Judge files complaint claiming wrongful termination from bench

A judge removed from the bench in Linden has complained of wrongful termination, but the mayor says his $127,000 a year salary is the real reason.
A judge removed from the bench in Linden has complained of wrongful termination, but the mayor says his $127,000 a year salary is the real reason.

LINDEN — Former city municipal judge Louis DiLeo is suing the city and Mayor Rich Gerbounka for wrongfully and improperly terminating him last year after sitting on the local bench since 2003.

The lawsuit, filed last week in Elizabeth Superior Court, alleged that starting in 2008 city officials “conspired and discriminated” against the municipal judge, depriving him of his civil rights.

DiLeo, 59, a practicing attorney in Linden and a Westfield resident, said in the 35-page complaint obtained by LocalSource that as a highly experienced and dedicated public servant, he worked “diligently, effectively and exhaustively.” He also handled an ever-growing and, at times, almost impossible caseload of municipal court matters, he said in the complaint.

By doing so, DiLeo’s attorney Patrick Toscano, Jr. said DiLeo was able to increase annual court revenues for the city from $850,000 to more than $2.6 million under his leadership. But then things took a downturn when in 2007 Gerbounka was elected as mayor and rumors he wanted to replace DiLeo surfaced.
Toscano said at this time DiLeo was handling an average of 300 cases a week, which led to staff overload and court sessions extending late into the day or evening, often without breaks.

At this point, Toscano said, DiLeo went to Gerbounka asking to expand his days beyond the one daytime court and two night court sessions and appoint part-time judges to assist him. But, he said, the mayor “summarily and without careful thought or deliberation refused.” DiLeo then went to the Union County Superior Court assignment judge for help in analyzing the caseload situation.

In August 2007 the assignment judge wrote to Gerbounka saying the situation at the Linden municipal court was justified, requesting that Gerbounka consider extending court sessions and appointing part-time judges to assist DiLeo. The mayor, though, did not think it was such a good idea.

“Gerbounka wrote back, flatly refusing to take such action,” Toscano said, adding the mayor made an improper remark about how “overpaid” DiLeo was, refusing to devote any funds to help alleviate the municipal court overload. DiLeo also claimed that despite this, the mayor “had no problem disregarding the independence and constitutional separation of the municipal court,” pointing out that he “repeatedly interfered” with and tried to influence matters before the court.

For example, Toscano said Gerbounka tried to get DiLeo to void a parking ticket received by a Linden resident, without providing any justifiable basis. The municipal judge transferred this case but also alerted the Union County Court, assignment judge and Union County Prosecutor to Gerbounka’s conduct.
“The mayor’s conduct and attempted illegal ticket fixing was criticized by a number of council members at meetings in September 2008,” the attorney said in the complaint, noting the mayor expressed resentment over the matter by making false statements about his discussions on the matter with DiLeo. It was about that time, the attorney said, that Gerbounka began discussing replacing the municipal judge. In fact, the mayor said so at a Sept. 16, 2008 public meeting, which DiLeo claimed was a “payback” against the municipal judge.

Toscano said that prior to that incident Gerbounka had not criticized DiLeo nor voted against his appointment in 2004 and reappointment in 2005 when he was on city council. But that all changed, DiLeo claimed, after “the mayor’s conduct and attempted ticket fixing” was criticized by council members.

Toscano claimed that from that point in September 2008, Gerbounka “embarked on a continuous course of wrongful and malicious conduct clearly intended to wrongfully discharge the plaintiff and deprive him of the wages, benefits and pension in punishment and retaliation for reporting Gerbounka’s ticket fixing.”

DiLeo alleged that the mayor had “utter disregard and disrespect for the law, ethics, limits and separation of power, truth and decency, stooped to the lowest levels of dirty politics.” And, the attorney said, the mayor continued this behavior for three years without the city council doing anything to stop it. But there are two sides to every story and the city and mayor have theirs.
While issues involving the ticket fixing incident were adamantly denied by Gerbounka, in 2008 and continuing until the municipal judge was replaced last year the mayor has repeatedly said that his reasons remained purely financial.

With the city facing declining revenue, Gerbounka said, city officials had to find ways of reducing costs and the burden of DiLeo’s $127,000 salary with health benefits and pension were taxing the city coffers entirely too much. The mayor felt the city could appoint a judge for considerably less, suggesting a better choice was Dan Roberts, who would accept $52,000 less a year to do the same job, without the added expense of health and pension benefits. However, the majority of council did not agree. This tied Gerbounka’s hands because while the municipal judge has the sole power to appoint the municipal judge, he needs the approval of council for it to pass. So DiLeo, working on an expired term since 2009, stayed on the bench.

Considerable weight was added to the mayor’s desire to replace DiLeo in 2011 when the municipal judge came under fire after he overstepped his authority and prosecuted and presided over the same case.

According to court documents, DiLeo committed significant legal errors during the trial of cousins Anthony and Wendall Kirkland in May 2010 on attempted burglary and other charges. Figuring significantly into this was that the municipal judge allegedly denied their request for a public defender, sentencing them to six months in jail with three years probation. The Union County Prosecutor’s Office also asked that the convictions be vacated and the case re-tried, possibly in another jurisdiction.
Gerbunka continued to bring up attorney Dan Roberts as a replacement for DiLeo, but the measure failed many times by a 6-to-5 vote until last year when Adam Kuczynski was elected to represent the 10th Ward. Kuczynski sided with Gerbounka, giving him the sixth vote needed to defeat the council members supporting DiLeo. At this point DiLeo was handed his walking papers and Roberts was brought aboard at a salary of $75,000 and no health benefits or pension.

Last week Gerbounka had still not seen DiLeo’s complaint, but remained steadfast about his decision to replace the municipal judge.

“I know I have the legal right to appoint and terminate,” the mayor said, explaining that his name as mayor is attached to the person holding the municipal judge title in the city and their conduct is a reflection of that appointment.

“You only have to look at his $127,000 salary plus benefits and pension costs to understand why he was replaced. Dan Roberts is doing twice as much work and not complaining. I needed someone who could handle the case load and do it for what we could afford,” Gerbounka said late last week.

DiLeo was unable to be reached by press time for comment.