fly ash of the burned scrap that was buried in the landfills to cap them. When tested it was revealed they contained radioactive isotopes with half lives of several billion years.
On February 18, and May 12, 1999 NDL Organization Inc. located at 1000 Lower South Street in Peekskill, New York, conducted an analysis under Gamma Spectroscopy of the Ash Content, Debris and Sludge (Slag & Debris) from the Ogden Martin Facility at 99 Town Road in East Northport and found that it contained: Thorium 232, Uranium 238, K-40 (Potassium) and Cesium 137.
Uranium-238+D at 8.6 pCi/g Half Life: 4.46 Billion Years
Thorium-232 +D at 91.2 pCi/g Half Life: 14 Billion Years
K-40 (Potassium) at 0.94 pCi/g Half Life: 1.25 Billion Years Cesium-137 at 0.82 pCi/g Half Life: 30 Years
Thorium- 232 is classified as a carcinogenic and emits alpha particles. It is extremely insoluble, but can become more soluble in the presence of high concentrations of organic materials.
Uranium-238 emits alpha particles. They are less penetrating than other forms of radiation, and weak gamma rays. As long as it remains outside the body, uranium poses little health hazard, if inhaled or ingested, however, its radioactivity poses increased risks of lung cancer and bone cancer. Uranium is also chemically toxic at high concentrations and can cause damage to internal organs, notably the kidneys.
Half-life is the period of time it takes for a substance undergoing decay to decrease by half. (Information from: The Environmental Health Division of the Wisconsin State Laboratory relating to Radiochemistry)
Here is part three and the final part of the deposition from Susan Scarpati-Reilly...
In the matter of William T. Perks against the Town of Huntington and Susan Scarpati-Reilly as Councilwoman for the Town of Huntington and individually heard in United States District Court of the Eastern District of New York.
Rains & Pogrebin Lawfirm:
Ernie Stolzer, attorney for the Town of Huntington
James (Jim) Clark, attorney for the Town of Huntington
Jason Abelove, attorney for Susan Scarpati-Reilly
Edward Yule, attorney for William Perks
The deposition of Susan Scarpati-Reilly took place over several days and generated over a thousand pages of testimony.
March 12, 2001
April 5, 2001
April 19, 2001
April 20, 2001
April 23, 2001
May 7, 2001
The following is an account of the testimony contained in the deposition on MAY 7, 2001, the last day of the deposition.
THE DEPOSITION OF TOWN COUNCILWOMAN SUSAN SCARPATI-REILLY
May 7, 2001
At the end of the last deposition day, April 23, 2001 Ms. Scarpati-Reilly allegedly tossed an Exhibit at Mr. Yule, the attorney for William Perks and yelled at him and his client to stop staring at her and walked out of the deposition. The characterization of her actions was objected to by Ms. Scarpati-Reilly's attorney, Jason Abelove and the subject was left for a judge's ruling.
The deposition picked up where it left off and Mr. Yule showed the witness an exhibit and began the questioning again.
The common political affiliations between Mr. Perks and Ms. Scarpati-Reilly eventually caused them to become closer socially and in 1996 he would call her and tell her his marital problems. They had lunch together often and Ms. Scarpati-Reilly enjoyed his company because he was funny, personable and engaging according to her description. Their friendship was close until the incident at the Mobil Oil Transfer Station on February 28, 1999 she testified.
Ms. Scarpati-Reilly said she had a meeting in December, 1998 with Mr. Nolan, Mr. Perks' director, Mr. Anastasia, the head of Maritime Services Division and Josephine Jahier, who showed up late.
LILCO apparently owed about $16,000 dollars in permit fees and this was a matter for discussion, according to the deposition. Mr. Yule then asked about a 12B6 motion Ms. Scarpati-Reilly submitted to Federal Court. There was an affidavit submitted with the motion and the judge ruled that was not proper. In the affidavit Ms. Scarpati-Reilly wrote, "I feel it imperative to stress to this Court that not only did I never have a sexual relationship with the plaintiff, I never threatened the plaintiff with the loss of his job."
The Fact-Finder's report was full of "non-facts", according to Ms. Scarpati-Reilly and she reiterated that she did not believe asking Mr. Perks to submit his resignation did amount to threatening him with loss of his job.
Q: Do you still believe that today, that you never threatened him with loss of his job?
Q: Then you wrote, there's a comma, "other benefits of his employment." Do you still believe that you never threatened the plaintiff with the loss of other benefits of his employment?
Q: What about you never threatened the plaintiff with criminal prosecution?
A: Never did.
Q: Didn't you go to the police station on February 28, 1999?
Q: Didn't you go to the DA's office a couple of times thereafter?
Q: Didn't you speak on the phone on a number of occasions with persons, whether they be secretaries or actual ADA's of the Suffolk County District Attorney's Office?
When she went to the Mobil Oil Transfer Station that rainy Sunday evening, she said she was upset because Mr. Perks was out of uniform, didn't have the truck and equipment she felt he needed to do his job and she wanted to speak to him about permit and summonses that should have been handled the prior summer.
Mr. Yule asked the witness what rule or Town code required Mr. Perks to have equipment in his truck and she could not cite any specific rule or law. Mr. Perks has insisted the equipment he needed was at the station and he didn't need to have the Town truck and equipment in order to do his job that night.
BACK TO THE 2ND PRECINCT...
Mr. Yule asked Ms. Scarpati-Reilly if she ever asked the police to have Mr. Perks "locked up".
A: I was going home. I didn't have any time to write out an affidavit and play around with the police department. It takes two or three hours in order to do all that. I didn't have the time, I had people waiting for me.
Q: Did the police tell you that you had to wait around and fill out all sorts of paperwork before they would lock him up?
A: Did the police tell me that?
A: I have my knowledge of bringing clients down in the past for that kind of situation.
Q: But when you went to the precinct did you say the words "I want you to have him ," quote, "locked up." end quote?
Q: Did you ever say I wanted him arrested?
Q: --"right now"?
Q: Then you went on to say in this affidavit, "because I was assaulted." You wrote that word "assaulted"?
A: I didn't write it. My attorney prepared this.
Q: But you signed it right?
A: Yes, I did.
Q: You signed it under penalty of perjury?
A: Sure did.
Q: You know the difference between assault and harassment; right?
A: Yes. I do.
Q: When you went to the precinct, did you ever tell them that you were assaulted?
A: No, I told them I was slapped on the arm.
Mr. Yule asked about a subpoena Ms. Scarpati-Reilly had received to appear in Mr. Perks' arbitration case and if she thought it was still good. She said, the Town Attorney, Thelma Neira told her she no longer had to appear under subpoena at a meeting they had a week prior to discuss the arbitration.
Then Mr. Abelove and Mr. Clark both objected to any more questions regarding their conversation, once again citing privilege.
The attorneys proceeded to argue whether or not Mr. Yule was badgering Ms. Scarpati-Reilly, Mr. Yule insisted he was merely asking questions and continued with the examination.
In the affidavit, Ms. Scarpati-Reilly used the word "assault" and Mr. Yule pressed her about it.
Q: You used the word assault in this affidavit. What's the definition of assault?
A: Which form?
Q: Well, when you used it here in the affidavit.
A: It could be a civil assault, intentional striking of an individual.
Q: So that's what you meant, a civil assault, when you wrote that in there?
A: I didn't write this. This was prepared by my attorney.
Q: But that's your signature on it?
A: Yes, and I overlooked that when I signed it. I just ran--I think I testified already that this was not worded the way I would have worded it, but it was worded by my attorney. He wasn't available when I signed it. I was under pressure to get it done quickly, because he was under pressure to get it done quickly because of time restraints and so I didn't get an opportunity to go word by word with my attorney and I guess I didn't really notice it at the time. I just went through it.
Q: Did you ever notify the Court that it was an error?
A: No, but I will.
Q: Two years later?
A: Yeah, I am just noticing it.
Q: Did you notify the Town regarding your use of the word assault in an affidavit was a mistake?
A: I just found out about it, so I will notify the Town. I think they're here. So notified.
Mr. Perks said that Ms. Scarpati-Reilly initiated the contact with Court by submitting an affidavit of her own volition that was ruled out of order by Judge Mischler. Mr. Perks, said "The time constraint was created by her own actions in an attempt to derail her original assault charge, which by now was a runaway train with Frank Petrone as the engineer and conductor and the Town Board as passengers, while taxpayers bought the ticket."
Ms. Scarpati-Reilly had written in her affidavit that the most serious portion of Mr. Perks' conversation with Mr. DeGregorio, was the fact that "he wants us to change the story. He wants me to go to the police, was threatening that I had to change my story, tell them it wasn't me."
Mr. Perks asked in a recent interview, "Why would anyone ask her to go back to the police that she had already spoken to and try to tell them it wasn't really her? That it was a man pretending to be her? Does that make sense to anyone...? The DA didn't think so either."
She continued, "Yeah He threatened me. He threatened that I was going to be found dead if she didn't change the story and tell the police that it wasn't me who filed the incident report."
Q: Did you tell the Assistant District Attorney that it was really tampering with a witness? That you felt that was the charge that should have been brought against Mr. Perks?
A: I told--it was a litany, a litany of things, but I believe I would leave that up to their discretion. It was more I guess, Mr. DeGregorio.
Q: Did you ever tell the DA that Mr. Perks threatened your life?
Mr. Perks said, "In previous depositions she said I threatened she would be found dead on the side of the road from suicide....the officials didn't buy that story, so now she changes her original premise and now she includes the threat against her life by me...She no longer says suicide, now it's a threat of murder. So we've morphed from a slap on the arm, to assault, to threat of suicide, to threat of murder...and still no one is biting. Now she is dragging Mr. DeGregorio into this." Mr. Perks added "She said it was up to the DA's discretion...they referred her back to the police and by March 11th she had already told the police she didn't want to go any further with the complaint...but that didn't stop the Town from going forward with their own in-house investigation against me."
Mr. Yule then showed the witness Plaintiff's Exhibit 30, a memo Ms. Scarpati-Reilly wrote to Mr. Perks dated November 23, 1998 and it had her initials next to her name.
The memo was related to the need for additional employees to be certified and trained as on-scene incident commanders or hazardous material technicians. At that point in time, only Mr. Perks was qualified and Mr. Acker and Rick Rollins had failed to become certified because they both failed the exam. Or as Ms. Scarpati-Reilly described it, "Obstacles were put in the way." As a result she asked Jody Anastasia and the Oil Spill Control Board to schedule another exam, so they could become qualified.
Mr. Acker's management status made it difficult for him to assign him to inspect tankers on overtime, Ms. Scarpati-Reilly said and that was why in the memo she wrote to Mr. Perks, "Therefore, you can assign another employee to cover ship inspections during non-working hours." This was an authority that Mr. Perks had as Oil Spill Response Manager, she said.
At some point there was a complaint from Matt Gross about the overtime, but Mr. Acker and Mr. Rollins were not certified to handle oil spills. She also asked Mr. Perks to prepare a weekly schedule to assign personnel to be on call in case there were a tanker inspection, but she had no idea if he ever did that.
Mr. Perks was more qualified and more highly certified to handle oil spills than any one else at the Town, including his bosses; Peter Waznys, Phil Nolan and Josephine Jahier.
According to Mr. Perks none of the three had any training or practical experience or certification in any of the requirements of the job. Jody Anastasia had some qualifications and experience from his service in the Coast Guard, but the Town refused to allow Mr. Perks to work for him as harbormaster. "They insisted on making me work out of title and classification at the landfill as hazardous material's coordinator.", he said.
When asked why Peter Waznys didn't write the memo to his employee, Ms. Scarpati-Reilly said he asked her to do it.
Q: Peter Waznys as director, asked the Councilwoman to write a memo to Waznys's subordinate?
Switching to Exhibit 30A; an interoffice memo from Susan Scarpati-Reilly to Mr. Perks dated November 23, 1998 and a draft memorandum prepared by Bob DeGregorio dated September 17, 1996 Mr. Yule, then showed her a memo dated November 24, 1998 from Mr. Perks to Susan. She could not recall receiving the memo, but it was most likely given to Mr. Yule by her attorney she agreed. She said she got quite a few memos in 1998, but she didn't always read them all, sometimes she just glanced at them, then filed them.
Ms. Scarpati-Reilly attended all the meetings of the Oil Spill Response Board, but it was Mr. Perks who really chaired the public meetings and set the agenda, although all members shared their opinions, she testified. Despite the fact that Patricia Del Col was the director, Ms. Scarpati-Reilly said she was asked by Ms. Del Col to distribute the Standard Operating and Notification Procedures on behalf of the Oil Spill Control Board.
Ms. Scarpati-Reilly said "I stepped into the shoes of Frank Petrone to do that." She did that because Frank never did it when asked to by Pat Del Col and she wasn't sure if Frank told Del Col to ask her to do it, but Pat said to her, "Here on behalf of the Oil Spill Control Board, you send it out.". She could not say why Mr. Petrone didn't send out the cover letter himself. There was considerable discussion of how far back they could go on charge backs and it was decided one year was the limit.
"THE LIE...The Shower"
Questioning by Mr. Yule shifted to a previously identified web page (Plaintiff's 21) from August or September of 1999, written by Ms. Scarpati-Reilly.
Q: Why did you feel the need to put a website entitled quote, "The Lie", end quote?
A: Because that was what the press was--the terminology of the press.
Bob DeGregorio did not help her write that, she said.
Mr. Matthews, the Town Attorney, first heard of the incident of February 28, 1999 when he went to Mr. DeGregorio's home on March 7, 1999 and met with Ms. Scarpati-Reilly and Mr. DeGregorio. Testifying she believed Mr. Matthews was there in his official capacity he told her that she was "doing the right thing". She could not say how long the meeting lasted and she was there as a Councilwoman as she is always acting in her official capacity 24 hours a day, clarified by Mr. Abelove that when she is taking a shower, even though that is not an official duty, "The Councilwoman is in the shower."
Similarly she said, when asked if Mr. Matthews was there as a friend or in his official capacity as Town Attorney, "The same thing. He is a lawyer. He never takes that off. He also had an appointment. He never--he can't shake that. That's what he was."
A: Just like a police officer, 24 hours a day. You're on duty 24 hours a day. Same exact thing.
Ms. Scarpati-Reilly said she assumed that at the meeting set up by Bob DeGregorio with Mr. Matthews, he was acting on behalf of the Town in capacity as Town Attorney.
Then as the three of them sat at the table, she testified, John Matthews took her hand and Bob's hand and said a prayer. There was no question on the table at the time, "At the end of our discussions, he grabbed both of our hands and said a prayer."
A short five minute break was taken and the questioning continued about the "incident" on February 28, 1999.
Q: Councilwoman, from February 28, 1999 until March 9, 1999, did Mr. Perks ever tell you directly he was going to kill you?
Q: Did he ever say he was going to kill your family?
A: I never talked to Mr. Perks except for March 3.
Q: Did he tell you then that he was going to harm your family.
A: He said my children would suffer.
Q: He said your children would suffer?
A: He said they would be hurt.
Q: Of course you went to the police after that; right?
A: I went to the District Attorney's office.
Q: What did they do?
A: I--I told them--what did they do? I told you what they did. I was waiting for Mr. Cohen to get back to me and I spoke to Mr. Cohen. At that point he advised me to proceed to the police if I was to choose that route and then I decided the fact-finder had been appointed and I would handle it in that fashion.
There was a discussion between Ms. Scarpati-Reilly and Mr. Ed Hennesey where it was mentioned that if Mr. Perks didn't cooperate with the Fact-Finder and she didn't either, then they would have nothing and there would be nothing to investigate. Ed Hennesey, was contacted by the union (by his own brother Harry) and asked Ms. Scarpati-Reilly if she would accompany him to speak with Mr. Yule.
She said Ed Hennesey did not encourage her to plead the 5th when she spoke to the Fact-Finder, nor did Harry. She did let the Fact-Finder know that Perks had threatened her children and her life she testified and Mr. Labush made no comment but "was concerned" she said.
Plaintiff's 20, the Ethics Board web pages, were shown to her and she said she wrote them but had Mr. DeGregorio review them prior to publishing them. He suggested grammatical changes, but wasn't acting as a Town Attorney she said because he wasn't employed by the Town at that time. Then she said he hadn't been appointed by the Town. Records show he was dismissed by the Town as Environmental Counsel at that time and re-hired as outside counsel when he asked them for numerous sick and vacation days he had no in no way documented, but demanded to be paid for. He never punched a clock and no one had kept track of his time, except him.
In paragraph 68 of the website she wrote a letter to the press apologizing for "misstatements" and in the letter she said, deponent, referring to herself "was careful not to mention Perks' threats of being found dead from suicide. This was done at the explicit instruction of the District Attorney's Office."
Mr. Perks noted: "Now she is saying that the District Attorney's Office had instructed her to change the story and it is back to suicide."
"DEPENDS ON WHAT YOUR DEFINITION OF A LIE IS"
Maureen McCormick, the Suffolk ADA, specifically told her to do that Ms. Scarpati-Reilly testified.
A: I told them I had lied to the press. They said they weren't telling the press anything either. I said that I had to send a letter of apologies to them and um--as a result, they said, "Well be careful not to talk about the threats that I was to be found dead through suicide" because it was still at that point in time being discussed whether we were going to try and put a tap on his phone and have him speak with Mr. Perks and see if Mr. Perks would again make those threats and to obviously--
Q: Why did you have to send a letter to the newspaper?
A: I just felt it was my obligation, as an elected official to apologize to the public for stories that were being written that week.
Q: You wrote a letter apologizing for your lying?
Q: Would an analogy for a misstatement be a lie?
A: Depends on what your definition of a lie is. I don't know what your definition is. You call me a liar all the time, so I don't know.
Q: What is your definition of a liar?
A: There were misstatements. I was trying to protect myself and my family from harm.
Q: Physical harm?
A: Yes, yes.
Q: But what's your definition of a lie?
A: Maybe not completely truthful.
Q: I mean you even referred to yourself a few moments ago of having lied; right?
A: I don't know. Can I have that read back please?
MR ABELOVE: (Ms. Scarpati-Reilly's attorney) I honestly don't remember her saying that, so--
Q: (YULE) I'll ask you another question then. Would it be an accurate statement to characterize your false statement to the press saying it wasn't you who filed the complaint and then later apologizing for that as lying to the police?
A: (Scarpati-Reilly) It was extortion. Mr. Perks was extorting me, coercing me into telling the press these particular misstatements in order to, I guess, further his own, I guess, benefit. And for me I was being threatened, my family was being threatened.
Q: As a result of that you lied?
A: As a result of that I followed Mr. Perks' instructions to protect myself and my family.
Q: But those instructions, you say they were from Perks? You got them directly from DeGregorio; right? You never got them directly from Perks?
A: No, directly from Perks.
Q: You did?
A: Yes, I did.
Q: When was that?
A: On March 3, in a telephone conversation I had with him.
Q: Then after that telephone conversation you went to his house?
Mr. Perks upon reading this part of the transcript said, "Now she is accusing me of extortion and coercion and is saying I told her to lie to the press, when just a few paragraphs earlier she said it was the DA..."
Mr. Yule then asked about the Ethic's Board report and Ms. Scarpati-Relly said she had read it.
Q: Is it fair to say that they did not believe your version of the facts that Perks had threatened your life?
A: I think the document speaks for itself.
Q: Did they believe you?
A: I have no idea. I have never spoken to them.
Q: You read their report right?
A: Yeah, a long time ago.
Ms. Scarpati-Reilly said she removed her web page about the report, but did not know when she did so.
"This all happened in the space of a few months and she had written a rebuttal to their report." Mr. Perks said, "So how could she possibly have forgotten that so quickly?"
Conflicts of interest between attorneys was the topic next up on Mr. Yule's roster and Ms. Scarpati-Reilly did not find any problem or conflict of interest when she met with Town Attorney, Matthews and Bob DeGregorio in Mr. DeGregorio's home. There was no problem with them praying together that day. Then Mr. Yule showed her a quote from Mr. Matthews from a press release where he said:
She believed the quote was from the Observer and Huntington News article dated August 19, 1999.
"Ultimately we believe that a judge and/or jury will dismiss all claims against the Town. To the extent that Mr. Perks has any claim of harassment, we believe it is between Mr. Perks and Ms. Scarpati-Reilly." (Town Attorney; Jim Matthews)
When asked, she said she did not believe after reading it that Mr. Matthews had a conflict of interest when he met with her that Sunday at Mr. DeGregorio's home.
Next she was asked if she thought it was a conflict of interest for her to represent her husband and children in the defamation case where she could have been called as a material witness. Mr. Abelove objected, instructed her not to answer and it was marked for a ruling.
She was asked if she thought it was a conflict of interest when she spoke to Laura Perks and she did not.
She did tell Mr. Labush that before the vote on the resolution appointing the Fact-Finder, that she tried to let Mr. Petrone, the Supervisor and Mr. Matthews, the Town Attorney that the word assault was not correct or accurate and was a mistake "and needed to be changed."
Q: When did you tell him that?
A: I told him in the informal interview as well as in the deposition.
Q: But you didn't mention it in the deposition?
A: I did mention it in the deposition.
Q: What did you say in your deposition, to the best of your recollection?
A: I said that I had confronted Jim Matthews as well as Frank Petrone over the word of assault and ask that it be changed.
Q: Why were you involved in discussions of the resolution when you abstained from the vote?
A: Because the resolution, I had to make--I had to vote on it. I decided after reading the resolution that I abstained on it.
Ms. Scarpati-Reilly said she didn't make a public comment on it because she thought she had made adequate representation to the Town Attorney and to the Town Board Supervisor. Then she also told the Fact-Finder who was supposedly investigating on behalf of the Town, that it was done improperly.
Ms. Scarpati-Reilly used the word assault in her affidavit to the judge. When confronted about that fact, she said, "I didn't. I told you I reviewed that very quickly. I did not catch that at the time. I just caught it today when you showed it to me."
Q: You mean you caught it the last time when I showed it to you just before you walked out.
A: I don't believe so. I don't think I got to that page yet.
(Editor's Note: She had gotten to that page and she was shown it at the last deposition day.)
Q: The last thing you'd like to see is Mr. Perks have his attorney paid for during that investigation; is that a fair statement?
MR. ABELOVE: During which?
MR. YULE: The Fact-Finder.
MR. ABELOVE: Objection. That's just badgering her.
MR. YULE: No it's not.
MR. ABELOVE: I think the last thing she'd like to see is her kids getting murdered.
MR. YULE: Maybe you should check the witnesses out before you make statements about Perks' alleged threats about their children because no one in the world seems to know about these threats.
MR. ABELOVE: Objection. I mean you are badgering the witness.
MR. YULE: I'm talking to you in response to your statement.
MR. ABELOVE: But you're being sarcastic.
MR. YULE: And so--
MR. ABELOVE: --and totally unprofessional.
MR. YULE: So are you.
MR. ABELOVE: What's sarcastic, the comment? I objected on the record.
MR. YULE: I will not argue Jason--
MR. ABELOVE: --and you came back with sarcasm.
MR. YULE: You stated my client was going to kill her kids, but there is not a single person in the DA's Office that will back you up.
MR. ABELOVE: All right. That's it. I mean any more of this and I'm ending this deposition because it's totally inappropriate. Now you're pointing at me and giving me attitude and being argumentative.
MR. YULE: I'm asking you to stop calling my client a murderer.
MR. ABELOVE: When did I call your client a murderer?
MR. YULE: Well, you'll read the transcript.
MR. ABELOVE: Read the transcript from what? No I didn't.
The verbal volley between attorneys finally ended and Mr. Yule showed Plaintiff's 22 to Ms. Scarpati-Reilly. She said no one had helped her write it and no one reviewed it before she published it. In it she said Mr. Perks falsely accused her of sexual harassment, but could offer no proof except her testimony.
Ms. Scarpati-Reilly stated that Mr. Perks had not substantiated his claims of sexual harassment, however a jury in United States District Court eventually found her guilty of sexually harassing Mr. Perks, but released the Town from any financial liability and awarded Mr. Perks no financial remuneration.
The next few questions referred to transfer of funds from the Oil Spill Trust and Agency account that Ms. Scarpati-Reilly had sent a memo to the comptroller asking about. Josephine Jahier and Phil Nolan were the ones that got the printouts of the shortfall and Ms. Scarpati-Reilly could not say for sure if Mr. Perks was ever notified.
Winding down the questioning Mr. Yule asked if Ms. Scarpati-Reilly ever told Mr. Matthews that Mr. Perks had assaulted her. She said "No.".
Q: Did you ever tell the District Attorney's Office that you were the subject of extortion?
A: They're the ones that told me.
Q: Which one?
A: I don't recall which one.
Q: Either Mr. Williams or Ms. McCormack?
Q: At that meeting when you were there with Mr. DeGregorio--
Q: --Did you ever tell the Fact-Finder that you were the subject of extortion?
A: Um--I believe he also acknowledged that.
Q: How did he acknowledge that?
A: We had a conversation about the fact that I was being blackmailed. That's why I believe in the transcript he asked me if I felt I was coerced.
Q: Did you ever tell the police that you were the subject of extortion?
A: No. I only talked to the police to make an incident report on February 28 and when I talked to the sergeant concerning the actual incident on--on the 8th of March, that I had decided at that point in time not to pursue any more discussions with the police department.
Q: Did you ever say to Sergeant Hunt that you had a change of heart?
Q: Did you ever tell Kenneth Kelly (the Fact-Finder's investigator) you had a change of heart?
Q: Did you ever tell James Matthews about the extortion, blackmail and death threats?
A: Um--Mr. Matthews didn't want me to go into too many specifics.
Mr. Perks said he could not believe that "Now in addition to : being out of uniform, having no Town truck, slapping her in the head, then on the arm (that slid off because it was raining and she had on a slicker, then harassment, then assault, then threat of suicide on side of road, then attempted murder of her and her children, then extortion and coercion and now blackmail has been added to the list of allegation against me. To this day no one from the Police or the District Attorney's Office or the Town Ethic's Board has ever contacted me to discuss her allegations." Clifford Bart, the Town's outside counsel in this matter admitted twice on the record that the Town did not dispute Mr. Perks' version of events that night.
Questions about her conversations with Mr. Matthews and questions about off the record statements to the Fact-Finder were not answered with Mr. Abelove claiming privilege.
Q: You talked in your last deposition about Tuohey having the proxies on the vote for the republican party. Do you remember that? There was some talk of that?
Q: Did you find yourself being in a difficult position, you being in fact Tuohey's superior, being elected Councilwoman and him having the authority over you in a sense as a republican by having proxies?
A: I find an extreme conflict of interest for the republican party, as well as the conservative party, to have employees of the Town judge you when you go to stand before them, but that is the system.
Q: Do you think it is illegal to trade proxies for a job?
Q: Do you that was done in the Town of Huntington?
Q: You think it involved Mr. Tuohey and the republican party?
A: It involved Mr. Tuohey and the supervisor.
Q: Do you believe Petrone by condoning that or being involved in that, participated in something that was illegal?
A: I guess the people will judge that fact.
Q: Did Tuohey trade his vote with the supervisor?
A: I can't answer that question like that.
Q: Did Tuohey trade his proxies to go along with what Supervisor Petrone had wanted in order to settle his grievances?
A: To get more than what he had requested to settle his grievances.
Ms. Scarpati-Reilly said she didn't go to the Public Integrity Unit of the DA's Office about this.
"Unfortunately in Town government, I see a lot of things that I think are very questionable. I don't go running to the police department or the District Attorney's Office to report every single thing that I see.
If it hurts the public, yes, I would. Did it hurt the public in this fashion, no."
Previously Ms. Scarpati-Reilly testified that radiation being burned in the Ogden Martin Facility was discussed in secret Executive Session meetings as far back as '94/95. They "took care of it" she stated, but never informed employees or members of the public that may have been exposed to deadly radiation, because the Town was worried about "Litigation."
Q: As a result of those proxies that Tuohey traded, did Mr. Tuohey earn more money as a result of that working for the Town?
MR. ABELOVE: She said she believes that he traded. It's her opinion.
MR. YULE: Yes, understood.
A: He had gone from a grade 10 to a foreman 3.
(That is a huge jump from a blue collar employee into the supervisory unit which was only one position from the top.) Mr. Perks said, "Everyone was aware of what had transpired and it set a terrible precedent again."
Several questions later:
Q: Do you believe Brian Tuohey and George Hoffman were in conspiracy together to get you around the time of the Mobil Station?
Q: Did you ever get Perks a laptop?
A: Did I ever get him a laptop? I never got him one personally.
Q: Did you use your influence in any way to get Perks a laptop for his job as oil spill response manager?
A: Pat Del Col asked me to look into it and I did it for her.
Q: So you got it for Pat Del Col at her request for Perks?
Apparently General Services had gotten an extra one and instead of sending it back, Pat Del Col asked if they could purchase the second one and so Susan Scarpati-Reilly approached Bob LaBower (really Labua) and asked if they could purchase it for use by the Oil Spill Control Board.
Up to that point Mr. Perks typed at least 500 memo's by himself, without any support staff, so the laptop would be very helpful, Ms. Scarpati-Reilly testified. She had turned all those memos over during discovery and had received a copy of all of Mr. Perks' grievance through discovery as well.
She saw his personnel file through discovery and reviewed it with her attorney in advance of the litigation.
Mr. Yule directed Ms. Scarpati-Reilly's attention to January of 1998 and a reorganization meeting regarding the budget and a statement she had made about it to the Fact-Finder...
"They said I could have the truck, even though we had the money in the account."
The "they" was the Town Board and the money was in the Trust & Agency account.
Q: Is it fair to say that you sided with Frank Petrone on the rest of the vote, the rest of the Town vote, and then they voted to get the truck?
Q: How did it come about that you compromised your vote, not compromised, but that you gave them a little something and did they give you something back in return, which included the truck for the oil spill response manager?
(After a brief objection to form...Ms. Scarpati-Reilly answered)
In the course of business, when the resolution came up, we discussed in an executive session, the reorganization with a new administration coming in. They wanted to put in 200,000 plus in jobs for various people that they wanted to appoint and bring into Town Hall and to establish a whole brand new constituent service unit.
As a result of that, knowing how I felt about adding more jobs, they said to me in negotiations, you know, what--what would you like to add to this because I know the supervisor had some things he added. I believe the democrats, themselves, had decided amongst themselves what they really had wanted.
As a result of that, I negotiated for equipment at the park in East Northport. I negotiated for some seed money for the commercial fishing marina. I negotiated for some money for the nature center in Crab Meadow Beach and at the end of that, that session, they agreed to have the controller sign off on the purchase order for the oil spill response emergency vehicle, which had been pending for a couple of months, but that didn't require any kind of vote because that was something Pat Del Col had requested for about eight months and Frank and the controller's office had some discussions about it and they wouldn't sign off on it until such time as after the resolution passed. They agreed to let Mike Fabiano sign off on the purchase order.
Ms. Scarpati-Reilly denied giving her vote to the supervisor in order to get the truck, saying, "No. There was no vote for an oil spill response emergency vehicle." The Fact-Finder mentioned in his report that selling a vote would be considered criminal activity and for that reason and others forwarded the report to the Suffolk County District Attorney's and State Attorney General's offices.
Ms. Scarpati-Reilly said she had to file an Article 78 in order to get a copy of the transcript of her deposition with the Fact-Finder, because even after "Foil"-ing for it, they refused to give it to her.
Mr. DeGregorio had stopped by her home just the day before this testimony and she said had spoken with him concerning his upcoming EBT that he had been subpoenaed for. They also discussed the fact that he had gotten a position working for the Town "of counsel" and that he would be handling bank closings and such.
Denying that she discussed what he was going to say, Ms. Scarpati-Reilly said, "I think I may have said something to him in the very beginning, at least a month ago, I may have said something."
Q: You haven't said anything to him regarding what kind of questions I was asking you.
A: No. I usually described your demeanor to him.
Calling Mr. DeGregorio a good friend, but not her best friend she said she did not know if Mr. DeGregorio was going to show up for his EBT but he told her he had discussed the timing of it with Dave Besso. (Another attorney, representing Mr. DeGregorio).
Editor's question: Did the Town pay for Besso too?
Questions reverted back to topics already covered as Mr. Yule began to wind the deposition down to a close...
Q: What other Town employees, to your knowledge, submit daily logs as to where they plan to be each day?
A: I have no idea.
Q: Do you think it was proper for you as a Councilwoman to lobby on behalf of Perks' grievances with the union?
A: I lobbied on behalf of all the employees in the Town of Huntington, with the union.
The website she had first published around February or March of 2000, she said, but had changed it subsequently.
Ms. Scarpati-Reilly was then asked about the Town's sexual harassment policy and when she had first received a copy of it. She could not recall if she had received one in 1993, when she first was elected, but testified that she herself used to give lectures to the professors and assistant professors in sexual harassment policy at SUNY at Farmingdale; which she arranged through the Dean's office there. She did that either between '87-'89 or '88-'90, she wasn't sure, but it was for at least two years, she testified.
Q: Are you familiar with Sexual Harassment Law Title 7?
A: At this stage, no.
Q: No. Back then when you taught it?
A: At that point yes.
Q: From that point to now you lost your familiarity with Title 7?
A: I'm no longer doing civil--writing violations and such with the County. That was kind of an offshoot of that.
Lisa Baisley usually took complaints of that nature, Ms. Scarpati-Reilly said, but she herself, was writing a draft sexual harassment policy in conjunction with their attorneys.
Q: Did there come a time when it was formally voted on and adopted?
A: Pursuant to a consent decree, yes.
Q: You heard everyone here, Councilwoman, that they never--they testified that they never received any policy until sometime after this incident. There was a lot of testimony to that.
MR. ABELOVE: Objection.
Q: Do you disagree? In other words, did the Town distribute it's current sexual harassment policy that's in existence now, was it distributed prior to February 28, 1999?
MR. ABELOVE: Objection.
A: No. Not that one.
Q: Why didn't you correct the depositions if there were errors in the deposition of the Fact-Finder when you finally did see it?
A: Who was I going to correct and submit to?
Q: You could write a letter to the Fact-Finder.
A: It was a political document. The Fact-Finder got his pay and that's what he was supposed to do. He was no longer employed by the Town.
Editor's Question: Why didn't Ms. Scarpati-Reilly bring these allegations to the Public Integrity Division at the Suffolk District Attorney's Office?
The final questions referenced a NEWSDAY article dated Sunday, April 2, 2000 and Ms. Scarpati-Reilly underlined what she thought was wrong with it. She said she did contact NEWSDAY about the inaccuracies, but they never published a correction.
At that point Mr. Yule ended his deposition of Ms. Scarpati-Reilly.
THE TOWN CUTS ABELOVE LOOSE...
Mr. Abelove continued to represent Ms. Scarpati-Reilly in this and several other legal cases started by Ms. Scarpati-Reilly and the Town continued to pay his fees until 2002. The Town even paid his legal fees for a defamation lawsuit initiated against Mr. perks on behalf of herself and her family. This suit was dismissed when she refused on several occasions to comply with a court order to provide DNA to compare with samples Mr. Perks said he retrieved from his houseboat, when they had their liaisons there.
Editor's Question: Why would the Town pay for a personal lawsuit initiated by Ms. Scarpati-Reilly without knowledge or resolution by the Town Board?
On September 3, 2003 Mr. Abelove wrote a letter to Judge Joanna Seybert (USDC) who had been presiding over the federal court case brought by Mr. Perks against the Town of Huntington et-al and Susan Scarpati-Reilly for sexual harassment. (99Civ, 481 (JS) (MLO)
In this letter Mr. Abelove asks to be removed as counsel for Ms. Scarpati-Reilly because:
The instant matter had over 60 names on the witness list and over 10,000 pages of documents were involved and his client (Susan Scarpati-Reilly) had submitted papers to the court in which Mr. Abelove wrote,
"...she (Scarpati-Reilly) admits she has no intention of paying legal bills incurred. When I have brought this matter up to her she has started screaming at me, hung up the phone on me and has not spoken to me since November, 2002. The Town of Huntington (hereinafter "Town"), who by resolution agreed to pay Scarpati-Reilly's legal bills have proven, by their words and their actions, that they have no intention of paying any legal fees. Frank Petrone, the Supervisor of the Town, has unabashedly stated in a quote to NEWSDAY, "He's not getting another nickel, Town Supervisor said of Abelove, "I don't care how unfair it is." I have been advised by Thelma Neira, Esq., that the Town has advised her not to pay any more legal bills. Further as is detailed below and in the papers before this Court, the Town's actions illustrate they have no intention of paying any legal bills.'
"If Magistrate Judge Orenstein's Report and Recommendation (that he stay on as her counsel) is upheld, I will be in a position where: (i) my relationship with my client is irreparably damaged as, even if she begins to return phone calls, she will yell and scream at me when I raise the issue of payment; and (ii) I am forced to try a case without being fully able to prepare as there is no money to subpoena witnesses, copy exhibits, retain experts, etc. These are clearly grounds for relief."The Town had paid all the legal bills from November 1, 1999 through May 1, 2002. The Town had paid every bill submitted monthly by Mr. Abelove for the Scarpati-Reilly legal representation. Each bill was apporoved by Thelma Neira and paid within 150 days and on the rare occasion she had a problem with an invoice she would simply phone Mr. Abelove's office and it was resolved amicably, he wrote.
Then after May 1, 2002 at the conclusion of discovery and following the filing of a separate and lengthy complex Summary Judgement motion by the Town and Scarpati-Reilly, the Town initiated settlement discussions with Mr. Perks' attorney. The Town's proposal was rejected by both Mr. Perks and Susan Scarpati-Reilly. Right after the rejection, on or about May 31, 2002, Mr. Abelove received a letter from Thelma Neira stating he did not notify the Town in a "timely manner" that he had hired Charles Weintraub Esq. to be "of counsel" and that not only were they not going to pay for time spent by Mr. Weintraub, but that the Town was "claiming credit" for over $30,000 dollars of work that had already been approved and paid for by the Town. Ms. Neira also wrote that "The Town would not pay any future bills on certain items without descriptions that would violate the attorney-client work product privileges."
Mr. Abelove argued further:
It can be of no coincidence that the first time the Town objected to pay any part of my legal bills is after Plaintiff and Scarpati-Reilly rejected the Town's settlement proposal. It was only after such a rejection that my bills were re-reviewed with a new perspective, and the Town sought credit for items which had already been approved and paid for. Clearly the Town is seeking to gain legal advantage in federal action by refusing to provide Scarpati-Reilly with a defense.
Mr. Abelove said Judge Orenstein was wrong when he said the Town had not authorized the retention of a second attorney because the Town had paid bills for the second attorney as far back 2000, where the bills for two lawyers had been submitted and approved and paid for by the Town as far back as February 3, 2002 and they did not deny that fact.
Mr. Abelove noted that the Town waited months and in some cases years to question unauthorized and inappropriate charges and only did so "...at a time they seek to pressure Defendant Scarpati-Reilly to accept their settlement proposal."
Mr. Abelove also indicated Ms. Neira was now requiring him to divulge specifics of research, telephone calls and meetings in violation of the attorney-client and attorney-work product privileges.
Claiming he had not communicated with his client, Susan Scarpati-Reilly except for one time since November 2002, he said that phone call ended with her screaming at him and hanging up when he brought up the topic of legal fees.
Magistrate Orenstein noted "the staggering cost to the Town to bring in new counsel at this point in the litigation." Mr. Abelove countered, "The problem has been created by the Town, as they retaliate against Susan Scarpati-Reilly for not accepting their settlement proposal."
Finally, Mr. Abelove wrote to Judge Seybert that he had offered to reduce his future fees by 10% after the filing of his Article 78 Petition in exchange for the payment in full of the balance of legal fees owed (this as long as there would be a neutral third party to review future entries the Town might object to.)
The Town rejected that offer outright, offered no counter offer and advised Mr. Abelove's attorney that "...they would never pay any more legal fees to my office."
Editor's Note: But they did pay his fees and they are still paying....and there is no end in sight after 15 years.
NEXT: THE MEDIA MISSES THE MARK
Monday, March 10, 2014
Was it all Based on a False Police Report???
FREELANCE INVESTIGATIONS' EXCLUSIVE
On Monday, February 24, 2014, an Assistant Elections Clerk, working at the Suffolk County Board of Elections, Cheryl Pallotta, filed a formal complaint and police report against another Board of Elections employee, Patricia Montanino. Ms. Pallotta alleges Ms. Montanino violently struck her, knocked a potato chip out of her mouth, told her to leave it for the "rats"-- indicating other Board employees with the rat comment-- and then walked away laughing.
Ms. Montanino denies she ever hit Ms. Pallotta and has another entirely different version of events. Luckily for her, she audio-taped the entire incident.
There was also another employee who stated she was a witness to the alleged incident, Christine Tomasino, who agrees with Ms. Pallotta's statements and signed the formal complaint as a witness.
She said she saw Ms. Montanino hit Ms. Pallotta, knocking the chip out of her mouth and telling her to "leave it for the rats" indicating her and other employees by the remark. Then Ms. Montanino continued laughing at Cheryl, she said she saw, as Ms. Montanino walked away immediately.
"THE POTATO CHIP INCIDENT"
According to the Suffolk County "Workplace Violence Notice Form" filled out at the Board of Elections by Ms. Pallotta on Tuesday, February 25, she wrote she had filed a formal Police report the day before (Complaint # 14-127504). This is Ms. Pallotta's exact version of what happened from the complaint form to the Board of Elections.
On Monday, February 24, 2014 at approximately 1:30 pm, I was sitting at my desk, eating potato chips while working, when Pat Montanino walked into my work space and struck me in the chin, mouth and nose with one upward swing of her hand, knocking the potato chip out of my mouth and onto the floor.
After hitting me, Pat Montanino turned and walked away laughing. As I went to pick the chip off the floor, Pat Montanino turned toward me and menacingly approached me saying in a threatening tone twice, "Don't pick up the chip--leave it for the rats.", motioning her hand to reference the people who work at the Board of Elections. As Pat Montanino approached me as I was down picking up the chip, I was fearful that she was going to hit me again or kick me. Pat Montanino again walked away laughing.
After throwing out the chip, I sat at my desk for a while in shock, just being violently, physically attacked without any provocation at my workplace. Pat Montanino's aggressive and violent behavior against me in this incident is absolutely unacceptable and squarely against Standard Operating Procedure A-22 Workplace Violence Prevention Program and Incident Reporting Procedure, with specific Reference to 6, Statement of Policy, a Workplace Violence Prevention. (From the complaint written and signed by Cheryl Pallotta) (Boldface and underlined words were boldfaced and underlined in the complaint)One of the signatures at the end of Ms. Pallotta's statement was that of Jeannie O'Rourke, the Human Resources Coordinator for the Democratic side of the Board of Elections. Ms. O'Rourke is also a member of the Suffolk County Democratic Committee. Ms. Montanino said she declined giving a statement to Ms. O'Rourke, when requested of her at the Board that Wednesday, referring Ms. O'Rourke to her attorney instead.
Ms. Pallota has only been employed at the Board of Elections for three months and her husband, Gerard (Gerry) Pallotta, is currently the Chairman of the Islip Democratic Committee. Ms. Montanino is a Republican, by the way.
Ms. Montanino says she never hit Ms. Pallotta, but just put her finger on her shoulder then up to her chin as she often does kidding around with other employees...they look down and she touches their chin... with her finger--a harmless and non-violent, albeit juvenile gesture, she readily admits giggling. After the chip fell and Ms. Pallotta picked it up Ms. Montanino says they had a pleasant conversation for a minute or so about Cheryl Pallotta's recent family loss of her father around Valentine's Day.
After going to the police to file a complaint on Monday, February 24, the next day, Tuesday, Ms. Pallotta filed the complaint with the Board of Elections.
When Pat Montanino went to work the next day, Tuesday, February 25th, according to her, she was told by Eileen Knoble, the Democratic Supervisor, that Cheryl Pallotta would be scanning that day and not her.
According to Ms. Montanino, Ms. Knoble told her that she was sitting in a "Democratic Chair". Ms. Montanino replied telling Ms. Knoble, she was just doing what the front office told her to do. That is when she said Ms. Knoble's tone changed and got nasty and she said "And I’m telling you that’s Crystal's chair and Cheryl can scan." Ms. Montanino said she capitulated and said she would have to check with the Republican supervisor who had given her the scanning job to finish.
Ms. Montanino said Ms. Knoble then told her, "Talk to the front office, Cheryl can scan also."
She said she told Ms. Knoble "Ok, no problem." as she gathered her belongings to go to the front office to see what she should do. Ms. Knoble then told her "You weren’t told you are the permanent replacement for scanning." Ms. Montanino said she responded, "No, no, your right...hostile very hostile in here." she said as she left and went to the front office.
At the front office, she told Wayne Rogers, the Republican Commissioner, she thought it best that she should just go home right then, because the Republican Supervisor who was usually also in the room, was out that day and because of Ms. Knoble's tone of voice she felt it best to leave. Ms. Montanino went home late in the morning that day. By 1 pm on Tuesday the Board of Elections was calling Ms. Montanino at her home and telling her there had been a police report filed by Ms. Pallotta against her the day before for harassment during the alleged "potato chip incident".
On Thursday and Friday Ms. Montanino went back to work and she was told she would be scanning both days, because they needed to get the documents scanned and finished. Ms. Montanino said she got the silent treatment from the whole office both days, except for her immediate supervisor and two Republican co-workers.
On Thursday, February 27th, unbeknownst to Ms. Montanino at the time, Ms. Pallotta went to court and got an order of protection against Ms. Montanino based on the alleged "Potato Chip Incident". Agreeing it was just to prevent Ms. Montanino from going to her home, contacting or following her, Ms. Pallotta told the judge in Court that day she would have no problem with Ms. Montanino working at the Board while she was there, so the Judge issued the order of protection and assigned a court date for late March.
Curiously, though at that time, Ms. Montanino was not informed in any way and was totally unaware that the order of protection had been acquired against her. At the the top of the original order of protection it has two boxes checked. One would indicate Ms. Montanino was released on her own recognizance, the other checked box indicated she was released on bail. The problem here is, she was never in custody, never under arrest and had not even been called on the phone about the order of protection at that point. So the boxes indicating she had been in some kind of custody and either released on bail or in her own recognizance at that time, were totally inappropriate and inaccurate giving anyone who might read those papers, the appearance that she HAD BEEN arrested.
Editor's Note: This also may have been why the Police may not have felt they had a choice but to take Ms. Montanino in to the precinct. If they looked at the original order of protection, with those boxes inappropriately checked, they might have been led to think she had been arrested prior to this, when she had not. The Police insisted they had to follow the paperwork by the letter, according to Ms. Montanino.
Ms. Montanino was not served with papers relating to the order of protection until late the next night, Friday, February 28, 2014. She did not return to work on Monday, instead she went to speak with her attorney and the next day, Tuesday of last week, they met at Court.
EVENTS of The WEEK FOLLOWING the ALLEGED "POTATO CHIP INCIDENT"
On Tuesday of last week, Ms. Montanino and her attorney went to Court to make sure it was alright for her to go back to work at the Board, with the order of protection hanging over her head from the previous Friday evening. They also went to hand over an audio-tape of the complete alleged "potato chip incident". The Judge said Ms. Pallotta had assured her when she approved the original order of protection, that work would accommodate them both and there should be no problem with Ms. Montanino returning to her job at the Board. (Ms. Montanino was not in Court the day the order of protection was gotten and again had no knowledge of Ms. Pallotta's obtaining the order of protection against her, until Friday, February 28th.)
The very next day on Wednesday, March 5th, was the first day Ms. Montanino was back at work. Her desk was on the opposite side and end of the room from Ms. Pallotta and she says she never approached Ms. Pallotta, nor had she spoken to her at all that day. At around 9:30 am Ms. Montanino had been told to wait in the GOP's Commissioner's Office while they made a call to the attorneys for the Board of Elections in her presence. They wanted to make sure it was alright for her to be there because they had gotten a copy of the order of protection somehow. The upshot of the call was that there should be no problem with the two employees; Ms. Montanino and Ms. Pallotta, working at the same time in the building, she was told, so Ms. Montanino went to work. The County Attorney's Office confirmed in a recent call, that the Board of Elections did request an opinion from their office that day, regarding the order of protection and the Board was told there should not have been any problem with Ms. Montanino being back at the Board to work.
WHAT WAS THE EMERGENCY 911 CALL ALL ABOUT?
That same day, after working without incident for over two hours, around 11 am on Wednesday, March 5th, Ms. Pallotta suddenly dialed 911, telling the operator that Ms. Montanino had violated the order of protection and three police cars arrived at the Board of Elections within minutes. Ms. Montanino was told by Police to remove all her jewelry and things she didn't want taken from her at the precinct, in anticipation of her arrest. She was told by an officer to put those items in her car and lock it. Ms. Montanino did as she was told, removing her jewelry in the parking lot (losing a diamond stud earring in the process, she would later learn) and she was put into a police car and brought to the precinct, publicly humiliated in front of all her co-workers.
The Republican Commissioner, Wayne Rogers told her at the time, "Don't worry, we're trying to work this out.", as she was led out of the workplace, by the Police, supposedly in anticipation of arrest.
Although Ms. Pallotta said she agreed to allow Ms. Montanino to work at the Board of Elections without a problem, when she first got the order of protection, that information was never written into the actual order, so the police claimed they had no choice, but to take Ms. Montanino in, based on the 911 call from Cheryl Pallotta. They took her to the station, allegedly to arrest her. They never did. When she got to the precinct, they sat her in their office and after apologizing to her for the inconvenience, they eventually just let her go when her husband arrived. She was held at the precinct for about an hour and a half.
Ms. Montanino went back to court the same day with her attorney, immediately after being released by the Police. The Judge in the case expressed dismay at the turn of events, because she felt she had been misled by Ms. Pallotta who told her being at the workplace with Ms. Montanino would not be an issue, when the judge agreed to issue the order of protection in the first place. Then the Judge moved up a late March scheduled court date for Ms. Montanino to March 14th, in order for Ms. Montanino to answer the original harassment charges made against her, based on the alleged "Potato Chip Incident".
FOR THE OTHER SIDE OF THE STORY...
Now we fast forward to what really happened on Monday, February 24, 2014 with the aid of an audio-tape of the entire incident captured luckily by Ms. Montanino.
Ms. Montanino says she was talking to Ms. Pallotta about the recent loss of her father, after she had dropped the chip...and that she told her to leave it for the little critters (mice) and that she and Cheryl continued to have a very congenial conversation with each other even after the chip fell, until her phone rang and she ended the conversation with Ms. Pallotta, when she answered it.
There was no violence...no shock...and no reference to rats at all. She also said Ms. Tomasino who claimed to witness all of the alleged violence left the room, while she was having the taped conversation with Ms. Pallotta.
LET'S GO TO THE AUDIO-TAPE...
The following is a transcript of the audio-tape of the entire incident, submitted to the Court and provided exclusively to Freelance Investigations:
Feb 24, 2014 Monday Pat M is Patricia Montanino
Cheryl P is Cheryl Pallotta
Approx 12:50 pm
I, Patricia Montanino ate lunch in the break room at 700 Yaphank Ave., Yaphank, known as The Board of Elections, with Vincent Laquori. When I was done, I went to the bathroom, then washed my hands and proceeded to the processing room to continue scanning documents from 2011, 2012, 2013 and 2014.
As I approached the room, at the door was a fellow worker Christine Tomasino.
From the tape:
Pat M : Excuse me (said to Christine Tomasino, as she was standing at the doorway talking to Cheryl)
Pat M: (To Cheryl Pallotta) I am sorry for your loss.
(Cheryl was sitting at her desk right next to the door coming in from the hallway)
Comment describing the action by Pat Montanino, this comment is not on the tape:
I then pointed to her shoulder and she looked down, I moved my FINGER to her chin and she dramatically dropped the potato chip she was eating.
Back to the tape comments:
Cheryl P: I was enjoying it.
Pat M: You can’t eat that one-- it’s for the mouse.
(Pat Montanino giggles)
Cheryl P: I’m gonna pick it up.
Pat M: (to Christine and Cheryl) That was for the little critter that comes.
Comment by Pat Montanino describing the action...this comment is not on the tape:
(At this point then Christine left the room and Cheryl leaned down and picked up the chip that fell.)
Back to comments from the tape: (Talking about the recent loss of Cheryl's father)
Pat M: Is everybody back to ahh...
Cheryl P: My house?
Pat M: Yeah.
Cheryl P: No, not really.
Pat M: It took us-- it took my mother a year.
Cheryl P: Yeah, not really... still very fresh.
Pat M: Yeah.
Cheryl P: Because he passed on Valentine’s Day nite and he was supposed to come home with Hospice on Saturday, ahh it was his birthday on Sunday, and…
Pat M: So they kinda get...
Cheryl P: Yeah.
Pat M: Come home with hospice... cause the woman across the street did.
Cheryl P: Yeah.
Pat M: Right, he lasted a week, a week with hospice, um...
Cheryl P: We tried to get him home for about a month with hospice, it just so happened that we were able to get that Saturday.
Pat M: Oh, oh, oh.
Cheryl P: Yeah, we had everything delivered, and, um Thursday, Friday...
(In the back ground supervisor Pat C. can be heard talking) Thursday he was fine, I was talking to him, Friday, he just….
Pat M: It’s always the calm before the storm.
(Pat Montanino's cell phone began ringing)
Cheryl P: (Still talking with Pat Montanino) It was his birthday Sunday--- it will take a long time…
On tape then Pat Montanino's cell phone is ringing...and the conversation with Cheryl ends...
Entire conversation 1:45 seconds
Pat Montanino adds "My cell phone ringing, I left the room to answer it. It was my son calling about his purchase of eye glasses.". (statement not on tape)
WAS THIS RETALIATION FOR HER POLITICAL ACTIVISM IN ISLIP TOWN?
It would appear from this audio-tape that Ms. Pallotta's version of events are not true. It would also appear that the witnesses testimony, of Christine Tomasino, is also not true. The fact that it matches exactly the statement of Ms. Pallotta, that would appear to be false, raises serious questions of collusion and or conspiracy.
So based on a false statement to Police, the Court and the Board of Elections, Ms. Pallotta had Ms. Montanino taken out of the Board of Elections in a Police car, humiliated her in front of the entire Board of Elections and forced her to hire an attorney to defend herself. Ms. Montanino was placed in another room when she went back to work at the Board of Elections, "For her protection and for the protection of the Board.", the Republican Commissioner told her that day, Ms. Montanino said.
Asked why Ms. Pallotta would do this to her, Ms. Montanino could not say for sure, because they had never had any bad words or hard feelings between them prior to this. She said Ms. Pallotta's husband, Gerry Pallotta, may have held a grudge against her when she spoke out on her own political web page against him, as the Democratic Chairman in Islip. This was in 2011, when Gerald Pallotta was appointed by Mr. Nolan as the head of the Committee attempting to get a $71 million dollar bond passed in the Town, when Phil Nolan was the Democratic Town Supervisor. Ms. Montanino said she continuously questioned where the money was going and stated in her web page that there were few details about what work would be done and who would get the contract money and so she fought against it. Eventually, the bond issue was dropped, without the press making the same hoopla they made when the bond was proposed. In fact, no later press reports indicated the bond issue had ever been abandoned.
Ms. Montanino said she believes, "This was simply retaliation for me being a watchdog and advocate for the taxpayers of Islip Town." Ms. Montanino said she also believes the fact that she works a full day at the Board scanning over 2,000 documents with no stress or special effort, while her Board of Election counterparts doing the same job scanned about 20 documents in the same amount of time. This is the reason they want her out of the Board.
"We were over two and a half years behind in the scanning of voter's information. That meant some of these documents were unavailable during the last election cycle. That is unacceptable and I like to work steadily and it is making everyone angry, because they say I am making them look bad." Ms. Montanino said in a recent interview.
On Tuesday, February 25th the day after the alleged "potato chip incident", Ms. Montanino and the members of the Board simultaneously became aware that Ms. Pallotta had filed the police report around 1 PM when Ms. Pallotta submitted the report to the Board and they immediately informed Ms. Montanino at her home, she said.
That morning, according to Ms. Montanino, Eileen Knoble, a cousin of Suffolk County Democratic leader Richie Schaffer, who works at the Board of Elections, had become very hostile toward Ms. Montanino in the morning, because she had wanted Ms. Pallotta to scan documents that day--and not her. Eileen Knoble is Ms. Pallotta's direct supervisor. Ms. Montanino said she was only doing what her own supervisor had told her to do as the scanning process was already over two and a half years behind.
Ms. Montanino said she has raised another ongoing issue with some Board employees who were making copies of illegible voter signatures. Ms. Montanino said the signatures were so light they couldn't be read properly, so she made the images darker by adjusting the scanner--a simple procedure. This also upset the Democratic workers in the room, she noted, but she could not say why this should have bothered them so much.
"If I did not have the presence of mind to document the incident, who knows how many more people would have come forward to lie about the alleged incident against me? I only protected myself because I felt threatened by the way I had been spoken to and treated by the Democratic Supervisor at the Board of Elections for quite some time." Ms. Montanino said.
This is not the first time false accusations have been leveled against the Town activist...those charges were dismissed without merit and these are expected to be dismissed as well, based on the evidence submitted to the court, Ms. Montanino said.
Editor's note: If it is proved true (as it would appear to be when listening to the audio-tape of a benign and seemingly caring conversation between the two)-- that Ms. Pallotta has filed a false police report and conspired with another employee to lie and speak against Ms. Montanino, then she should be charged with filing a false police report, filing a false complaint and filing a false instrument to the court at the very least.
Retaliation against people who have the courage to speak out against voter fraud and waste of taxpayer dollars should be met with harsh penalties against the perpetrators.
A call and message left at the home of the Pallotta family for comment, was not answered at time of publication. After two calls to the Board of Elections for comment, the Republican Commissioner, Wayne Roger's Office diverted Freelance Investigations to the Suffolk County Attorney's Office, for any comment regarding the situation. Gail Lolif, the Suffolk County Attorney, assigned to the case said neither the County Attorney's Office, nor anyone at The Suffolk County Board of Elections would be able to comment on what is an open and ongoing investigation. Any future comments by any of the parties involved would be welcomed and added to this article immediately.