HIGHTSTOWN: Two council members push for greater legal protection

By Doug Carman, Staff Writer
   HIGHTSTOWN — Legally, if someone sues a council or board member based on an official action that member has taken, the borough isn’t obligated to pay for that member’s defense, Councilman Dimitri Musing said Monday evening.
   Mr. Musing said he recently discovered this after questioning Borough Attorney Fred Raffetto, compelling him and fellow council member Isabel McGinty to put together a resolution that they said would protect themselves and other members from personal liability. However, the remaining council members opposed putting the resolution on the agenda in a 4-2 vote, causing Mr. Musing to leave his seat at the council dais and join the audience after he gave a statement that indicated he was willing to “consider all of the options that are available to me relating to my continued participation as a council member” if he didn’t get the legal protection he was seeking.
   ”Although I understand that there may be insurance coverage available, I am not satisfied that this provides sufficient assurances for me to risk my own well-being, and that of my family, against what may be frivolous lawsuits,” Mr. Musing said in a statement after a second, 4-1 vote on the original agenda. Mr. Musing abstained on the second vote, and Ms. McGinty opposed the omission of the resolution.
   ”Without assurances that I am covered, and that I am not hanging out on a limb personally exposed, then I am simply not willing to risk my family’s financial well-being in order to perform work as a public official,” Mr. Musing said.
   When Ms. McGinty and Mr. Musing tried to add the resolution on the agenda, council members Larry Quattrone and Skye Gilmartin objected, saying neither had enough time to consider it that evening. The resolution was drafted by Mr. Raffetto the day of the meeting.
   ”I’d like to do more research on it,” Mr. Quattrone said.
   Mr. Raffetto told the council that Mr. Musing’s view of the law was accurate. New Jersey’s law states that local governments can fund the defense of and indemnify its officials against lawsuits over their official actions at the governments’ discretion, but aren’t required to do so.
   Mr. Raffetto told the council that Hightstown has an insurance policy that covers the council members and members of the borough’s boards. Though the resolution Mr. Musing advocated wasn’t made available Monday evening, the attorney told the council that it effectively called for “a measure to provide secondary coverage” if the insurer declined coverage for whatever reason.
   Mr. Raffetto said Wednesday that the borough is covered by the Mid-Jersey Municipal Joint Insurance Fund, which also covers West Windsor, Robbinsville, Mercer County, Princeton Borough, Hopewell, Pennington and Lawrence. He said he asked Mayor Steve Kirson to invite a representative from the insurance fund to explain the insurance policy at the next council meeting, since “this issue has become an issue of great importance” to the Borough Council members, board members and employees alike.
   Mr. Raffetto said the insurance policy was several hundred pages long and was “unwieldy,” but he said he knew it protected all borough employees in lawsuits against them stemming from their public service.
   ”In our policy, the policy defines an insured, not only as the public entity but it includes the borough’s lawfully elected, appointed or employed public officials or members, past present and future, as well as the borough’s employees,” Mr. Raffetto said.
   Mr. Musing said in his statement Monday that it wasn’t enough.
   Mr. Musing said Tuesday that he questioned Mr. Raffetto shortly after he began his term in 2010 on the protections the borough would give him, though he assumed he was protected from lawsuits stemming from his actions as a council member by the borough.
   After Mr. Musing’s statement, a Hightstown Parks and Recreation board member also showed concern, asking the council during Monday’s meeting to send him an e-mail clarifying how he would be protected. Mr. Musing said some others approached him privately on it as well.
   ”I think everyone who operated in a public capacity, whether it’s the governing body or board members or committee members, have always assumed that you had that coverage in place. So obviously, when you explain that we don’t have that ordinance of indemnification in place … it’s chilling,” Mr. Musing said Tuesday.
   The prospects of a council member getting personally sued for his or her official actions is occasionally brought up throughout New Jersey, though most municipalities offer varying degrees of protection and indemnification for their public servants, said William Dressel, the executive director of the New Jersey League of Municipalities.
   ”There’s lots of circumstances there that may vary from town to town, but it’s my understanding that in most instances that I’m aware of … the town will indemnify local officials for official actions,” Mr. Dressel said.
   He could not name specific examples where a plaintiff successfully sued for monetary damages against a public servant based on a government action, but Mr. Dressel said “there have been instances” when one has been able to do so.