Schnirman wants trial moved because of LB Councilman

 

Nassau Comptroller Jack Schnirman

 

Nassau Comptroller Jack Schnirman, a former Long Beach city manager, has asked a Supreme Court judge to move his trial for alleged fraud, conspiracy and breach of duty out of the county.

Not because of publicity over his case:  Long Beach sued its former city manager in July for allegedly violating his legal duties by approving excessive separation and "drawdown" payments to some employees while accepting more in termination pay than allowed by city charter or his work contract.

After a state audit, Schnirman last year returned $53,000 of the $108,000 in termination pay he received when he left Long Beach. He took office as the county's elected fiscal watchdog in Jan. 2018. 

Numerous news stories were written and aired about Schnirman's severance and the large payouts he approved to mostly members of his management team.

But Schnirman wants his civil trial moved because, he says, Long Beach Councilman Scott Mandel, a fellow Democrat, was "the driving force" behind the litigation. 

And Mandel works for the court system.

Therefore, Schnirman argues in his own affadavit and in a memo from his lawyers, which include Ken Gartner,  the trial must be moved.

 "A change of venue is necessary to avoid the 'appearance of impropriety' because Long Beach City Council member Scott Mandel is a longtime judicial employee of this court," the memo states.

It notes that Mandel worked as a principal law clerk to former Supreme Court justice Hope Zimmerman before she retired at the end of last year and is currently employed as an attorney in the Nassau Supreme Court's law department.

"In light of Mr. Mandel's extensive connections to this court, it would be inappropriate for the case to proceed here," the memo states.

In its lawsuit, Long Beach is seeking no less than $1.5 million plus punitive damages from Schnirman, who served as city manager from 2012 through 2017.

Long Beach filed a separate lawsuit against former Corporation Counsel Rob Agostisi, who served briefly as acting city manager after Schnirman left, also alleging fraud, conspiracy and breach of duty.

The city is seeking no less than $889,985 from Agostisi, who received a $128,457 payment approved by Schnirman.

Agostisi filed his own affidavit requesting a change in venue, citing Mandel and "political retribution" as the forces behind the litigation.

Schnirman wants the case moved to New York City.  Agostisi is asking that it be heard in Queens.

Schnirman's affidavit asking for the change in venue was posted Wednesday on the New York court website. It was no longer available today, with the notice "returned for correction."

Schnirman pretty much threw Agostisi under the bus in his now-withdrawn affadavit, by saying he depended upon Agostisi's opinions. His lawyers did the same  thing in a memo of law.

The memo states: "Mr. Schnirman is not an attorney...He relied on the advice of the City's Corporation Council Robert Agostisi and his predecessor, on legal matters, such as interpreting the terms of employment agreements and related provisions of the City charter, and acted in accordance with their advice on all matters relating to the separation payments."

Both Schnirman and Agostisi maintain that Mandel, one of five city council members, is a driving force behind the litigation. Current Council president John Bendo was the first in April 2018 to publicly question the separation payments.

Outraged residents called for an audit and an investigation. More than a year later, State Comptroller Thomas DiNapoli released reports that found that Schnirman had signed off on  $6 million in separation payments for unused time to 43 city officer and employees without city council approval. The audit said the total included $513,925 in payments that appeared to violate city code limits to ten individuals.

The audit also found Schnirman, without authorization, approved  $229,494 in drawdown payments for unused leave to eight officers and employees who continued working.

The audit recommended the city attempt to recoup the excessive payments.

In a companion report, auditors also found the city had covered millions of dollars in budget deficits by borrowing through the years.

Both Agostisi and Schnirman's lawyers note that Mandel and Bendo publicly called for the city in Sept. 2019 to hire an outside counsel to explore recouping the excessive payouts reported by the state comptroller.

The two also called for termination of a former federal prosecutor secretly hired by city management to investigate the payouts. Three members of the city council say they never approved the hiring of Anthony Capozzolo and did not know about his Long Beach employment for a year after he began working.

Agostisi notes that they called for his termination even though he had already given notice.

Agostisi points out that nearly 17 years earlier, from Sept. 2000 to Jan. 2003, Mandel had worked for the law firm then hired by the council, Ingerman Smith.

While Mandel was absent for one of two council votes authorizing litigation against unnamed employees, presumably Schnirman and Agostisi, "it does not alter the fact that his actions (including votes) led to the authorization of the instant litigation. Moreover, the authorization was effectuated by a legislative body of which he is a  member," Agostisi argues in his affidavit.

Mandel declined comment on the allegations.