If you want to see the whopper look at the numbers in
Butler v. Nassau Regional Off-Track Betting Corporation et al
| Plaintiff: | Teresa Butler |
|---|---|
| Defendant: | Nassau Regional Off-Track Betting Corporation, Board of Trustees of Nassau Regional Off-Track Betting Corporation, Nassau County Democratic Committee and Jay Jacobs |
| Case Number: | 2:2007cv01472 |
|---|---|
| Filed: | April 9, 2007 |
| Court: | New York Eastern District Court |
|---|---|
| Office: | Central Islip Office |
| County: | Nassau |
| Presiding Judge: | Denis R. Hurley |
|---|---|
| Referring Judge: | Arlene R. Lindsay |
| Nature of Suit: | Civil Rights: Other |
|---|---|
| Cause of Action: | 42:1983 Civil Rights Act |
| Jury Demanded By: | Plaintiff |
and see the documents "protected" by the PROTECTIVE ORDER.
Nassau's lawsuit payouts total $101.5M over 8-year period -- nearly three times Suffolk's $37.4M
February 14, 2015
by PAUL LAROCCO
/ paul.larocco@newsday.com
Despite that difference, current and former county officials say there's no single factor to blame, though others question the impact of Nassau's legal defense strategies.
The payments in Nassau, totaling $101.5 million from 2006 through 2013, cover more than 1,500 cases filed and litigated during both Democratic and Republican administrations, county attorney's records show.
The Nassau cases, ranging from minor slip-and-falls to allegations of employee discrimination and retaliation, police misconduct and life-altering injuries on county roadways, led to 13 payments of $1 million or more, including three of at least $13 million. Suffolk's largest single payout: $3 million.
Newsday analyzed 2,709 individual payments in Nassau. It excluded nearly 200,000 entries, totaling $250 million, from property tax grievances, as Suffolk does not have a similar county assessment system.
The counties do have similar-sized budgets and workforces, but circumstances of particular cases can cause wide swings in payouts, legal experts said.
"There are just a million variables," said Ray Brescia, an Albany Law School professor and director of its Government Law Center. "It hinges on the assessment of the strength of each case, and potential litigation costs. You could also have a government entity that just has a lesser appetite to litigate a matter, and they'd much rather pay a settlement than have the case drag out in court."
Critics fault outsourcing
Some critics argue that Nassau, which in recent years has more than tripled the amount it spends on outsourcing its legal defense work, should rely more on staff litigators with a higher incentive to limit damages.
And to stop claims before they're filed, observers say the county could better train its employees over issues such as harassment and whistle-blowing.
"Proper training doesn't just mean putting them in a room and showing a video," said Rick Ostrove, a Carle Place attorney who specializes in labor and civil rights cases. "It means really living it, caring about compliance. Not only would they have less lawsuits and payouts, they'd ultimately have a more efficient, effective workplace."
Nassau's largest judgments or settlements during the period Newsday reviewed were:
$15 million in 2010 to Thomas Hartmann, who lost his leg when struck by an unmarked Nassau police cruiser in 2004.
$13.6 million in 2013 to the Metropolitan Transportation Authority to end a yearslong fight over repayment of money the agency had loaned Nassau leaders during the county budget crisis of the late 1990s.
$13.1 million in 2008 to Merryl Kihl, who broke her neck in a 1995 accident on a curving, rain-slicked stretch of Quaker Meeting House Road in Bethpage that had been paved with a later-banned type of stone.
$5.2 million -- including two payments of $2.5 million each -- in 2012 to the family of Jo'Anna Bird, who was killed by her ex-boyfriend in 2009, after Nassau police officers did not enforce protective orders.
$4 million in 2010 to Georgina Morgenstern, a county planning employee who alleged that she was fired in 2003 without cause, after accusing some Democratic administration officials of conducting political activity on county time.
The county attorney's office under current Republican County Executive Edward Mangano has settled many larger cases that began during the administration of his Democratic predecessor, Thomas Suozzi, who served from 2002 to 2009. Suozzi's legal staff also handled many cases dating to the tenure of Republican Thomas Gulotta, county executive from 1987 to 2001.
"It's very difficult to throw one blanket over the whole thing," said John Ciampoli, county attorney from 2010 to 2013, during Mangano's first term. He said lawyers for the county can't control, for example, whether someone has an accident. "There's a certain random element to it," he said.
The county pays about 30 percent of its legal settlements and judgments -- and almost all of the major ones -- with borrowed money. The rest are paid with operating funds.
The Nassau Interim Finance Authority, the county's state fiscal control board, threw a spotlight on the borrowing issue last month when it blocked $3.2 million in bonds to pay 2014 judgments and settlements.
NIFA had already approved $8 million in bonds for that purpose last year, but at its January meeting accused the county of choosing "not to meet its obligations" by borrowing instead of using operating funds.
"The county needs to take responsibility," NIFA chairman Jon Kaiman said at the meeting.
Nassau has struggled with budget deficits, ending 2014 with a $70 million shortfall in sales tax revenue. An additional $30 million hole opened this year with the recent repeal of school-zone speed cameras.
County Attorney Carnell Foskey said Nassau plans to stop borrowing to pay its settlements and judgments by 2018, with the help of a dedicated fund that will be created this year and built up.
He said he couldn't comment on Suffolk's lower total settlement and judgment payments, "as too many variables exist." But he blamed cases that started before Mangano took office for helping to inflate Nassau's payout totals in recent years.
'Costly consequences'
Nassau's payments to end suits rose from a total of $36.9 million in the four-year period from 2006 through 2009 to $64.6 million from 2010 to 2013, the county records show.
"The prior administration's policies had costly consequences that resulted in lawsuits -- and with poor outcomes for taxpayers," Foskey said last week.
Suozzi, however, blamed Mangano for outsourcing more defense work instead of relying on the county attorney's office.
"After five years, it's time for these guys to take responsibility for their policy decisions -- which, in this particular instance, includes a conscious decision to decimate the county attorney's office and farm the work out to outside firms," Suozzi said in an interview.
Newsday reported last year that Nassau's spending on outside legal counsel has spiked under Mangano, from $1 million in 2009 to $5 million in 2013. Politically connected law firms were top recipients. They included a firm where Mangano used to work and another where Nassau GOP leader Joseph Mondello is of counsel.
Mangano says outside firms often bring more expertise for complex cases, noting that he has saved taxpayer money by cutting deputy county attorney ranks, from 108 in 2009 to 73. Records show, however, that Nassau's total legal costs -- outside contracts plus staff lawyers' salaries and benefits -- were nearly identical in 2009 ($12.6 million) and 2013 ($13 million).
Suffolk, with 52 in-house lawyers, spent $2 million on outside counsel in 2013. Officials in the administration of County Executive Steve Bellone, a Democrat who took office in 2012, declined to comment on the differences between Suffolk and Nassau's payments.
Former Suffolk County Executive Steve Levy, a Democrat-turned-Republican who served from 2004 to 2011, said Suffolk's reliance on county attorneys has kept payouts down.
"We staffed the office with a great number of seasoned litigators who had an understanding that it's our county money they'd be settling with," Levy said. "These aren't guys from the political clubhouse. We made that office very professional . . . and it's continued" under Bellone's current county attorney, Dennis Brown.
Clayton Gillette, a New York University School of Law professor who has studied local government law, agreed that law firms working for municipalities may not have as many incentives to keep costs down.
"If you're the city attorney and you're employed by the city, then one of your objectives is to minimize expenses to the city. You want to drive a hard bargain because you're concerned about your budget," Gillette said. "With the private attorneys, what is their incentive?"
Gillette said privatization could be cost-effective if many firms were competing for work, prompting them to offer the best rates and strive for results most favorable to government.
Frayda Bluestein, a public law and government professor at the University of North Carolina at Chapel Hill, said she had no data on the relative cost of in-house counsel compared with using outside firms, but said, "litigation is a sufficiently discrete expertise that there is value in contracting with attorneys who do it all the time."
Larger municipalities, though, "can have an in-house litigation team that can develop those skills," Bluestein said.
Early assessments
Foskey said the Nassau County attorney's office conducts an "early assessment of the merits of the case and potential liability" to determine strategy. "This could include partnering with special counsel for their expertise, standing in the legal community and personnel," he said.
Nassau also "seeks to limit costs of claims by proactively counseling county agencies about how to avoid potential lawsuits," Foskey said. That can include training employees on how to handle disputes with co-workers or recommending repairs to portions of county properties that could cause injuries to residents, officials said.
Ostrove, the labor attorney, said that both Nassau and Suffolk -- and municipalities in general -- don't sufficiently encourage whistle-blowing. He said a lack of protection in state law is a primary reason.
"Employees are scared to bring problems to their supervisors because they have very limited protections," he said.
Besides the $4 million Morgenstern payment, Nassau paid $1.7 million in 2011 to three female police detectives who said they were subjected to years of sexual harassment. Suffolk paid $1 million in 2010 to six female police officers who had accused the department of discriminating against them during their pregnancies.
Ciampoli said his office also attempted to work with Nassau departments to prevent suits.
"But that's difficult to do because we live in such a litigious society," he said. "So the county attorney's office is there to pick things up. You're like a catcher. The pitcher throws you the ball and you've got to catch it. It doesn't matter if it's in the dirt or over your head."
TOP PAYOUTS IN NASSAU, 2006-2013
1. THOMAS HARTMANN
Lost his leg after being struck by an unmarked Nassau police vehicle as officers attempted arrest.
Payment amount: $15 million
Year of suit: 2004
Year of payment: 2010
2. METROPOLITAN TRANSIT AUTHORITY
MTA sued Nassau to recoup payments it had made to county in 1996 to help it plug budget.
Payment amount: $13,636,682.12
Year of suit: 2008
Year of payment: 2013
3. MERRYL KIHL
Badly injured when the car she was riding in ran off a dangerous section of Quaker Meeting House Road in Bethpage known as "dead man's curve."
Payment amount: $13.05 million
Year of suit: 1995
Year of payment: 2008
TOP PAYOUTS IN SUFFOLK, 2006-2013
1. KIMBERLY HAEG
Claimed a roadway defect helped cause an accident on County Road 48 in Southold that left her with serious injuries.
Payment amount: $3 million
Year of suit: 2004
Year of payment: 2011
2. SCOTT ERIKSEN
Died after injuries suffered when a sheriff's deputy threw him against a bench while in a holding cell.
Payment amount: $3 million
Year of suit: 2005
Year of payment: 2011
3. MELISSA MARTINS
Medical malpractice claim: circumstances unavailable
Payment amount: $2.1 million
Year of suit: 1998
Year of payment: 2007
NOTE: Some cases may have resulted in a larger total judgment or settlement, with the above-listed payment being one of several.
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