Long Beach may respond to the District Attorney, but maybe not
A letter from the Nassau District Attorney this week requesting information about excessive separation payments that occurred under former City Manager Jack Schnirman raises a familiar question.
Who runs Long Beach? Is it the elected City Council or the city manager hired by the City Council?
Christine Maloney, chief of the Public Corruption Bureau under Nassau District Attorney Madeline Singas, wrote council members Tuesday that the office cannot conclude its investigation into the payments unless it knows "what, if any, guidance was provided to the city and its employees by members of its legal staff."
Since April, 2018, Singas and the U.S. Attorney's office have been investigating outsized separation and "drawdown" payments made to current and former employees, including Schnirman, who left on Jan. 1, 2018 to become Nassau's elected county comptroller.
A draft audit from State Comptroller Thomas DiNapoli in August reported that more than $500,000 in payments for unpaid leave to ten mostly management employees exceeded limits set in the city code, labor agreements, or, in the case of Schnirman, his employment contract. Schnirman, who received $108,000 when he left Long Beach, returned nearly $53,000 after the comptroller's report became public.
Schnirman said he had depended city staff to calculate what he was owed. City staff told the comptroller's office that the payments were based on unwritten past practices.
"Due to constraints of Attorney-Client privilege...we cannot obtain the documentary or testimonial evidence of attorneys who may have provided such advice on this subject matter 'unless the client (City of Long Beach) waives the privilege,'" Moroney wrote. "...We request that you consider waiving the City's attorney-client privilege as to any advice given by attorneys, employed by the City, as to separation payouts."
Some council members want to address the response to Singas at next Tuesday's City Council meeting.
But Acting Corporation Council Greg Kalnitsky wrote Council members Wednesday that the city had previously suggested to Singas' office that it get a court order for the information. Otherwise, he warned, providing a "blanket waiver" of attorney-client privilege would require the city to disclose confidential information in unrelated lawsuits, which could result in "massive liability."
Obviously, that's something to consider. But Maloney didn't ask for a blanket waiver. She asked for a waiver specific to internal legal advice about separation payments.
But then Kalnitsky added in a footnote, "While the City Council is clearly the legislative/governing body of the city, it is unclear whether the City Council alone may waive the city's attorney-client privilege. My inclination is to indicate that such a waiver may also require the consent of the City Manager, but I would require further research to confirm same."
The city manager, who can be hired or fired by the City Council, can overrule a vote of the City Council? When do employees get to overrule the people who hired them, generally known as their bosses?
Don't forget that the former city manager and two former acting city managers were cited by the state comptroller for receiving payments in excess of the city code and contracts. If any of them were still the city manager, would they have to give their consent before the city could provide information to legal authorities about their excess payments?
Again, who runs Long Beach?
MORE TO COME
Who runs Long Beach? Is it the elected City Council or the city manager hired by the City Council?
Christine Maloney, chief of the Public Corruption Bureau under Nassau District Attorney Madeline Singas, wrote council members Tuesday that the office cannot conclude its investigation into the payments unless it knows "what, if any, guidance was provided to the city and its employees by members of its legal staff."
Since April, 2018, Singas and the U.S. Attorney's office have been investigating outsized separation and "drawdown" payments made to current and former employees, including Schnirman, who left on Jan. 1, 2018 to become Nassau's elected county comptroller.
A draft audit from State Comptroller Thomas DiNapoli in August reported that more than $500,000 in payments for unpaid leave to ten mostly management employees exceeded limits set in the city code, labor agreements, or, in the case of Schnirman, his employment contract. Schnirman, who received $108,000 when he left Long Beach, returned nearly $53,000 after the comptroller's report became public.
Schnirman said he had depended city staff to calculate what he was owed. City staff told the comptroller's office that the payments were based on unwritten past practices.
"Due to constraints of Attorney-Client privilege...we cannot obtain the documentary or testimonial evidence of attorneys who may have provided such advice on this subject matter 'unless the client (City of Long Beach) waives the privilege,'" Moroney wrote. "...We request that you consider waiving the City's attorney-client privilege as to any advice given by attorneys, employed by the City, as to separation payouts."
Some council members want to address the response to Singas at next Tuesday's City Council meeting.
But Acting Corporation Council Greg Kalnitsky wrote Council members Wednesday that the city had previously suggested to Singas' office that it get a court order for the information. Otherwise, he warned, providing a "blanket waiver" of attorney-client privilege would require the city to disclose confidential information in unrelated lawsuits, which could result in "massive liability."
Obviously, that's something to consider. But Maloney didn't ask for a blanket waiver. She asked for a waiver specific to internal legal advice about separation payments.
But then Kalnitsky added in a footnote, "While the City Council is clearly the legislative/governing body of the city, it is unclear whether the City Council alone may waive the city's attorney-client privilege. My inclination is to indicate that such a waiver may also require the consent of the City Manager, but I would require further research to confirm same."
The city manager, who can be hired or fired by the City Council, can overrule a vote of the City Council? When do employees get to overrule the people who hired them, generally known as their bosses?
Don't forget that the former city manager and two former acting city managers were cited by the state comptroller for receiving payments in excess of the city code and contracts. If any of them were still the city manager, would they have to give their consent before the city could provide information to legal authorities about their excess payments?
Again, who runs Long Beach?
MORE TO COME
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