Officials: Town settled to cut flow of legal fees
Freehold officials have harsh words in wake of case with day laborers
BY CLARE MARIE CELANO
Staff Writer
FREEHOLD - A federal lawsuit that was filed against the borough in 2003 has been settled, but according to Mayor Michael Wilson, "there are no winners in this situation."
A resolution was unanimously passed at the Borough Council's Nov. 13 meeting to authorize the settlement of the lawsuit that had been filed by the Monmouth County Residents for Immigrants Rights and other parties.
The lawsuit alleged that day laborers, many of whom are Latino immigrants and some of whom are in the United States illegally, were denied the right to solicit employment in public places in Freehold and were subjected to discriminatory law enforcement and housing code enforcement.
In his remarks at the meeting, Wilson did not conceal the emotions he has lived with since the lawsuit was initiated. The consensus of the council members who sat before a good sized audience of meeting attendees appeared to be that enough was enough and that it was time to bring the matter to a conclusion.
The lawsuit could have gone on for 10 more years, according to council President Sharon Shutzer, who said at this point she wanted to do what was in the best interest of the town. She said in her opinion, settling the lawsuit and stopping the legal fees from mounting was in the best interest of Freehold.
Shutzer told the audience members she received a call from a reporter from The New York Times on Nov. 13. She said the reporter asked her how she felt about losing the lawsuit.
"I was stunned to hear her say that," Shutzer said. "This is not a loss for Freehold Borough. If I felt we had lost then I would have kept on fighting. I offered this resolution tonight because it incenses me that the only people really benefiting from this case are the legal counsel, so to settle it is, I believe, in the best interest of the town."
After the council approved the resolution settling the case, Wilson said, "the people who most benefited from this lawsuit are the plaintiffs' lawyers, who received eight times more than the fund established for the clients they supposedly represented." He said there had been a lot of "grandstanding by certain self-proclaimed advocates who obviously care more for headlines than in building better relations in the community.
"I found the plaintiffs' statement [released to the media] to be inflammatory and self-serving as well as factually incorrect. The truth of the matter is that the plaintiffs got nothing more than that to which anyone and everyone in this community is entitled to," the mayor said. "They wanted a special place to gather to look for work. They didn't get it. They wanted to stop our attempts to enforce our housing code. They didn't get it."
Wilson explained that instead, the borough's representatives used the process to develop enhanced protocols for housing inspections that will protect the health and safety of residents.
"They wanted to stop our police force from enforcing the law," Wilson said. "They didn't get it."
He said Freehold has now established a better method of evenly and fairly enforcing all laws, against all violators regardless of their ethnicity.
"Day laborers and the contractors who pick them up must abide by the law just as everyone else. And the borough will continue to vigorously enforce those laws. Nothing in the agreement limits the borough from lawfully enforcing all statutes and codes," Wilson said. "So when all is said and done, the borough remains steadfast in its efforts to protect the quality of life for all of its residents. We will not be thwarted from carrying out our duty to enforce the law against all, for the protection of all."
Councilman Marc Le Vine said, "This vote [to settle the case] has reviled me and has made me nauseous. The issue that illegal immigrants have the right to sue a country that they have invaded ... This [decision to settle] was nothing more than a calculated business decision where I felt it was time to cut our losses. We are not going to allow legal counsel to rack up any more money."
Le Vine said officials must continue to improve the quality of life in the borough, then added, "This case be d**ned. We'll steamroll over this and build a town where young families want to raise their children, one that will attract more businesses so people will come from other towns to do business here and encourage people to spend money here so that this town gets what it deserves. We will win this war by using prosperity as our tool."
Former New Jersey Supreme Court Justice Daniel O'Hern was appointed by U.S. District Judge Anne E. Thompson to facilitate an agreement between the parties. The process took nearly three years to complete.
Freehold Borough was represented by Borough Attorney Kerry Higgins and also secured outside legal representation from its insurance carrier in the person of attorney Robert Podvey.
According to a press release issued by the Monmouth County Residents for Immigrants Rights, the agreement will be monitored for two years by a court appointed monitor with the court retaining jurisdiction for the duration of the agreement.
According to the terms of the agreement, the borough will not interfere with the lawful use of public property including the pick-up and discharge of day laborers. The borough will not unlawfully hinder the exercise of free speech including the solicitation of employment by day laborers. Also, no residential code enforcement inspections will take place without a resident being advised of his or her rights and without informed consent being given by the resident. A police officer will not accompany code enforcers on inspections. The borough will provide the plaintiffs' attorneys with civil complaints resulting from code inspections. A compliance officer will provide the plaintiffs' attorneys through the court appointed monitor with reports of compliance to this agreement.
In addition, according to the press release, the borough has agreed to install video recorders in its patrol cars and will retain all data pertaining to racial profiling and with interference with the lawful use of public property. It will also retain records on the use of dogs and non-vehicular video recording. The plaintiffs' attorneys have the right to inspect and copy any documents relevant to compliance with this agreement.
According to the press release, the borough agrees to reimburse the fines of those Latinos who were convicted of loitering and/or officer's discretion violations dating back to Jan. 1, 2002.
The issue of officer's discretion being the basis for the issuance of summonses was the object of controversy among the parties who filed the lawsuit. The lawsuit stated that a violation known as officer's discretion does not exist in federal, state or local law, and if it did it would be "patently unconstitutional."
Police said the officer's discretion summons allowed a resolution to be reached in municipal court that would not leave a person with a criminal record. Generally, it took the place of a disorderly persons summons, police said.
Wilson said the borough had an old loitering ordinance on the books. When the Supreme Court deemed it unconstitutional, the borough repealed the ordinance that provided for the officer's discretion violation.
The borough also agrees to reimburse fines for those convicted in housing code inspections, other than violations for overcrowding, where no opportunity was given to correct the code violation. The borough has also agreed to reimburse fines for convictions made on the basis of anonymous complaints not founded on articulable suspicion.
According to the press release, the borough will also agree to establish a Latino Persons Fund for $33,000 for fine reimbursement. In addition, the borough's insurance company will pay the plaintiffs' attorney fees of $245,000.
It could not be immediately determined how much Freehold Borough's legal fees amounted to in this case or what the impact on taxpayers will be to litigate the case.
O'Hern issued a statement in which he said the settlement seeks to respect the rights and interests of all of the residents of Freehold, including the Latino residents and workers in the community. He said the workers agree to respect appropriate municipal codes concerning public safety.
"The provision for a muster zone [where day laborers congregate and seek employment as any number of prospective employers approach them] is an issue on which the parties can only agree to disagree," O'Hern said. "There is no requirement of state or federal law that a municipality must provide a muster zone. Had the case gone to trial, the federal court could not have ordered the municipality to provide a muster zone, nor could it have ordered
to allow the use of its property" for a muster zone.
According to O'Hern, the parties also developed Housing Code Enforcement Protocols, including a provision stating that no residential code enforcement inspection shall take place without the informed consent of the resident.
"The case was complex and constitutionally difficult," O'Hern said. "A trial would have been long, time-consuming and could have resulted in even greater legal fees for the borough even were it to succeed in winning many of the claims asserted."
O'Hern wrote that the parties in the lawsuit are to be commended.
"Immigration reform is a national issue. Persons who have entered this country without documentation are nonetheless persons entitled to the protections of the Constitution and the laws of the United States and this state. We have seen other communities that have reacted to this social migration with repression and outright harassment. Freehold is to be commended for being firm but fair in its attempts to mediate these differences. The workers are to be commended for recognizing that they owe to the community the same duties as do all other residents, respect for properly applicable ordinances governing housing code requirements and respect for the property rights of others."
Cecelia Reynolds, publisher of the local Spanish language newspaper Nosotros and a member of the Freehold Borough Human Relations Committee, attended the Nov. 13 council meeting and said she was disappointed at the tone of the meeting.
"I was hoping we would have a different approach from now on regarding the Latino community," Reynolds said. "I was disappointed to hear the mayor speak in a such a despicable, arrogant voice. Regardless of who won or who is right or wrong in this case, his job as mayor is to inform, not to express his personal feelings as he has done since all this started.
"We need to change the mentality of this town. I have seen different approaches from public officials in other towns that work better. It is not in our hands to change the federal laws regarding immigration, but those who represent us must understand that we all need the immigrant work force," Reynolds said. "Everyone benefits at some point from this work force so why not look at it from a different approach? They don't realize how much we are needed here. They want to deny it. We can serve you in restaurants and work on your lawns, but as soon as we've done our jobs you want us to melt into the ground and go away so you cannot see us anymore."
A press release issued by the Latino Leadership Alliance of New Jersey praised the settlement between the immigrants' advocates and the borough.
"It is time to put this regrettable set of circumstances behind us and for the officials of Freehold Borough to embrace its growing Latino population," said Frank Argote-Freyre, director of the Monmouth County chapter of the alliance. "The administration of Mayor Michael Wilson launched a misguided campaign against the immigrant community three years ago. Hopefully, this settlement makes it clear the Latino community is here to stay.
"The Latino community intends to buy homes in the borough and intends to continue to establish new stores in the borough," he said. "It is our hometown, Mayor Wilson, and the Borough Council needs to come to terms with that reality and begin to represent all the residents of the borough."
Lazaro Cardenas, deputy director of the alliance's Monmouth County chapter, said he believes the litigation was the result of the unwillingness of borough officials to converse and negotiate with its residents.