Complaint- Public-Private Civil Rights Violations - Color of Law Conspiracy-Federal Civil Rights - Glacken v. Village of Freeport - California Supreme Court Justice Leondra R. Kruger,

Case 2:09-cv-04832-DRH-AKT Document 1 Filed 11/05/09 Page 1 of 24 PageID #: 1

FILF=I) Edwards & Edwards, Esqs. Attorneys for Plaintiff

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336 South Ocean Avenue Post Office Box 191 * NOV o 5 2009 * Freeport, New York 11520 Attention: Harrison J. Edwards

LONG ISLAND orf!IC!i

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

---------------------------------------------------------------C-Vx - 0 9 4 B 3 2 WILLIAM F. GLACKEN,

(_ 4) Civil Action No. Plaintiff,

-against-

THE INCORPORATED VILLAGE OF FREEPORT, ANDREW HARDWICK, in his official capacity as Mayor of the Incorporated Village of Freeport and individually, the BOARD OF TRUSTEES FOR THE INCORPORATED VILLAGE OF FREEPORT, HOWARD COL TON, individually and in his official capacity as Village Attorney for the Incorporated Village of Freeport, DENNIS WARREN, individually, "JOHN DOE #111, "JOHN DOE #2" , JOHN DOE "3", "JANE DOE #1 " , and "JANE DOE #2".

Defendants.

------------------------------------------------------------------------x

COMPLAINT

Nature of Action

HURLEY TOMLltsor:

JURY TRIAL DEMANDED

1. Plaintiff, William F. Glacken, brings this civil action pursuant to 42 U.S.C.

1983, alleging the deprivation of his First Amendment, Fifth Amendment and Fourteenth

Amendment rights under the United States Constitution by the defendants in retaliation

for plaintiff's published opinion and criticism of defendants Hardwick, Colton and Warren's

PatCJBNN-Yel


malfeasance concerning the payment of $3,500,000. 00 of taxpayer funds to a favored

developer to settle baseless litigation against the Incorporated Village of Freeport. This

action arises under the First, Fifth and Fourteenth Amendments of the United States

Constitution and 42 U.S. C. 1983 and 1988, and New York's Public Officers Law 18(3)

and (4), adopted by Freeport at Chapter 130-5, et seq. of the Freeport Code.

Jurisdiction and Venue

2. Plaintiff brings this action pursuant to, inter alia, 42 U.S.C. 1983, et seq.

This Court has original jurisdiction over this action pursuant to U.S. Code 1331 and

1343. To the extent plaintiff's claims arise under New York law, the action is properly

before the Court under the Court's pendant jurisdiction pursuant to 28 U.S.C. 1367.

3. The unlawful actions alleged hereinbelow occurred in Nassau County, New

York and, therefore, venue is proper in the Eastern District of New York pursuant to 28

U.S.C. 1391 (b) .

The Parties

4. Plaintiff, William F. Glacken (Glacken) , is a citizen of the United States, and

resides in Freeport, Nassau County, New York.

5. Plaintiff was, between April 7, 1997 and April 6, 2009, the full-time Mayor

of the Incorporated Village of Freeport and, as such, during said period, was a public

officer and employee of Freeport continuously and without interruption until 12:00 noon on

April 6, 2009, at which time plaintiff's term expired.

2


6. Plaintiff was a public officer and employee of Freeport, as that term is defined

by New York Public Officers Law 18(1)(b) and Chapter 130-5, et. seq. of the Code of

Freeport.

7. The Incorporated Village of Freeport (Freeport) is a municipal corporation

duly formed under the laws of the State of New York and is a political subdivision of the

State of New York, with municipal offices at 46 North Ocean Avenue, Freeport, Nassau

County, New York.

8. The Incorporated Village of Freeport is a public entity as that term is defined

in New York's Public Officers Law 18(1)(a) .

9. Defendant, Andrew Hardwick, was, as of April 6, 2009, and continues to be

the Mayor of the Incorporated Village of Freeport, and is sued herein in his official capacity

and individually.

10. The Defendant Board of Trustees (Board) is the governing body for the

Incorporated Village of Freeport, as that term is defined by New York Public Officers Law

18(1 )(c) and the Village Law for the State of New York.

11. Defendant, Howard Colton (Colton), at all times hereinafter mentioned, was

and continues to be a resident of Freeport, County of Nassau, State of New York.

12. Upon information and belief, Defendant Colton, from on or about March 18,

2009 to date, was and continues to be a political operative of Defendant, Andrew Hardwick.

13. Defendant Colton was, from April 6, 2009 and at all times hereinafter

mentioned, and continues to be, the Village Attorney for the Incorporated Village of

Freeport, and is sued herein in his official capacity and individually.

3


14. Defendant, Dennis Warren, was, at all times hereinafter mentioned, a

resident of Nassau County, State of New York.

15. Upon information and belief, Defendant, Dennis Warren, was, from on or

about October 1, 2008 to date, a political operative of Defendant, Andrew Hardwick.

16. Defendants John Doe #1, #2 and #3 are parties whose true identities are

unknown to plaintiff at this time, but who are, upon information and belief, involved with the

conduct and actions referred to hereinbelow.

17. Defendants Jane Doe #1 and #2 are parties whose true identities are

unknown to plaintiff at this time, but who are, upon information and belief, involved with the

conduct and actions referred to hereinbelow.

18. The provisions of New York's Public Officers Law 18 was duly adopted by

Freeport as Chapter 130-5, et seq. of the Freeport Code and applies to Freeport by virtue

of Public Officers Law 18(2)(a) .

The Facts

19. In October of 2008, during Glacken's term as Mayor, Water Works Realty,

LLC and Gary Melius filed two lawsuits (Water Works actions) in State Supreme Court of

the County of Nassau against nineteen defendants, including, but not limited to, the County

of Nassau (Nassau) , various County officials, employees, a private law firm and several

of its employees, a private developer and its principals, the Incorporated Village of Freeport

(Freeport) , the plaintiff Glacken, in his individual and official capacity, and other Village

officials and employees in their official capacities and individually (Water Works actions) .

4


20. Defendant Colton in this action is also a named defendant in his official

capacity (then Deputy Village Attorney) and in his individual capacity in the Water Works

actions.

21. The Water Works actions seek millions of dollars in damages from Freeport,

Nassau, and the other defendants based on allegations of a variety of criminal actions

against the defendants named therein, includ ing fraud, conspiracy, civil RICO charges, and

a plethora of other claims. The Water Works claims arise from municipal actions taken

in 2004 by Nassau and Freeport to liquidate $1. 2 million dollars in tax liens representing

real property tax arrears on the real property owned by Water Works and located in

Freeport and adjoining the unincorporated area of Baldwin.

22. In or about October of 2008, upon the recommendation of Freeport's

retained Claims Administrator, Customized Claims Services, Freeport retained the law firm

of Wilson, Elser, Moskowitz, Edelman & Dicker, LLP to defend Freeport and the individual

Freeport defendants in the Water Works actions then pending in State Court.

23. In November of 2008, counsel from the Wilson firm met with the then sitting

Board of Trustees 1 concerning the defense of the Water Works actions, and indicated said

actions were completely defensible.

24. Thereafter, Wilson, Elser commenced its representation of Freeport and the

individual Freeport defendants, including Plaintiff Glacken, in the Water Works actions.

25. At all times hereinafter mentioned, Freeport was and continues to be a self-

insured entity with a self-insured retention (SIR) of $1, 000,000. 00.

The Board of Trustees consisted of then Mayor Glacken, Deputy Mayor Frierson-Davis, and Trustees Miller, White and Martinez.

5


26. Upon information and belief, at all times hereinafter mentioned, Freeport

maintained "excess" insurance coverage from "excess" insurance carriers for claims in

excess of its self-insured retention, each policy provid ing in the amount of $5,000, 000. 00

over Freeport's SIR.

27. Upon information and belief, in or about November of 2008, Freeport's

Claims Administrator put Freeport's excess insurance carriers on notice of the Water

Works actions, providing said carriers with copies of the Water Works complaints and other

requested information in said actions.

28. In or about January of 2009, Freeport removed the Water Works State Court

actions to Federal District Court for the Eastern District of New, where said actions are

currently pending under Federal CV Numbers 08-4754 and 08-4449. 2

29. The allegations in the Water Works complaints have caused a great

controversy in the Freeport community, and have become and remain matters of public

concern in that Water Works allegations accuse the County of Nassau, County officials,

the Village of Freeport, its former Board of Trustees and various Village officials, including

plaintiff Glacken, of criminal conduct.

30. Plaintiffs in the Water Works actions seek millions of dollars in damages from

Freeport, Nassau, and the other defendants named in said actions.

31. In January of 2009, Glacken and Hardwick were opponents in the 2009

Freeport mayoral election campaign which culminated with an election on March 18, 2009.

2 Said actions were assigned to the Hon. Leonard Wexler, Federal District Court Judge, and United States Magistrate Boyle.

6


32. The controversy created by the Water Works actions became a major

campaign issue during the Freeport mayoral election campaign.

33. Upon information and belief, prior to the March 2009 Freeport mayoral

election, Defendants Warren, Colton and Hardwick formed an alliance with the plaintiffs

in the Water Works actions, the purpose of which was to fund Hardwick's mayoral election

campaign, coordinate attacks on Glacken, and create a vehicle to settle the Water Works

actions and various tax certiorari proceedings against Freeport.

34. Upon information and belief, Defendants Colton, Warren and Hardwick

agreed to promptly settle the Water Works litigation on terms favorable to plaintiffs in that

action in the event Hardwick won the Freeport mayoral election.

35. Upon information and belief, Defendant Dennis Warren. (Warren) , in his

capacity as Hardwick's chief political operative, was the architect of Defendant Hardwick's

pre-election public position on the Water Works actions.

36. Upon information and belief, Gary Melius (Melius) , the principal of Water

Works Realty LLC and a plaintiff in the pending Water Works Federal actions, was a

contributor to Defendant Hardwick's mayoral campaign and a major supporter of

Defendant Hardwick during the election campaign.

37. Upon information and belief, Gary Melius and members of his family made

substantial contributions to the Nassau County Democratic Committee on or about March

12, 2009, six days before the Village election and shortly thereafter.

38. Upon information and belief, immediately after the Melius March contribution

to the Nassau County Democratic Committee, Defendant Hardwick received the

endorsement of Jay Jacobs, Chairman of the Nassau County Democratic Committee

7


relative to Hardwick's candidacy for mayor in the March 18, 2009 Freeport mayoral

election.

39. Defendant Hardwick publicly advocated for and supported the position of the

Water Works plaintiffs during the mayoral campaign.

40. On March 13, 2009, five days before the election, Melius filed a defamation

action against Plaintiff Glacken in State Supreme Court for the County of Nassau

concerning statements purportedly made by Glacken at a February 26, 2009 public

meeting at the Freeport Library with respect to the pending Water Works actions against

Freeport and others.

41. Upon information and belief, on or about March 14, 2009, four days before

the mayoral election on March 18, 2009,, Melius circulated a mailing to Village residents

throughout Freeport excoriating Glacken and other Village officials, referring to the

Water Works actions pending in Federal District Court.

42. Upon information and belief, the mailing by Melius, a plaintiff in the Water

Works actions against Freeport, was coordinated by Defendant Hardwick's campaign

operatives on behalf of Defendant Hardwick in cooperation and concert with Melius.

43. The statements purportedly made by Glacken on February 26, 2009 were

in response to public questions concerning the Water Works allegations of criminal

conduct by the Village government, Village officials (including Glacken), contract vendors

of Freeport and Nassau.

44. The purported statements made by Glacken were also in response to public

concerns about the joint municipal process by which liens representing real property tax

arrears were liquidated by the taxing authorities of Freeport and Nassau.

8


45. On March 30, 2009, pursuant to New York Public Officers Law 18(3) and

(4) and Chapter 130-5, et seq. of the Freeport Code, Freeport authorized the defense and

indemnification of plaintiff, then Mayor Glacken, in the Melius State Court defamation

action.

46. Freeport's Claims Administrator assigned the defense of the Melius State

Court defamation action to the law firm of Wilson, Elser, Moskowitz, Edelman & Dicker.

47. On March 18, 2009, Defendant Hardwick and two running mates, Carmen

Pineyro and Robert Kennedy were elected as Mayor and Trustees of Freeport.

48. On April 6, 2009, Hardwick, Kennedy and Pineyro took office as Mayor and

Trustees, respectively, for Freeport. Collectively, defendant Hardwick, Trustee Kennedy

and Trustee Pineyro were and continue to be three members of Freeport's five-member

Board of Trustees3.

49. Upon information and belief, between March 19, 2009 and April 5, 2009,

Defendants Colton, Warren and others met with the Water Works plaintiffs and formed a

plan to promptly settle the Water Works actions on terms favorable to plaintiffs in said

actions. Upon information and belief, defendants' plan included measures to stifle

Glacken's opposition to the settlement.

50. Upon information and belief, shortly after the March 18, 2009 election but

before taking office, Defendants Hardwick, Warren and Colton ordered Freeport's Claims

Administrator to replace the Wilson, Elser firm as Freeport's counsel in the Federal Water

Works actions with the two-person law firm of Warren & Warren, of which Defendant

3 White and Martinez were and continue to be the remaining two members of the five-member Board.

9


Warren was, and continues to be, a principal. At such time, Defendants Hardwick, Colton

and Warren were acting in their respective individual capacities.

51. On April 6, 2009, Defendant Hardwick appointed Defendant Colton to the

position of Village Attorney for Freeport.

52. Upon information and belief, Defendant Hardwick, without Board of Trustees

approval or authorization, increased Defendant Colton's Village-paid salary from

$90, 000. 00 to $130, 000. 00.

53. Upon information and belief, shortly after April 6, 2009, Freeport's Claims

Administrator removed Wilson, Elser as Freeport's counsel, but continued Wilson, Elser's

representation of Plaintiff Glacken and the other individual Village defendants in the Water

Works actions now pending in Federal Court, except for Defendant Howard Colton.

54. Simultaneously, Freeport's Claims Administrator retained Warren & Warren

as Freeport's counsel in the Water Works actions.

55. Defendant Colton is now represented by Warren & Warren, LLP in the Water

Works actions.

56. Upon information and belief, Defendant Colton nominally disqualified himself

as to any matters before Freeport that involved or concerned the Water Works or its

principal, Melius.

57. The Wilson Elser firm has also continued as Freeport's retained counsel

assigned to the defense of Glacken in the Melius State Court defamation action

pursuant to the Public Officers Law 18(2) and Chapter 130-5, et seq. of the Code of

Freeport.

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58. Upon information and belief, in or about May or June of 2009, Defendant

Hardwick instructed Dennis Warren to settle the Water Works Federal Court litigation as

against Freeport only, by having Freeport pay $3.5 million to plaintiffs Water Works and

Melius. The Hardwick-directed $3.5 million dollar settlement excluded the non-Village

defendants in said pending actions.

59. Between August 1, 2009 and September 24, 2009, Defendants Hardwick,

Colton, and Freeport's Special Counsel in the Water Works action, Defendant Dennis

Warren, threatened to remove the defense of Glacken and other individual Freeport

defendants in the Water Works Federal actions unless Glacken and others agreed to

support the Hardwick-directed $3. 5 million dollar payment to the Water Works plaintiffs in

settlement of the Water Works actions, and also agreed not to publicly disparage the

proposed Hardwick settlement payment of $3. 5 million dollars to Melius.

60. Glacken has publicly opposed the Hardwick-directed $3. 5 million dollar

settlement of the Water Works actions as imprudent because, upon information and belief,

Defendant Hardwick's directed settlement was to be made (1) prior to the service and

filing of any answer or affirmative defense by any of the nineteen defendants in the two

pending Federal actions; (2) without resolving Freeport's insurance coverage issues with

its two excess insurance carriers; (3) without the conduct of any depositions in the

pending actions or the exchange of any document disclosure by any of the parties or

multiple non-party witnesses in the pending actions; (4) without any provision for

contribution or set-offs from any of the non-Village defendants; (5) without any expert

analysis of the Water Works' damages claim; (6) without a judicial decision on a pending

request of all defendants for leave to file a motion to dismiss the complaints; (7) with no

1 1


assurance that the Village and the individual defendants would not be cross-claimed back

into the action by the non-settling, non-Village defendants; (8) while continuing to require

individual defendants to comply with ongoing discovery requests at Freeport's expense for

legal fees; (9) with no municipal funds available or appropriated to pay the settlement;

and {1 O) without a Village bond resolution in place to authorize the financing of the

proposed settlement.

61. On September 3, 2009, Plaintiff Glacken published his objections to the

Hardwick-directed payment of $3. 5 million dollars to Melius in settlement of the Water

Works actions by circulating a letter to the Mayor, each member of the Board of Trustees,

the Village Clerk and the Village Attorney, setting forth in general terms his objections to

Hardwick's proposal to pay the Water Works plaintiffs $3. 5 million dollars without first fully

and thoroughly investigating the claims through the normal discovery process and

determining the insurance coverage issue first.

62. Upon information and belief, Defendant Warren, Freeport's and Colton's

counsel in the Water Works actions, has not conducted any discovery nor issued a single

demand for production of documents against plaintiffs in the Water Works actions.

63. Upon information and belief, within days of the receipt and distribution

Plaintiff Glacken's letter of opposition to the proposed $3. 5 million dollar payment to Melius,

Defendants Hardwick, Colton, and Warren took steps to withdraw Freeport's defense and

indemnification of Plaintiff Glacken in the Melius State Supreme Court defamation action.

64. Neither Plaintiff Glacken nor his Freeport-retained defense counsel received

prior notice or an opportunity to be heard on this action by Defendant Hardwick.

12


65. Upon information and belief, at the urging of Defendants Warren and Colton,

the Board of Trustees adopted a resolution, on September 14, 2009, purportedly revoking

the indemnification of Glacken in the State Court defamation action, and authorizing the

Village Attorney and/or Special Counsel Warren to commence proceedings against

Plaintiff Glacken to recover all Village funds expended by Freeport "on the matter. "

66. Upon information and belief, said actions were taken and the resolution

adopted only after Defendants Warren and Colton knowingly and intentionally misinformed

the Board of Trustees that payments to Wilson, Elser on behalf of Glacken were illegal

and possibly criminal, and that any Trustee who voted against the termination resolution

would be personally liable for said legal fees.

67. Upon information and belief, Defendants Colton and Warren refused and/or

ignored existing law requiring the Board's obligation and duty to defend Glacken pursuant

to Public Officers Law 18.

68. On September 25, 2009, Freeport's ClaimsAdministrator vicariously notified

Glacken and his Village-retained defense counsel that Freeport had withdrawn Freeport's

defense and indemnification of Glacken in the Melius State Court defamation action

pending in Nassau Supreme Court.

69. Upon information and belief, Trustees White and Martinez, also named

defendants in the Water Works actions and voting members of the current Board of

Trustees, were and continue to be threatened by Defendants Warren, Colton and Hardwick

with Freeport's discontinuance of their Village-provided defense and indemnification in the

Water Works actions unless they agreed to vote for a bond resolution or other financial

13


device to municipally fund the Hardwick-directed settlement payment of $3.5 million dollars

to Melius.

70. The municipal actions taken by Freeport unilaterally withdrawing the defense

of Glacken and authorizing municipal collection efforts against Glacken in the State Court

defamation action were retaliatory actions against Glacken, and were taken solely because

of Glacken's publicly expressed opposition to Defendant Hardwick's proposed $3.5 million

dollar payment to Melius in settlement of the Federal actions, a significant matter of public

concern.

71. Upon information and belief, said action was also taken to bolster and

reinforce the threats directed at Trustees White and Martinez, two voting members of the

Board, and also named defendants in the Water Works actions.

72. Upon information and belief, said action was taken to bolster and reinforce

similar threats directed at Village Treasurer Vilma Lancaster, also a named defendant in

the Water Works litigation.

73. Upon information and belief, during the week of October 12, 2009, Defendant

Colton presented Treasurer Lancaster with a Stipulation of Settlement of the Water Works

litigation and instructed her to sign same.

74. Upon information and belief, Lancaster's attorney, Wilson, Elser, was not

present at such signing and did not authorize such action by Defendant Colton with regard

to Treasurer Lancaster.

75. Upon information and belief, when Lancaster's Village-retained counsel,

Wilson, Elser, objected to Colton's unauthorized meeting with Lancaster, Defendant Colton

14


declared a "conflict of interest" and replaced Wilson, Elser with Warren & Warren as

Lancaster's counsel in the Water Works litigation.

76. Upon information and belief, in furtherance of their goal to stifle any

opposition and/or perceived obstruction of the proposed settlement, Defendants Colton

and Warren have instructed Defendant Lancaster to have no further communication with

Wilson, Elser, her counsel in the Water Works litigation, and also unilaterally removed

Wilson, Elser from representing Lancaster in the Water Works litigation.

77. Upon information and belief, neither Defendant Colton nor Defendant Warren

has authority to unilaterally remove Wilson, Elser as Lancaster's Freeport-retained

counsel in the Water Works litigation.

78. No governmental interest was advanced by said retaliatory actions.

79. But for Plaintiff Glacken's published opposition to the Hardwick-proposed

settlement, Freeport would not have taken the action against Glacken complained of in

this action.

80. Said municipal actions were retaliatory in nature and calculated to intimidate

Glacken and other public officers and employees, including, but not limited to, Trustees

White and Martinez, and Treasurer Vilma Lancaster, into supporting the Hardwick

settlement, passing a resolution approving a $3.5 million dollar bond to fund said

settlement, and to prevent Plaintiff Glacken and others from bringing defendants' actions

to the attention of the public.

81 . The actions taken by Freeport violated Plaintiff's right of free speech to

comment on matters of public concern, as guaranteed by the First Amendment to the

United States Constitution.

15


82. Plaintiff's right to a defense in the civil action entitled Melius v. Glacken is a

statutorily mandated employment benefit extended to plaintiff by New York Public Officers

Law 18(3) and (4) , adopted by Freeport in Chapter 130-5, et seq. of the Code of Freeport.

This right vested in Glacken during his tenure as Mayor of Freeport, a public officer and

employee of a public entity, and is therefore a substantial property right.

83. Plaintiff's entitlement to said employment benefit continued beyond

Glacken's tenure as an official and employee of Freeport, and exists on a continuing basis,

and may not be unilaterally taken away by Freeport without due process.

84. Freeport has provided no pre-termination or post-determination procedure

or process to review the basis for its unilateral termination of plaintiff's rights under Public

Officers Law 18 and Freeport's Chapter 130-5, et seq.

85. Freeport's duty to defend its officers and employees is a statutorily mandated

obligation under New York Public Officers Law 18, as adopted by the Code of Freeport

at Chapter 130. 5, et seq.

86. Freeport's unilateral withdrawal of Glacken's defense constitutes a violation

of New York's Public Officers Law.

87. Defendants' unilateral action of withdrawing such defense is a denial of

Glacken's property interest, without affording Glacken any pre-termination notice or

opportunity to be heard prior to said withdrawal, and constitutes a violation of the due

process clauses of the Fifth and Fourteenth Amendments to the United States Constitution.

88. By reason of defendants' violation of the New York Public Officers Law,

Plaintiff has been and will be forced to expend large sums of money to secure Plaintiff's

16


defense in the pending Melius State Court defamation action pending in Nassau Supreme

Court.

89. Owing solely to the expression of his opinions on public concerns over the

continuing impropriety and malfeasance of Hardwick's proposed $3. 5 million dollar

payment to Melius in settlement of the pending Water Works Federal actions, plaintiff has

become fearful that Defendants Hardwick and Colton will carry out their threats and "pull"

the defense of Glacken in said action.

90. Defendants have threatened and continue to threaten plaintiff and other

individual Freeport defendants in the Water Works actions with the same actions as they

have already taken in the Melius State Court defamation action, exposing the plaintiff and

others to hundreds of thousands of dollars in legal fees and court costs, and inhibiting

plaintiff's and others' First Amendment rights to comment and oppose defendants' actions

with regard to the Water Works actions . .

91. Freeport, in the past, has provided defense and indemnification in many civil

actions against its public officers and employees. Upon information and belief, Freeport

has never made any determination to rescind its defense of an employee under any

circumstances.

92. Freeport's rescission of its defense of Glacken in the State Court action is a

denial of equal protection under the Fourteenth Amendment.

93. The chill cast upon plaintiff's First Amendment rights by Freeport's completed

retaliatory actions and threats of further reprisals is continuing, ongoing and palpable.

94. The retaliatory actions against plaintiff and the continuing threats and

intimidation aimed at the plaintiff and others are part of defendants' policy of retaliation,

17


intimidation and reprisal aimed at the plaintiff and other individual Village defendants to

force their assent to the Hardwick settlement payment of $3. 5 million dollars to Melius,

notwithstanding the claimed impropriety and malfeasance of said actions.

95. Defendants' actions have been taken under color of State law, as are the

threatened actions, and have been approved by the Defendant Board of Trustees, policy

makers for Freeport.

96. Defendants' actions have cast a chill on Plaintiff's continuing exercise of his

First Amendment right of freedom of expression on matters of public concern and interest.

97. Defendants' acts of intimidation, reprisal and retaliation are policies approved

by the Defendant Board of Trustees for Defendant Freeport, and are ongoing.

98. Defendants Hardwick, Colton and Warren's actions have been intentionally

inflicted upon plaintiff to deny him of his First Amendment right to defend himself in the

court proceedings by denying him access to court.

99. By reason of defendants' actions against plaintiff, plaintiff has lost income,

suffered embarrassment, mental anguish, and loss of self esteem.

AS AND FOR A FIRST CLAIM - CONSPIRACY

100. Plaintiff repeats, reiterates and realleges each and every allegation contained

in paragraphs "1" through "99," with the same force and effect as if set forth at length

herein.

101. State actors Hardwick and Colton acted jointly and conspired with Defendant

Warren to present to the Board of Trustees (i) a false statement relative to the Village's

duty to defend plaintiff in the State Court action; (ii) a false statement to the Board of

Trustees as to each member's individual liability for any payments on behalf of the defense

18


of Glacken in the State Court defamation suit; (iii) a false set of minutes concerning the

Board's actions at its meeting of September 14, 2009; and (iv) did provide the Village's

Claims Administrator a false "Corrected Directive" relative to the Board's actions at its

September 14, 2009 Executive Session meeting.

102. That by reason of the foregoing, defendants have implemented a conspiracy

to deprive plaintiff of his constitutionally-protected property rights and right to free speech.

103. That by reason of the foregoing, plaintiff is entitled to damages, to be

determined at trial, but believed to be not less than $2,500,000. 00.

AS AND FOR A SECOND CLAIM - FIFTH AMENDMENT TAKING


in paragraphs "1" through "103, " with the same force and effect as if set forth at length

herein.

105. By reason of the foregoing, the defendants, acting under color of State law,

violated the plaintiff's right to substantive due process by removing plaintiff's defense in the

civil action Melius v. Glacken, in violation of New York Public Officer's Law 18.

106. By reason of the foregoing, plaintiff is entitled to recover damages against

defendants pursuant to 42 USC 1983, in an amount to be determined at trial but believed

to be not less than $2,500, 000.00.

AS AND FOR A THIRD CLAIM - FIRST AMENDMENT VIOLATION


in paragraphs "1" through "106, '' with the same force and effect as if set forth at length

herein.

19


108. By reason of the foregoing, and solely as retaliation for plaintiff's expression

of First Amendment rights objecting to defendants' actions, past, present and proposed,

defendants, acting under color of State law, terminated plaintiff's employment benefit

consisting of the defense and indemnification of plaintiff in a civil action, Melius v. Glacken.

109. By reason of the foregoing, plain tiff's free speech rights under the First

Amendment were chilled, and plaintiff has been forced to spend money, time and

resources in defending himself in said action.

110. The actions of the defendants are in violation of the First, Fifth and

Fourteenth Amendments of the United States Constitution.

111. The actions of the defendants are in violation of New York Public Officers

Law 18 and the Code of Freeport, Chapter 130-5, et seq.

112. By virtue of the foregoing reasons, plaintiff is entitled to recover damages

against defendants in an amount to be determined at trial, but believed to be not less than

$2,500,000. 00.

AS AND FOR A FOURTH CLAIM - INJUNCTION


in paragraphs "1" through "11 O," with the same force and effect as if set forth at length

herein.

114. That by reason of the foregoing, plaintiff is entitled to a declaratory judgment

declaring defendants' conduct illegal and violative of the First, Fifth and Fourteenth

Amendments of the United States Constitution, New York Public Officer's Law 18 and the

Code of Freeport, Chapter 130-5, et seq.

20


115. Upon such declaratory judgment, plaintiff is entitled to an injunction

restraining defendants from illegal conduct against plaintiff.

AS AND FOR A FIFTH CLAIM - PROCEDURAL DUE PROCESS



herein.

117. By virtue of plaintiff's status as a public officer and employee for the period

of time between April 7, 1997 and April 6, 2009, plaintiff has a constitutionally- cognizable

property right in the form of employment benefit defined by New York Public Officers Law

18, to wit, the defense and indemnification in civil actions arising from plaintiff's duties and

actions as duly elected and serving full-time Mayor for the Incorporated Village of Freeport.

118. Plaintiff's above-described property right may not be taken away without due

process of law.

119. By reason of the foregoing, defendants, acting under color of State law,

violated plaintiff's right to procedural due process by failing to provide plaintiff with a pre

termination hearing concerning the Village of Freeport's termination of plaintiff's defense

in the State Court action entitled Melius v. Glacken.

120. By reason of the foregoing, defendants violated plaintiff's right to procedural

due process by failing to provide plaintiff with post-termination notice or opportunity to be

heard relative to the termination of plaintiff's statutory benefit of a defense in the State

Court action entitled Melius v. Glacken.

2 1


121. By reason of the foregoing, plaintiff is entitled to recover damages in an

amount to be determined at trial.

AS AND FOR A SIXTH CLAIM - LEGAL FEES



herein.

123. As a result of the wrongful conduct by the defendants, in both their official

and individual capacities, said conduct having been carried out under color of State law,

plaintiff has been forced to expend substantial sums for legal fees, Court costs and related

expenses to vindicate his constitutionally-protected rights.

124. Plaintiff is entitled to an award of attorneys fees pursuant to 42 USC 1988,

in an amount to be determined at trial.

WHEREFORE, plaintiff prays for judgment against Defendants Colton, Hardwick

and Warren, individually, the Defendant Board of Trustees, and the Defendant

Incorporated Village of Freeport, as follows:

(A) On plaintiff's First Claim, compensatory damages in an amount to be

determined at trial;

(B) On plaintiff's Second Claim, compensatory damages in an amount to be


(C) On plaintiff's Third Claim, compensatory damages in an amount to be


22


(D) On plaintiff's Fourth Claim, judgment declaring that the actions of the

defendants are unconstitutional as applied to plaintiff under the facts and

circumstances of this action, and granting plaintiff permanent injunctive relief

preventing and enjoining defendants from interfering with Plaintiff's exercise

of rights secured by the First, Fifth and Fourteenth Amendments to the

United States Constitution or basing any action regarding Plaintiff's former

employment upon Plaintiff's exercise of his First Amendment rights;

(E) On plaintiff's Fifth Claim, compensatory damages in amounts to be

determined at trial.

(F) On plaintiff's Sixth Claim, legal fees in an amount to be determined at trial;

and

(G) Punitive damages against the individual defendants Hardwick, Colton and

DATED:

Warren, jointly and severally, in the amount of $3,500,000. 00.

Freeport, New York November 5, 2009

23

J. EDWARDS (HE 2810) & EDWARDS

Attorneys for Plaintiff Office and Post Office Address 336 South Ocean Avenue Post Off ice Box 191 Freeport, New York 11520 Tel: 516-379-1323 Fax: 516-379-7121


STATE OF NEW YORK )

VERIFICATION

COUNTY OF NASSAU ) ss.:

WILLIAM F. GLACKEN, being duly sworn, deposes and says:

I am the defendant in the action herein; I have read the annexed Complaint, know the contents thereof, and the same are true to my knowledge, except those matters therein which are stated to be alleged on information and belief, and as to those matters, I believe them to be true.

Sworn to before me this

sd

HARRISON J. EDWARDS IV NOTARY PUBLIC-STATE OF NEW YORK

No. 02ED6200602 Qualffled In Nassau County

My Commision Expires February 02, 2018

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Sacramento Family Court News Exclusive Investigative ReportThis investigative report is ongoing and was last updated in April, 2015.

As many of the articles on our main page reflect, Sacramento Family Law Court whistleblowers and watchdogs contend that a "cartel" of local family law attorneys receive kickbacks and other forms of preferential treatment from family court judges, administrators and employees because the lawyers are members of the Sacramento County Bar Association Family Law Section, hold the Office of Temporary Judge, and run the family court settlement conference program on behalf of the court.

The kickbacks usually consist of "rubber-stamped" court orders which are contrary to established law, and cannot be attributed to the exercise of judicial discretion. For a detailed overview of the alleged collusion between judge pro tem attorneys and family court employees and judges, we recommend our special Color of Law series of investigative reports.

The Color of Law series reports catalog some of the preferential treatment provided by family court employees and judges to SCBA Family Law Section judge pro tem lawyers. Click here to view the Color of Law series. For a list of our reports about family court temporary judges and controversies, click here.

The current day Sacramento County Family Court system and attorney operated settlement conference program was set up in 1991 by and for the lawyers of the Sacramento County Bar Association Family Law Section,

Sacramento Superior Court Temporary Judge Program Controversy

Judge Pro Tem Attorney "Cartel" Controls Court Operations, Charge Whistleblowers

Sacramento Family Court reform advocates assert that collusion between judges and local attorneys deprives financially disadvantaged, unrepresented pro per court users of their parental rights, community assets, and due process and access to the court constitutional rights.

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according to the sworn testimony of controversial family court Judge Peter J. McBrien at his 2009 Commission on Judicial Performance disciplinary proceedings. Click here to read Judge McBrien's testimony.

In his own testimony during the same proceedings, local veteran family law attorney and judge pro tem Robert J. O'Hair corroborated McBrien's testimony and attested to McBrien's character and value to Sacramento County Bar Association Family Law Section members. Click here to view this excerpt of O'Hair's testimony. To view O'Hair's complete testimony, click here.

Court watchdogs assert that the settlement conference kickback arrangement between the public court and private sector attorneys constitutes a racketeering enterprise which deprives the public of the federally protected right to honest government services.

Court reform and accountability advocates assert that the local family law bar - through the Family Law Executive Committee or FLEC - continues to control for the financial gain of members virtually all aspects of court operations, and have catalogued documented examples of judge pro tem attorney preferential treatment and bias against unrepresented litigants and "outsider" attorneys, including:

Divorce Corp, a documentary film that "exposes the corrupt and collusive industry of family law in the United States" was released in major U.S. cities on January 10, 2014. After a nationwide search for the most egregious examples of family court corruption, the movie's production team ultimately included four cases from Sacramento County in the film, more than any other jurisdiction. Judge pro tem attorneys Charlotte Keeley, Richard Sokol, Elaine Van Beveren and Dianne Fetzer are each accused of unethical conduct in the problem cases included in the movie. The infamous Carlsson case, featuring judge pro tem attorney Charlotte Keeley and Judge Peter McBrien is the central case profiled in the documentary, with Sacramento County portrayed as the Ground Zero of family court corruption and collusion in the U.S. Click here for our complete coverage of Divorce Corp.

Judge Thadd Blizzard issued a rubber-stamped, kickback order in November, 2013 for judge pro tem attorney Richard Sokol authorizing an illegal out-of-state move away and child abduction by Sokol's client, April Berger. The opposing counsel is an "outsider" attorney from San Francisco who was dumbfounded by the order. Click here for our exclusive report, which includes the complete court reporter transcript from the hearing. Click here for our earlier report on the unethical practice of "hometowning" and the prejudicial treatment of outsider attorneys.

Whistleblower leaked court records indicate that Sacramento Bar Association Family Law Executive Committee officer and judge pro tem attorney Paula Salinger engaged in obstruction of justice crimes against an indigent, unrepresented domestic violence victim. The victim was a witness in a criminal contempt case against a Salinger client. The circumstances surrounding the obstruction of justice incident also infer collusion between Salinger and controversial Judge Matthew J. Gary. For our complete investigative report, click here.

Two "standing orders" still in effect after being issued by Judge Roland Candee in 2006 override a California Rule of Court prohibiting temporary judges from serving in family law cases where one party is self-represented and the other party is represented by an attorney or is an attorney. The orders were renewed by Presiding Judge Laurie M. Earl in February, 2013. Click here for details.

Sacramento Family Court judges ignore state conflict of interest laws requiring them to disclose to opposing parties when a judge pro tem working as a private attorney represents a client in family court. Click here for our exclusive investigative report. Click here for a list of other conflict of interest posts.

Family court policies and procedures, including local court rules, are dictated by the SCBA Family Law Executive Committee for the financial benefit of private sector attorneys, and often disadvantage the 70 percent of court users without lawyers, according to family court watchdogs and whistleblowers. For example, in sworn testimony by Judge Peter McBrien before the Commission on Judicial Performance, McBrien described seeking and obtaining permission from FLEC to change a local rule. Click here and here.

In November, 2012 Sacramento Family Court Judge Jaime R. Roman issued a rubber-stamped, kickback order declaring a family court party a vexatious litigant and ordering him to pay $2,500 to the opposing attorney, both without holding the court hearing required by law. The opposing attorney who requested the orders is Judge Pro Tem Charlotte Keeley. The blatantly illegal orders resulted in both an unnecessary state court appeal and federal litigation, wasting scarce judicial resources and costing taxpayers significant sums. Click here for our exclusive coverage of the case.

Judge Matthew Gary used an unlawful fee waiver hearing to both obstruct an appeal of his own orders and help a client of judge pro tem attorney Paula Salinger avoid paying spousal support. Click here for our investigative report.

An unrepresented, disabled 52-year-old single mother was made homeless by an illegal child support order issued by Judge Matthew Gary for SCBA Family Law Section attorney Tim Zeff, the partner of

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temporary judge Scott Buchanan. The rubber-stamped, kickback child support order, and other proceedings in the case were so outrageous that the pro per is now represented on appeal by a team of attorneys led by legendary trial attorney James Brosnahan of global law firm Morrison & Foerster. For our exclusive, ongoing reports on the case, click here.

Judge pro tem attorneys Richard Sokol and Elaine Van Beveren helped conceal judge misconduct and failed to comply with Canon 3D(1) of the Code of Judicial Ethics when they were eyewitnesses to an unlawful contempt of court and resisting arrest incident in Department 121. Both Sokol and Van Beveren failed to report the misconduct of Judge Matthew Gary as required by state law. Van Beveren is an officer of the SCBA Family Law Executive Committee. Click here for our exclusive report...

...Four years later, Sokol and Van Beveren in open court disseminated demonstrably false and misleading information about the unlawful contempt of court and resisting arrest incident. The apparent objective of the judge pro tem attorneys was to discredit the victim of Gary's misconduct, trivialize the incident, and cover up their own misconduct in failing to report the judge. For our follow-up reports, click here. In 2014, a video of the illegal arrest and assault was leaked by a government whistleblower. Click here for details.

In 2008 controversial family court Judge Peter J. McBrien deprived a family court litigant of a fair trial in a case where the winning party was represented by judge pro tem attorney Charlotte Keeley. In a scathing, published opinion, the 3rd District Court of Appeal reversed in full and ordered a new trial. 6th District Court of Appeal Presiding Justice Conrad Rushing characterized McBrien's conduct in the case as a "judicial reign of terror." McBrien subsequently was disciplined by the Commission on Judicial Performance for multiple acts of misconduct in 2009. Click here to read the court of appeal decision. Click here to read the disciplinary decision issued by the CJP.

Judge pro tem attorneys Camille Hemmer, Robert O'Hair, Jerry Guthrie and Russell Carlson each testified in support of Judge Peter J. McBrien when the controversial judge was facing removal from the bench by the Commission on Judicial Performance in 2009. As a sworn temporary judges aware of McBrien's misconduct, each was required by Canon 3D(1) of the Code of Judicial Ethics to take or initiate appropriate corrective action to address McBrien's misconduct. Instead, each testified as a character witness in support of the judge. In the CJP's final disciplinary decision allowing McBrien to remain on the bench, the CJP referred specifically to the testimony as a mitigating factor that reduced McBrien's punishment. Click here. Court records indicate that Judge McBrien has not disclosed the potential conflict of interest to opposing attorneys and litigants in subsequent appearances by the attorneys in cases before the judge. Click here for SFCN coverage of conflict issues.

Judge pro tem attorneys Terri Newman, Camille Hemmer, Diane Wasznicky and Donna

Reed were involved in a proposed scheme to rig a recall election of controversial Judge Peter J. McBrien in 2008. The plan involved helping McBrien defeat the recall by electing him "Judge of the Year" before the November election. Click here for the Sacramento News and Review report.

Judge pro tem attorney Robert J. O'Hair testified as a character witness for controversial Judge Peter J. McBrien at the judge's second CJP disciplinary proceeding in 2009. Paula Salinger, an attorney at O'Hair's firm, Woodruff, O'Hair Posner & Salinger was later granted a waiver of the requirements to become a judge pro tem. A family court watchdog asserts the waiver was payback for O'Hair's testimony for McBrien. Click here to read our exclusive investigative report.

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In cases where one party is unrepresented, family court clerks and judges permit judge pro tem attorneys to file declarations which violate mandatory state court rule formatting requirements. The declarations - on blank paper and without line numbers - make it impossible for the pro per to make lawful written evidentiary objections to false and inadmissible evidence. Click here for our report documenting multiple state court rule violations in a motion filed by SCBA Family Law Section officer and temporary judge Paula Salinger. To view the pro per responsive declaration objecting to the illegal filing click here, and click here for the pro per points & authorities.

Family court clerks and judges allow judge pro tem attorneys to file a fabricated "Notice of Entry of Findings and Order After Hearing" in place of a mandatory Judicial Council Notice of Entry of Judgment FL-190 form. The fake form omits critical appeal rights notifications and other information included in the mandatory form. Click here for our exclusive report.

Sacramento Family Court temporary judge and family law lawyer Gary Appelblatt was charged with 13-criminal counts including sexual battery and penetration with a foreign object. The victims were clients and potential clients of the attorney. The judge pro tem ultimately pleaded no contest to four of the original 13-counts, including sexual battery, and was sentenced to 18-months in prison. Court administrators concealed from the public that Appelblatt held the Office of Temporary Judge.Click here to read our report.

Judge pro tem and SCBA Family Law Section attorney Scott Kendall was disbarred from the practice of law on Nov. 24, 2011. Kendall was disbarred for acts of moral turpitude, advising a client to violate the law, failing to perform legal services competently, and failing to keep clients informed, including not telling a client about a wage garnishment order and then withdrawing from the same case without notifying the client or obtaining court permission. Court administrators concealed from the public that Kendall held the Office of Temporary Judge. Click here to view our report.

Judge pro tem attorneys Nancy Perkovich and Jacqueline Eston in 2008 helped Donna Gary - the wife of Judge Matthew J. Gary - promote and market ClientTickler, a client management software program for attorneys. The judge reportedly has never disclosed the conflict of interest as required by the Code of Judicial Ethics. Click here for our exclusive report on the controversy.

In February, 2013 the website of family law firm Bartholomew & Wasznicky cut off the public from the only online access to The Family Law Counselor, a monthly newsletter published by the Sacramento Bar Association Family Law Section. Lawyers at the firm include judge pro tem attorneys Hal Bartholomew, Diane Wasznicky and Mary Molinaro. As SFCN has reported, articles in the newsletter often reflect an unusual, collusive relationship between SCBA attorneys and court administrators and judges. Click here for our report.

Family court reform advocates assert that judge pro tem attorneys obtain favorable court rulings on disputed issues at a statistically improbable rate. The collusion between full-time judges and judge pro tem attorneys constitutes unfair, fraudulent, and unlawful business practices, all of which are prohibited under California unfair competition laws, including Business and Professions Code 17200, reform advocates claim.

Unfair competition and the collusion between judges and judge pro tem attorneys ultimately results in unnecessary appeals burdening the appellate court system, and other, related litigation that wastes public funds, exposes taxpayers to civil liability, and squanders scarce court resources.

Watchdogs point out that the court operates what amounts to a two-track system of justice. One for judge pro tem attorneys and another for unrepresented, financially disadvantaged litigants and "outsider attorneys." Two-track systems are prohibited by the Code of Judicial Ethics, according to the Commission on Judicial Performance and the California Judicial Conduct Handbook, the gold standard reference on judge misconduct. Click here for articles about the preferential treatment given judge pro tem attorneys. Click here for examples of how pro pers are treated.

After representing a client in Sacramento Family Court, San Francisco attorney Stephen R. Gianelli wrote "this is a 'juice court' in which outside counsel have little chance of prevailing...[the] court has now abandoned even a pretense of being fair to outside counsel." Click here to read Gianelli's complete, scathing account.

The Sacramento County Bar Association Family Law Section is led by an "Executive Committee" ("FLEC") of judge pro tem attorneys composed of Chair Russell Carlson, Vice Chair Elaine Van Beveren, Treasurer Fredrick Cohen and Secretary Paula Salinger. Three of the four have been involved in legal malpractice litigation, violations of the Code of Judicial Ethics, or as a defendant in federal civil rights litigation. Click here to read SFCN profiles of the Executive Committee members. Click here for other articles about FLEC.

Judge pro tem attorneys are by law required to take or initiate corrective action if they learn that another judge has violated any provision of the Code of Judicial Ethics, or if a lawyer has violated any provision of the California Rules of Professional Conduct. Family court watchdogs assert that temporary judges regularly observe unethical and unlawful conduct by family court judges and attorneys but have never taken or initiated appropriate corrective action, a violation of the judge pro tem oath of

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office. To view the applicable Code of Judicial Ethics Canons, Click here. For a Judicial Council directive about the obligation to address judicial misconduct, a critical self-policing component of the Code of Judicial Ethics, click here.

For information about the role of temporary judges in family court, click here. For official Sacramento County Superior Court information about the Temporary Judge Program click here. Using public records law, Sacramento Family Court News obtained the list of private practice attorneys who also act as judge pro tems in Sacramento Family Law Court. Each lawyer on the list below is currently a temporary judge, or was a temporary judge in 2009, 2010, 2011, 2012 or 2013. SFCN cross-checked each name on the Sacramento County judge pro tem list with California State Bar Data. The first name in each listing is the name that appears on the Sacramento County judge pro tem list, the second name, the State Bar Number (SBN), and business address are derived from the official State Bar data for each attorney. The State Bar data was obtained using the search function at the State Bar website.

For-profit, private sector lawyers who also hold the Office of Temporary Judge:

Sandy Amara, Sandra Rose Amara, SBN 166933, Law Office of Sandra Amara,1 California Street, Auburn, CA 95603.

Mark Ambrose, Mark Anthony Ambrose, SBN 141222, Law Offices of Mark A. Ambrose, 8801 Folsom Blvd. Ste. 170, Sacramento, CA 95826. Ambrose unethically advertises himself as a temporary judge.

Kathleen Amos, Kathleen Swalla Amos, SBN 112395, Attorney at Law & Mediator, 206 5th Street, Ste. 2B Galt, CA 95632.

Gary Appelblatt, Gary Michael Appelblatt, SBN 144158, 3610 American River Drive #112, Sacramento, CA 95864. Appelblatt was disbarred by the State Bar on Sept. 24, 2010 after being convicted of sexual battery against clients. Click here for our exclusive report. Appelblatt is a graduate of McGeorge School of Law.

Beth Appelsmith, Beth Marie Appelsmith, SBN 124135, 1430 Alhambra Blvd. Sacramento CA 95816.

Bunmi Awoniyi, Olubunmi Olaide Awoniyi, SBN 154183, Law Office of Bunmi Awoniyi a PC, 1610 Executive Ct. Sacramento, CA 95864. Awoniyi unethically advertises herself as a temporary judge. Awoniyi was appointed a Superior Court Judge in December 2012 and holds court in Department 120 of Sacramento Family Court.

Alexandre C. Barbera, C. Alexandre Barbera, SBN 70071,915 Highland Point Drive, Ste. 250 Roseville, CA 95678.

A number of family court whistleblowers have leaked court records indicating that judge pro tem attorneys receive from

judges kickbacks and other preferential treatment in exchange for operating the family court settlement conference program.

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Complaint- Public-Private Civil Rights Violations - Color of Law Conspiracy-Federal Civil Rights - Glacken v. Village of Freeport - California Supreme Court Justice Leondra R. Kruger,