Preview
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PIRO, ZINNA, CIFELLI, PARIS & GENITEMPO, LLC
360 PASSAIC AVENUE
NUTLEY, NEW JERSEY 07110
973-661-0710
Alan Genitempo, Esq. I.D. 023181987
Attorneys for Plaintiff, Louise Clarke
LOUISE CLARKE SUPERIOR COURT OF NEW JERSEY
LAW DIVISION: PASSAIC COUNTY
DOCKET NO.: PAS-L-533-19
Plaintiff,
Civil Action
V.
NOTICE OF MOTION TO RECUSE
CARLSTADT-EAST RUTHERFORD DEFENDANTS' COUNSEL
BOARD OF EDUCATION a/k/a SCIARRILLO, CORNELL, MERLINO
BECTON REGIONAL SCHOOL MCKEEVER & OSBORNE, LLC
DISTRICT, ROBERT ANDERSON,
JOHN DOES 1-10 AND ABC CORPS.
1-10 (fictitious names
representing any unknown
defendants)
Defendants
PLEASE TAKE NOTICE that on June 21, 2019 at 9:00 o'clock in
the forenoon, or as soon thereafter as counsel may be heard, the
undersigned, attorney for the Plaintiff, will move before the
Superior Court of New Jersey, Law Division, Passaic County, for an
Order for the recusal of Defendant's counsel from the case.
PLEASE TAKE FXJRTHER NOTICE that Plaintiff shall rely upon the
annexed Certifications and Legal Brief submitted in support of the
Motion.
PLEASE TAKE FURTHER NOTICE that a proposed from of Order is
submitted herewith.
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PLEASE TAKE FURTHER NOTICE that oral argument is requested if
this Motion is opposed.
PIRO, ZINNA^CIFELLI, PARIS
& GENITEMf^ yLLC
Attorne^ far Plaintiff
'^ALAN GENITEMPO
Dated: June 5, 2019
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PIRO, ZINNA, CIFELLI, PARIS & GENITEMPO, LLC
360 PASSAIC AVENUE
NUTLEY, NEW JERSEY 07110
973-661-0710
Alan Genitempo, Esq. I.D. 023181987
Attorneys for Plaintiff, Louise Clarke
______________________________
LOUISE CLARKE : SUPERIOR COURT OF NEW JERSEY
: LAW DIVISION: PASSAIC COUNTY
: DOCKET NO.: PAS-L-533-19
Plaintiff, :
: Civil Action
v. :
: ORDER TO RECUSE
CARLSTADT-EAST RUTHERFORD :
BOARD OF EDUCATION a/k/a :
BECTON REGIONAL SCHOOL :
DISTRICT, ROBERT ANDERSON, :
JOHN DOES 1-10 AND ABC CORPS. :
1-10 (fictitious names :
representing any unknown :
defendants) :
:
Defendants :
__ :
THIS MATTER having been opened to the Court by Alan Genitempo,
Esq., of Piro, Zinna, Cifelli, Paris & Genitempo, LLC., attorneys
for Plaintiff, Louise Clarke, for an Order for the recusal of
Defendants’ counsel and the Court having considered the matter for
good cause having been shown;
IT IS on this day of , 2019;
ORDERED that Defendants’ counsel, the firm of SCIARRILLO, CORNELL,
MERLINO, MCKEEVER & OSBORNE, LLC., hereby are disqualified as
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counsel for the Defendants in the above-captioned matter pursuant
to New Jersey Rules of Professional Conduct 1.9 and 3.7; and it is
further
ORDERED that Defendant’s shall have ______ days to obtain counsel
and file a substitution of attorney
ORDERED that a copy of this Order shall be served upon all parties
herein with days of the date hereof.
Honorable J.S.C.
Opposed
Unopposed
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PIRO, ZINNA, CIFELLI, PARIS & 6ENITEMPO, LLC
360 PASSAIC AVENUE
NUTLEY, NEW JERSEY 07110
973-661-0710
Alan Genitempo, Esq. I.D. 023181987
Attorneys for Plaintiff, Louise Clarke
LOUISE CLARKE SUPERIOR COURT OF NEW JERSEY
LAW DIVISION: PASSAIC COUNTY
DOCKET NO.: PAS-L-533-19
Plaintiff,
Civil Action
CERTIFICATION OF COUNSEL
CARLSTADT-EAST RUTHERFORD
BOARD OF EDUCATION a/k/a
BECTON REGIONAL SCHOOL
DISTRICT, ROBERT ANDERSON,
JOHN DOES 1-10 AND ABC CORPS,
1-10 (fictitious names
representing any unknown
defendants)
Defendants
I, ALAN GENITEMPO, ESQ., hereby certify as follows:
1. I am a Partner with the Law Firm of Piro, Zinna, Cifelli,
Paris & Genitempo, L.L.C. and I represent the Plaintiff in this
matter.
2. I make this Certification in Support of Plaintiff's
Motion Recuse Defendants' Counsel Sciarrillo, Cornell, Merlino
Mckeever & Osborne, LLC.
3. I am familiar with the history of the within matter.
4. Prior to the filing of an Answer and Counterclaim I
contacted Defendants counsel to discuss the obvious conflict and
definite need for their testimony and discovery in this matter,
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5. Seeking to recuse a fellow attorney is not something I
take lightly and as such I contacted defense counsel, prior to the
filing of this motion and prior to the filing of their Answer and
frivolous Counterclaim which they filed against Plaintiff, to ask
them to voluntarily withdraw as counsel. No response was received
and instead Defendant's filed their Answer and Counterclaim.
6. For the reasons set forth in the accompanying brief.
Certification of the Plaintiff Louise Clarke and this
Certification it is respectfully requested that the Court grant
Plaintiff's motion to recuse Sciarrillo, Cornell, Merlino Mckeever
& Osborne, LLC as defense counsel in this instant matter.
I certify that the foregoing statements made by me are true;
I am aware that if any of the foregoing stat^m^nts made by me are
willfully false, I am subject to punishmei
ALAN GENITEMPO, ESQ.
Dated: June 5, 2019
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PIRO, ZINNA, CIFELLI, PARIS & GENITEMPO, LLC
360 PASSAIC AVENUE
NUTLEY, NEW JERSEY 07110
973-661-0710
Alan Genitempo, Esq. I.D. 023181987
Attorneys for Plaintiff, Louise Clarke
______________________________
LOUISE CLARKE : SUPERIOR COURT OF NEW JERSEY
: LAW DIVISION: PASSAIC COUNTY
: DOCKET NO.: PAS-L-533-19
Plaintiff, :
: Civil Action
v. :
:
CARLSTADT-EAST RUTHERFORD :
BOARD OF EDUCATION a/k/a :
BECTON REGIONAL SCHOOL :
DISTRICT, ROBERT ANDERSON, :
JOHN DOES 1-10 AND ABC CORPS. :
1-10 (fictitious names :
representing any unknown :
defendants) :
:
Defendants :
__ :
________________________________________________________________
BRIEF ON BEHALF OF THE PLAINTIFF IN SUPPORT OF THE MOTION FOR
RECUSAL OF SCIARRILLO, CORNELL, MERLINO, MCKEEVER & OSBORNE, LLC
AS COUNSEL FOR THE DEFENDANTS
Alan Genitempo, Esq.
On the brief
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PROCEDURAL HISTORY AND STATEMENT OF FACTS
The Complaint in the present matter was filed by Plaintiff,
Louise Clarke (“Plaintiff”) against Defendants, Carlstadt-East
Rutherford Board of Education a/k/a Becton Regional School
District (“Defendant BOE”) and Robert Anderson (“Defendant
Anderson”) (collectively as “Defendants”). On February 2014,
Plaintiff was appointed to the position of Superintendent of
Defendant BOE. Plaintiff was the first female Superintendent in
Defendant BOE’s history. Plaintiff was subjected to continuous
verbal abuse from many of her peers during her tenure as
Superintendent. Plaintiff suffered such verbal abuse because of
her status as a woman and for diligently handling her
responsibilities as Superintendent. One of Plaintiff’s peers
claimed that Plaintiff only received the promotion to
Superintendent because she performed a sexual act on another. Nick
Annitti (“Mr. Annitti”), the Business Administrator for Defendant
BOE, made several remarks throughout Plaintiff’s tenure as
Superintendent. Mr. Annitti’s remarks were focused on Plaintiff’s
gender and sexuality. Amongst other things, Mr. Annitti demanded
that his confidential secretary ask Plaintiff whether she was
engaging in a sexual affair with another employee. Plaintiff is
married and Mr. Annitti’s comments and questions made her feel
humiliated.
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Mr. Annitti’s conduct continued when he was facing a complaint
within the office. A former Superintendent, Dr. Centolanza, was
set to investigate the claim but Mr. Annitti demanded a change of
investigator by claiming the Plaintiff had a “relationship” with
Dr. Centolanza. Once again, Plaintiff became upset, offended, and
humiliated with the statements made by Mr. Annitti. On another
occasion, Mr. Annitti approached Plaintiff and asked her whether
she knew about two co-workers’ same-sex relationship that he just
learned about. Again, Plaintiff was offended and humiliated with
Mr. Annitti asking about her private, sexual matters of other
employees.
Mr. Annitti’s conduct towards Plaintiff went far beyond the
sexual questions he posed to her. Mr. Annitti, along with several
other members of Defendant BOE, constantly harassed and ridiculed
Plaintiff’s performance as Superintendent. Mr. Annitti
continuously slammed doors to his office and Plaintiff’s office,
yelled at Plaintiff during business meetings, banged his fist on
a table in efforts to rattle Plaintiff, and frequently uttered
“bitch” while walking past Plaintiff. Mr. Annitti even referred to
Plaintiff as “that fucking woman in the back” which directly
referred to Plaintiff’s gender.
Plaintiff was also subjected to various demeaning comments by
one of the science teachers, Robert Di Domenico (“Mr. Di Domenico”)
throughout her employment. Mr. Di Domenico was the former
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Supervisor of Science and was terminated in or about May 2015.
After Di Domenico learned about his termination, he yelled about
Plaintiff and repeatedly screamed, calling her a “bitch.”
During her tenure as Superintendent, Plaintiff contacted the
State of New Jersey’s Department of Education Office to verify the
certification of James Bononno (“Mr. Brononno”). Through her due
diligence, Plaintiff discovered that Mr. Bononno’s certificate had
been issued in error and the possession of such certificate was
necessary for his proposed assignment. Plaintiff also reported to
the New Jersey State Department of Education that Mr. Annitti’s
financial reporting requirements were not filed in accordance with
state statute. In fact, he was six months behind in his fillings.
Plaintiff had a responsibility as Superintendent to operate the
district and to be transparent and truthful and has always
fulfilled the obligation required of her.
As a result of Plaintiff performing her responsibilities and
duties, she was retaliated against by several employees and members
of the Board, including President, Defendant Anderson. Fred Meo
(“Mr. Meo”) was the Board’s Vice President in 2017 and retaliated
against Plaintiff after an email was sent to the Board President
which raised questions about bypassing Plaintiff in the
negotiations for giving out raises. Mr. Meo mistakenly believed
that the email was actually sent at Plaintiff’s direction. When
Plaintiff reached out to Mr. Meo to explain, he told Plaintiff
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that he wouldn’t approve anything Plaintiff brings forward for the
next school year as “punishment.” Mr. Meo also told Plaintiff that
he had convinced the committee to meet about Plaintiff’s contract,
but she could now “kiss that good-bye” as a result of the email
that she did not send. Despite Plaintiff’s efforts to convince Mr.
Meo and others that she had nothing to do with the email, Mr. Meo
threatened Plaintiff to publicly denounce the email or things will
“get worse for you.”
Plaintiff was also retaliated against by several members of
the Defendant Board. Larry Bongiovanni, Dennis Monks, and Kevin
Felten verbally based Plaintiff throughout several Executive
Sessions held. Mr. Annitti also retaliated against Plaintiff
through the consistent and demeaning comments he made to Plaintiff
and behind her back after she was forced to report that Mr.
Annitti’s financials were behind schedule.
On or about August 8, 2018, the chairman of the Personnel
Committee, at the direction of the President, Defendant Anderson,
placed a resolution before the Board to not renew Plaintiff’s
contract for the 201-2020 school year. This item was not placed on
the agenda as to not have the community members aware of what was
going to take place and was without reason or basis except as
retaliation for refusing to violate the law and for reporting the
behavior of the Board Members and Annitti to the State. Subsequent
to not being renewed, Plaintiff was advised by the Defendant
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Anderson that she was suspended without charges being filed against
her. Despite Plaintiff’s contract that provided her with
employment rights, Plaintiff was suspended without notice or
warning.
Plaintiff subsequently filed a Complaint on February 11, 2019
in the Passaic County Superior Court in the Law Division, alleging
sexual harassment, creation of a hostile work environment, gender
discrimination, retaliation, wrongful termination, breach of
contract, violation of the Equal Pay Act, violation of Plaintiff’s
civil rights, and aiding and abetting under the New Jersey Law
Against Discrimination. Defendant subsequently filed a
Counterclaim against Plaintiff, which Plaintiff claims is utterly
frivolous.
Plaintiff now moves to recuse the firm of SCIARRILLO, CORNELL,
MERLINO, MCKEEVER & OSBORNE, LLC (“Sciarrillo law firm”) from
further representation of Defendants in this matter. The
Sciarrillo law firm’s representation of Defendants in this matter
is a violation of the Rules of Professional Conduct, Rule 1.9,
which prohibits attorneys from representing a client where a
conflict of interest exists. The Sciarrillo law firm previously
represented Plaintiff while she was Superintendent of Defendant
BOE. As a result, the Sciarrillo law firm has a duty towards
Plaintiff and representing Defendants presents a clear conflict of
interest. Additionally, the Sciarrillo law firm’s representation
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violates, Rule 3.7, which disallows attorneys from acting as both
a substantial witness as to every issue in a case. The Sciarrillo
law firm is an advocate on behalf of the named Defendants in the
present litigation. They are also essential witnesses with
intimate knowledge of the underlying issues that resulted in the
present litigation, including Defendant’s frivolous counterclaim.
Additionally, their recusal would not work a substantial
hardship on named Defendants in this matter because they have not
invested substantial time in the matter. They have yet to respond
to any discovery. The Sciarrillo law firm should be barred from
representing Defendants. For the above stated reasons, Plaintiff
respectfully requests that the Sciarrillo law firm be ordered to
recuse themselves as counsel for Defendants in this matter.
LEGAL ARGUMENT
I. THE SCIARRILLO LAW FIRM’S REPRESENTATION OF DEFENDANT
PRESENTS A CONFLICT BECAUSE HE PREVIOUSLY REPRESENTED
PLAINTIFF WHEN SHE WAS THE SUPERINTENDENT OF DEFENDANT BOE.
While a litigant generally has the right to freely choose his
or her attorney, “a person’s right to retain counsel of his or her
choice is limited in that ‘there is no right to demand to be
represented by an attorney disqualified because of an ethical
requirement’.” Oswall v. Tekni-Plex, Inc., 299 N.J. Super. 658, 670
(App. Div. 1997). New Jersey Rules of Professional Conduct 1.9,
titled “Conflict of Interest: Former Client,” provides:
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(a) A lawyer who has represented another client in the
same or substantially related matter in which that
client’s interests are materially adverse to the
interests of the former client consents after a full
disclosure of the circumstances and consultation with the
former client; or (2) use information relating to the
representation to the disadvantage of the former client
or whether the information has become generally known.
To begin analyzing a conflict issue under RPC 1.9, one must
begin by determining the identity of the former client and whether
the attorney’s representation creates an actual conflict vis-à-vis
that former client. McCarthy v. John T. Henderson, Inc., 246 N.J.
Super. 225, 230 (App. Div. 1991). If it is found that the lawyer is
representing another client in the same or a substantially related
matter in which the client’s interests are materially adverse to
the interests of the former client, that lawyer shall be
disqualified. Even where it is determined that the adverse party in
the current litigation is not a former client of the attorney, the
inquiry does not end there. A court must then inquire whether the
attorney’s representation of a former client creates the appearance
of impropriety and would lead “an ordinary knowledgeable citizen
acquainted with the facts to conclude that the current adverse party
should be considered a former client. Id. at 232.
Interestingly, RPC 1.9(b) provides for disqualification of an
attorney, solely based on the appearance of impropriety due to
previous representation of another client, even if the adverse party
in the current action was not actually the attorney’s former client.
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If there is any doubt as to the propriety of an attorney’s
representation of a client, such doubt must be resolved in favor of
disqualification. Reardon v. Marylayne, Inc., 83 N.J. 460, 474
(1980).
Attorneys owe fiduciary duties of both confidentiality and
loyalty to their clients. New Jersey strictly construes RPC 1.9 and
consequently, “is there be any doubt as to the propriety of an
attorney’s representation of a client, such doubt must be resolved
in favor of disqualification.” Id. An attorney-client relationship
may be implied when (1) a person seeks advice or assistance from an
attorney, (2) the advice or assistance sought pertains to matters
within the attorney’s professional competence, and (3) the attorney
expressly or impliedly agrees to give or actually gives the desired
advice or assistance. Herbert v. Haytaian, 292 N.J. Super. 426, 436
(App. Div. 1996).
The existence of an attorney-client relationship places upon
the attorney the responsibilities set forth in the New Jersey Rules
of Professional Conduct. Id. at 437. Under RPC 1.9 an attorney
cannot represent a party in a “substantially related matter” in
which that party’s interests are “materially adverse to the
interests of the former client” nor can he “use information relating
to the representation to the disadvantage of the former client.”
emphasis added Id. Where such substantially related matters are
present or when a reasonable perception of impropriety exists, the
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court will assume that confidential information has passed between
attorney and former client, notwithstanding the attorney’s
declarations to the contrary. Id. at 438. The presumption of access
to and knowledge of confidences may not be rebutted. Id.
Here, an attorney-client relationship clearly existed between
Plaintiff and the Sciarrillo law firm. Mr. Sciarrillo previously
represented Plaintiff while she served as Superintendent to
Defendant BOE. Mr. Sciarrillo and Mr. McKeever frequently appeared
for board meetings and assisted her with various legal issues within
the District. As a result, Plaintiff often consulted with Mr.
Sciarrillo and Mr. McKeever pertaining to her work in a way she
wouldn’t have absent an attorney-client relationship. Therefore,
the Sciarrillo law firm received confidential information from
Plaintiff that should not be allowed to be used to her disadvantage.
Additionally, Plaintiff and the Sciarrillo law firm clearly have
materially adverse interests. Plaintiff and the Sciarrillo law firm
are on opposite sides of this litigations. Further, they represented
Plaintiff in “substantially related matters” to the current
litigation. Specifically, Mr. Sciarrillo and Mr. McKeever obtained
information about Plaintiff’s work habits and decision-making. In
the present litigation, Defendants attempt to defend themselves
against Plaintiff’s discrimination, harassment, and wrongful
termination claims. In other words, Defendants need to discredit
Plaintiff. In fact, the entire basis of Defendants’ counterclaim is
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that Plaintiff was unfit for her role as Superintendent. For
Defendants to succeed in this lawsuit, they would need information
pertaining to Plaintiff’s work-habits and decision-making. As a
result, the Sciarrillo law firm is in a position to severally harm
Plaintiff with the information they received during the previous
representation. In sum, the Sciarrillo law firm seeks to switch
sides and now represent Defendants after already representing
Plaintiff in other similar matters. They seek to use all information
they obtained while acting as Plaintiff’s attorney against
Plaintiff. Possessing such information and disclosing it is clearly
unlawful according to the Rules of Professional Conduct.
II. THE SCIARRILLO LAW FIRM CANNOT REPRESENT DEFENDANTS BECAUSE
THEY ARE DEFINITELY GOING BE NECESSARY WITNESSES IN THIS MATTER
AND DO NOT MEET ANY OF THE THREE EXCEPTIONS TO R.P.C. 3.7.
New Jersey Rules of Professional Conduct 3.7(a), titled “Lawyer
as Witness” provides:
(a) A lawyer shall not act as advocate at a trial in which
the lawyer is likely to be a necessary witness unless:
(1) the testimony relates to an uncontested issue; (2)
the testimony relates to the nature and value of the legal
services rendered in the case; or (3) disqualification of
the lawyer would work substantial hardship on the client.
RPC. 3.7.
This motion for recusal is based on R.P.C. 3.7(a) because the
counsel for Defendants, Mr. Sciarrillo and Mr. McKeever, are
essential witnesses in the underlying matter and they have knowledge
of virtually every event that resulted in this litigation. (See
Plaintiff Clarke’s Certification) These issues are highly contested
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and their testimony is of upmost importance at the trial of this
matter. Further, they have not invested a significant amount of time
in preparing this case, thus Defendants would not be unduly
prejudiced by their recusal.
A. Mr. Sciarrillo and Mr. McKeever are necessary witness in
this matter because they possesses information pertaining
to Plaintiff’s performance as Superintendent.
R.P.C. 3.7(a) bars an attorney from representing a client when
it is likely that he will be a necessary witness in the matter. This
attorney-witness rule applies at the moment that an attorney knows
or believes that he will be a witness at trial, which may be apparent
before accepting employment from a client. Freeman v. Vicchiarelli,
827 F. Supp. 300, 303 (D.N.J. 1993). At that moment, the attorney
has an obligation to either proceed as an advocate for the client
or proceed as a witness Id. The Rules of Professional Conduct
explicitly prohibit an attorney from acting both as an advocate and
witness. Id.; R.C.P. 3.7(a). Further, Rule 3.7(a) does not require
certainty that the attorney will be called upon as a necessary
witness. State v. Dayton, 292 N.J. Super. 76, 84 (App. Div. 1996).
Instead, an attorney who knows that it is merely “likely” that he
will be called upon as a witness must recuse himself from the matter.
Id. This serves the primary purpose of R.P.C. 3.7, which is to
protect the client and maintain the integrity of the fact-finding
process. Id. The conflicting roles of an attorney and witness
undercut the integrity of the court’s ability to effectively
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evaluate the issues at bar. Id. According, a court should allow an
attorney to testify on necessary evidence in favor of permitting an
attorney to stay on the case and forgoing the necessary testimony.
Id.; see also Advisory Committee on Professional Ethics Opinion No.
233, 95 N.J.L.J. 206 (1972).
Here, Mr. Sciarrillo and Mr. McKeever have first-hand knowledge
of the factual circumstances that resulted in the present
litigation. As a result, it is more than likely in fact definite
that Mr. Sciarrillo and Mr. McKeever will be essential and necessary
witnesses in this present litigation. They will have to provide
testimony under oath relating to factual disputes in this case.
Mr. Sciarrillo and Mr. McKeever worked extremely closely with
Plaintiff during her time as Superintendent of Defendant BOE. Upon
many other things, they attended all Board meetings and are close
friends with Mr. Annitti. As a result, Mr. Sciarrillo and Mr.
McKeever will likely be needed to testify about the alleged
harassing & discriminating conduct suffered by Plaintiff. Mr.
Sciarrillo was constantly around the building and likely has
firsthand knowledge about such behavior from Defendants employees.
Additionally, Mr. Sciarrillo and Mr. McKeever possess personal
knowledge regarding certain decision-making issues Plaintiff made
during her time as Superintendent. As mentioned above, Plaintiff’s
ability to perform at her job is an important issue in this matter.
Once again, counsel possess information that could assist in
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unveiling the factual circumstances surrounding such issue due to
his previous representation of Plaintiff. Therefore, counsel is
likely to be needed to testify about Plaintiff’s job performance
particularly in light of their baseless frivolous counterclaim.
Being that Mr. Sciarrillo, Mr. McKeever and Plaintiff worked so
closely together, it is highly unlikely that there is someone who
possess more information about Plaintiff’s job performance than Mr.
Sciarrillo and Mr. McKeever. Particularly in light of the facts
illustrated in Plaintiff’s Certification.
Plaintiff’s duties and responsibilities became a bigger issue
in this matter after Defendants filed their counterclaims.
Defendants first allege a breach of contract claim due to
Plaintiff’s failure to perform as Superintendent in conformity with
the provisions in the employment agreement. As previously stated,
counsel possess information about Plaintiff’s work performance and
therefore, will likely be needed to testify to that issue.
Additionally, Defendants claim that Plaintiff violated a policy by
shopping for personal items on Defendant BOE’s computer. Again, they
worked closely with Plaintiff and can testify to her work-habits.
Further, Defendants allege that Plaintiff destroyed records after
her non-renewal as Superintendent. Again, they will likely be needed
to testify to this fact which is vehemently denied by Plaintiff.
Finally, Defendants claim the Plaintiff authorized her daughter and
her daughter’s boyfriend to be employed and work the athletic events
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without the Board’s permission. Counsel, frequently appearing at
Board meetings, would be a likely witness to the facts surrounding
the allegations which is raised for the first time in the Defendants
counterclaim.
Due to counsels previous representation of Plaintiff, they
possess knowledge that would be helpful in almost every aspect of
this litigation. According to the Rules of Professional Conduct
therefore, the Sciarrillo Law Firm cannot represent Defendants in
this matter.
B. The Sciarrillo Law Firm does not meet any of the three
exceptions to R.P.C. 3.7 because their testimony; 1) would
be contested, or 2) would not relate to the nature and
extent of legal services rendured, and their testimony
would not cause a substantial hardship on defendants.
R.P.C. 3.7 allows the attorney-witness to continuing
representing the client and offer testimony only when it relates to
an uncontested issue, relates to the nature and value of legal
services provided, or when disqualification of the attorney will
work a substantial hardship on the client. R.P.C. 3.7(a)(1)-(3).
Here, content of Mr. Sciarrillo and Mr. McKeever’s testimony
would be disputed because it involves Plaintiff’s performance as
Superintendent. Such information is a key issue in the present
matter. Therefore, the first exception to R.P.C. 3.7 does not
apply.
Additionally, Mr. Sciarrillo and Mr. McKeever’s testimony
would not fall within the second exception. Their knowledge does
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not relate to the nature and value of legal services he provided
to Defendants. Instead, it relates to the factual disputes alleged
in Plaintiff’s Complaint and Defendants’ Counterclaim.
Lastly, the Sciarrillo Law Firm’s disqualification as
attorneys for Defendant does not work a substantial hardship on
the Defendants. In interpreting the “substantial hardship”
requirement with respect to identical provisions of R.P.C. 1.7 and
1.9, courts consider the client’s interest in choice of counsel in
tandem with potential violations of ethics rules. Freeman v.
Vicchiarelli, 827 F. Supp. 300, 304-05 (D.N.J. 1993).
When examining the “client’s interest,” courts consider “the
amount of time and money invested by the client in his counsel, as
well as the proximity of the trial in determining whether
disqualification of counsel would unduly prejudice the client.”
Id. at 304-305. Any difficulty the client may in face in obtaining
alternative counsel does not factor into the substantial hardship
inquiry. Id. In Freeman, the court held that disqualifying the
plaintiff’s attorney before significant expenses and discovery has
occurred did not unduly prejudice the plaintiff in his attempt to
prepare his case for trial. Id. at 304.
The interest in maintaining the integrity of the fact-finding
process and professional standards will outweigh the client’s
interest in choice of counsel a majority of the time.
16
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The client’s interest will only prevail in the case of unusual
circumstances. For instance, in Dewey v. R.J. Reynolds Tobacco
Co., the New Jersey Supreme Court denied a motion to disqualify
counsel because counsel had already vested over 1800 hours in
preparing for trial and because the proximity of the trial date
would have made it difficult for another attorney to adequately
prepare the case. 109 N.J. 201, 218-218 (1988).
Similarly, in Alexander v. Primaerica Holdings, Inc., the
court denied a motion to disqualify counsel because opposing
counsel waited until the eve of trial to move for disqualification.
The court inferred that counsel presented the motion only for
strategic purposes because a substantial amount of time and money
had already been invested by defense counsel and obtaining an
alternative counsel would delay litigation. 822 F.Supp. 1099, 1118
(D.N.J. 1993).
In this instance, Defendants will not be unduly prejudiced by
the recusal of the Sciarrillo Law Firm. This case does not contain
the extenuating circumstances present in Dewey v. R.J. Reynolds
Tobacco and Alexander v. Primaerica Holdings, Inc.. To the
contrary, the Sciarrillo Law Firm, acting as counsel for Defendants
has not invested significant time and expenses in preparing for
trial in this matter. Here, Defendants have not responded to
discovery at all.
17
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Finally, Plaintiff's counsel prior to the filing of an Answer
and Counterclaim reached out to the Defendants counsel to discuss
the conflict and ask them to voluntarily withdraw as counsel. No
response was received and instead Defendant's filed their Answer
and Counterclaim.
Thus, Defendants will not be unduly prejudiced or face
substantial hardship from the Sciarrillo Law Firm's recusal from
the case because they have not invested a significant amount of time
and money in the matter. Furthermore, the present motion is timely
as discovery has not been exchanged by the parties. Thus, the need
to maintain standards of professional conduct outweighs the
Defendants' interest in choice of counsel because they will not
suffer substantial hardship in obtaining alternative counsel.
Consequently, Plaintiff's motion for an Order to Recuse the
Sciarrillo Law Firm as counsel for the Defendants should be
granted.
CONCLUSION
For the above stated reasons, the Plaintiff respectfully
request that the Court recuse the Sciarrillo Law Firm as counsel
to Defendants in this action.
.ly submitted.
Ian Genitempo, Esq.
Dated: June 5, 2019
18
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PROOF OF MAILING
I hereby certify that on June 5, 2019 Plaintiff’s Notice of
Motion to Recuse, Certification of Alan Genitempo, Esq.,
Certification of Louise Clarke, Brief in Support, and Proposed
Order, has been electronically filed with the Clerk, Superior Court
of New Jersey, Passaic County Courthouse 77 Hamilton Street,
Paterson, NJ 07505, and has been electronically served upon all
counsel of interest within the time permitted by the Rules of
Court, by Federal Express to Hon. Ernest M. Caposela, J.S.C. and
electronic filing to , addressed as follows:
Hon. Ernest M. Caposela, J.S.C.
Passaic County Courthouse
77 Hamilton Street, 6th Floor
Paterson, NJ 07505
Dennis McKeever, Esq.
SCIARRILLO, CORNELL, MERLINO,
MCKEEVER & OSBORNE, LLC
238 St. Paul Street,
Westfield, NJ 07090
_/s/ Layne Chiaravalloti_______
Layne Chiaravalloti
PAS-L-000533-19 06/05/2019 11:24:42 AM Pg 1 of 8 Trans ID: LCV2019983145
PIRO, ZINNA, CIFELLI, PARIS £ GENITEMPO, LLC
360 PASSAIC AVENUE
NUTLEY, NEW JERSEY 07110
973-661-0710
Alan Genitempo, Esq. I.D. 023181987
Attorneys for Plaintiff, Louise Clarke
LOUISE CLARKE SUPERIOR COURT OF NEW JERSEY
LAW DIVISION: PASSAIC COUNTY
DOCKET NO.: PAS-L-533-19
Plaintiff,
Civil Action
CERTIFICATION OF LOUISE CLARKE
CARLSTADT-EAST RUTHERFORD
BOARD OF EDUCATION a/k/a
BECTON REGIONAL SCHOOL
DISTRICT, ROBERT ANDERSON,
JOHN DOES 1-10 AND ABC CORPS.
1-10 (fictitious names
representing any unknown
defendants)
Defendants
LOUSIE CLARKE, of full age, hereby certifies as follows:
1. I am the Plaintiff in the above-captioned action and
make this Certification in support of the within motion to Recuse
the law firm of Sciarrillo, Cornell, Merlino, Mckeever and Osborne
as counsel for Defendants Defendant Carlstadt-East Rutherford
Board of Education a/k/a Becton Regional School District
("Defendants BOE") I have been an employee of the Defendant BOE
for 38 years since I began in February of 1981. I rose to the
position of Superintendent on July 1, 2014
2. Prior to 2012, the Sciarrillo Law Firm provided legal
services for the Defendant BOE.
PAS-L-000533-19 06/05/2019 11:24:42 AM Pg 2 of 8 Trans ID: LCV2019983145
3. Gary Bowen ("Mr. Bowen") acted as the interim
Superintendent of Defendant BOE from 2012 and 2014.
4. Approximately around 2013, Mr. Bowen fired the
Sciarrillo Law Firm due to the fact that their office failed to
return phone calls.
5. After 2014, after Bowen left and I took over as
Superintendent the Defendant BOE rehired the Sciarrillo Law Firm,
who have continued to provide legal services for the District to
this day.
6. One morning after the re-hiring, Mr. Sciarrillo appeared
unannounced at my office and introduced himself. Shortly after,
he began saying to me how he knows that I do not like him because
of Dr. Bowen and that I am "Zitomer's Girl". I replied that it
didn't matter to me who the attorney was and that I would be happy
to work with him.
7. Over the years, Mr. Sciarrillo frequently appeared at
the board meetings that took place at Defendant BOE.
8. Dennis McKeever, another attorney from the Sciarrillo
Law Firm, handled everything relevant to the everyday business of
the District.
9. While Dennis McKeever performed the everyday duties of
Board Attorney from the very beginning. Mr. Sciarrillo would appear
for a Board meeting on occasion, however, Dennis McKeever handled
everything relative to the everyday business of the District.
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10. Mr. McGeever had many discussions with me concerning
pending grievances from various employees, as well as concerns
over the Bononno and Di Domenico lawsuits both of which I was named
as a defendant and for which he defended me.
11. On May 19, 2017 I received a call from Dennis McKeever.
He inquired as to what the politics were surrounding Annette
Giancaspro's appointment to Athletic Director and her subsequent
receipt of tenure. I explained that there are BOB members who
support James Bononno even though he was let go from the position
in May of 2014 and waived his rights to any claim to the position
through a settlement agreement. We had a long conversation not
only about how the Board wanted Ms. Giancaspro removed from the
position but also on how the Board v/as demonstrating gender bias
displayed toward her and myself. We also discussed how I was not
going to do anything to Ms. Giancaspro and her job because in my
opinion she was effective in her position.
12. In the spring of 2018 from approximately March to June
2018, Dennis McKeever and another attorney, Jennifer Osborne, had
many discussions with me while working on seniority issues within
the District. There was another female attorney, (I do not recall
her name) I sat with to go through Mr. Bononno's file and who
covered Board meetings.
13. During the summer of 2017, I spoke with Mr. McKeever
concerning the fact that my Superintendent's contract contained a
PAS-L-000533-19 06/05/2019 11:24:42 AM Pg 4 of 8 Trans ID: LCV2019983145
clause that stated that if the State of New Jersey changed the cap
on Superintendent's salaries, I had the right to renegotiate my
contract. He said he understood, asked me what I was looking for
and I told him I wanted to make it to my 40*^^ year in education.
He said, "I can do that". Weeks passed and when I inquired again,
he stated, "you know how this board is, they are crazy. I didn't
get anywhere."
14. On April 24, 2018 I had a phone conversation with Tony
Sciarrillo regarding a letter sent to Mr. Bononno regarding his
certification or lack thereof. Sciarrillo became very defensive
and argumentive with me on the phone when I mentioned his rhetoric
from the Executive Session on April 18, 2018. He referred to
someone "dropping a dime" on Mr. Bononno to the Department of
Education. He and his partner, Dennis McKeever, knew that I as
Superintendent inquired to the State as to why Mr. Bononno had no
listing of a Supervisor Certificate on the State website. This was
my responsibility and I was being criticized for it by the very
lawyers who were supposed to be helping me enforce state law. At
the meeting of April 18, 2018, Mr. Sciarrillo had made very
unprofessional and disparaging remarks concerning the prior
Superintendent Dr. Bowen. I believe this showed his lack of respect
for the office of Superintendent.
PAS-L-000533-19 06/05/2019 11:24:42 AM Pg 5 of 8 Trans ID: LCV2019983145
15. Mr. Bononno had filed a grievance seeking the position
as a Supervisor and that is how I realized that he lacked the State
required certificate.
16. Mr. Sciarrillo said that I did not respect him as an
attorney or his firm and began raising his voice to intimidate me.
He said that he had made those comments because he assumed that it
was someone from the audience and/or Board member who had turned
Bononno in.
17. On Friday, June 15, 2018, I spoke to Dennis McKeever at
approximately 1:31 pm concerning the BOE meeting of June 13, 2018.
During the conversation, I addressed the verbal abuse that I was
subjected to at Mr. Bononno's grievance hearing and that neither
the Board president, Robert Anderson nor Mr. Sciarrillo did
anything to stop it. Dennis agreed that it was inappropriate and
should never had happened. He also said that Mr. Bononno should
have reprimanded by me but that I was in a difficult spot because
the BOE favored Mr. Bononno and I would be entering a political
nightmare. He stated that "your hands are tied". He also told me
that I would be receiving a copy of his opinion in the case because
he knows how the board is and he wants to ensure that they know
the consequences. He also said that he understands that actions
taken (by the BOE) could put my certification in jeopardy. I told
him that I was waiting to hear the opinion of the Department of
Education.
PAS-L-000533-19 06/05/2019 11:24:42 AM Pg 6 of 8 Trans ID: LCV2019983145
18. Mr. McKeever also told me during this time that the Board
was displeased with him over the fact that he agreed with me and
found that Mr. Bononno had no rights to the position of Supervisor.
19. Mr. McKeever made remarks to Ms. Maria Lepore, attorney
for the ASA, the Superintendent's Association, on August 1, 2018
stating among other things that if I came back to the District
invoking my rights as a tenured Supervisor and teacher, that "the
Board would make my life a living hell". Perhaps that is why they
have filed a frivolous Counterclaim against me.
20. On the morning of August 1, 2018, I received a call at
approximately 10:00 am from Mr. Sciarrillo telling me that he
usually does not do this over the phone, however, he said that I
was not going to be renewed at the BOB meeting that evening. He
was very matter of fact.
21. It should be noted that Mr. Sciarillo has had a long-
term relationship with Mr. Annitti the BOB's Business
Administrator, having been his professor and/or mentor in
receiving his certificate for Business Administrator. Mr. Annitti
is the person who undermined me the most at the BOB. The Sciarrillo
office offers classes to candidates who are seeking certification.
At the last board meeting he attended, Mr. Belten of the Board of
Bducation mentioned how he had seen his home and Mr. Sciarillo
said that he should drop by.
PAS-L-000533-19 06/05/2019 11:24:42 AM Pg 7 of 8 Trans ID: LCV2019983145
22. Also, Mr. Sciarrillo inappropriately wrote a letter to
me telling me to stay out of a finance committee meeting, which as
Superintendent I have every right to attend and should attend.
23. The attorneys at the Sciarrillo Law Firm had many
discussions with me about pending grievances from various
employees some of which I was a named Defendant.
24. Due to my previous employment with Defendant BOB, the
Sciarrillo Law Firm represented me on various legal matters that
occurred within District.
25. It is for these aforementioned reasons that I submit
this certification in support of an Order to Recuse the entire
Sciarrillo as counsel for Defendants.
26. It is clear that the firm of Sciarrillo, Cornell,
Merlino, McKeever and Osborne have represented me or at least
engaged in highly confidential discussions regarding my role as
Superintendent. It is also clear that they are behind the
salacious, untrue and frivolous Counterclaim that has been filed
against me and that many of the attorneys, including Sciarrillo,
and McKeever will be called as witnesses in my case against the
BOE and my defense to the frivolous Counterclaim.
27. As such they should not be allowed to continue as counsel
for the defendants in this case.
PAS-L-000533-19 06/
Preview
PAS-L-000533-19 06/05/2019 11:24:42 AM Pg 1 of 2 Trans ID: LCV2019983145 PIRO, ZINNA, CIFELLI, PARIS & GENITEMPO, LLC 360 PASSAIC AVENUE NUTLEY, NEW JERSEY 07110 973-661-0710 Alan Genitempo, Esq. I.D. 023181987 Attorneys for Plaintiff, Louise Clarke LOUISE CLARKE SUPERIOR COURT OF NEW JERSEY LAW DIVISION: PASSAIC COUNTY DOCKET NO.: PAS-L-533-19 Plaintiff, Civil Action V. NOTICE OF MOTION TO RECUSE CARLSTADT-EAST RUTHERFORD DEFENDANTS' COUNSEL BOARD OF EDUCATION a/k/a SCIARRILLO, CORNELL, MERLINO BECTON REGIONAL SCHOOL MCKEEVER & OSBORNE, LLC DISTRICT, ROBERT ANDERSON, JOHN DOES 1-10 AND ABC CORPS. 1-10 (fictitious names representing any unknown defendants) Defendants PLEASE TAKE NOTICE that on June 21, 2019 at 9:00 o'clock in the forenoon, or as soon thereafter as counsel may be heard, the undersigned, attorney for the Plaintiff, will move before the Superior Court of New Jersey, Law Division, Passaic County, for an Order for the recusal of Defendant's counsel from the case. PLEASE TAKE FXJRTHER NOTICE that Plaintiff shall rely upon the annexed Certifications and Legal Brief submitted in support of the Motion. PLEASE TAKE FURTHER NOTICE that a proposed from of Order is submitted herewith. PAS-L-000533-19 06/05/2019 11:24:42 AM Pg 2 of 2 Trans ID: LCV2019983145 PLEASE TAKE FURTHER NOTICE that oral argument is requested if this Motion is opposed. PIRO, ZINNA^CIFELLI, PARIS & GENITEMf^ yLLC Attorne^ far Plaintiff '^ALAN GENITEMPO Dated: June 5, 2019 PAS-L-000533-19 06/05/2019 11:24:42 AM Pg 1 of 2 Trans ID: LCV2019983145 PIRO, ZINNA, CIFELLI, PARIS & GENITEMPO, LLC 360 PASSAIC AVENUE NUTLEY, NEW JERSEY 07110 973-661-0710 Alan Genitempo, Esq. I.D. 023181987 Attorneys for Plaintiff, Louise Clarke ______________________________ LOUISE CLARKE : SUPERIOR COURT OF NEW JERSEY : LAW DIVISION: PASSAIC COUNTY : DOCKET NO.: PAS-L-533-19 Plaintiff, : : Civil Action v. : : ORDER TO RECUSE CARLSTADT-EAST RUTHERFORD : BOARD OF EDUCATION a/k/a : BECTON REGIONAL SCHOOL : DISTRICT, ROBERT ANDERSON, : JOHN DOES 1-10 AND ABC CORPS. : 1-10 (fictitious names : representing any unknown : defendants) : : Defendants : __ : THIS MATTER having been opened to the Court by Alan Genitempo, Esq., of Piro, Zinna, Cifelli, Paris & Genitempo, LLC., attorneys for Plaintiff, Louise Clarke, for an Order for the recusal of Defendants’ counsel and the Court having considered the matter for good cause having been shown; IT IS on this day of , 2019; ORDERED that Defendants’ counsel, the firm of SCIARRILLO, CORNELL, MERLINO, MCKEEVER & OSBORNE, LLC., hereby are disqualified as PAS-L-000533-19 06/05/2019 11:24:42 AM Pg 2 of 2 Trans ID: LCV2019983145 counsel for the Defendants in the above-captioned matter pursuant to New Jersey Rules of Professional Conduct 1.9 and 3.7; and it is further ORDERED that Defendant’s shall have ______ days to obtain counsel and file a substitution of attorney ORDERED that a copy of this Order shall be served upon all parties herein with days of the date hereof. Honorable J.S.C. Opposed Unopposed 2 PAS-L-000533-19 06/05/2019 11:24:42 AM Pg 1 of 2 Trans ID: LCV2019983145 PIRO, ZINNA, CIFELLI, PARIS & 6ENITEMPO, LLC 360 PASSAIC AVENUE NUTLEY, NEW JERSEY 07110 973-661-0710 Alan Genitempo, Esq. I.D. 023181987 Attorneys for Plaintiff, Louise Clarke LOUISE CLARKE SUPERIOR COURT OF NEW JERSEY LAW DIVISION: PASSAIC COUNTY DOCKET NO.: PAS-L-533-19 Plaintiff, Civil Action CERTIFICATION OF COUNSEL CARLSTADT-EAST RUTHERFORD BOARD OF EDUCATION a/k/a BECTON REGIONAL SCHOOL DISTRICT, ROBERT ANDERSON, JOHN DOES 1-10 AND ABC CORPS, 1-10 (fictitious names representing any unknown defendants) Defendants I, ALAN GENITEMPO, ESQ., hereby certify as follows: 1. I am a Partner with the Law Firm of Piro, Zinna, Cifelli, Paris & Genitempo, L.L.C. and I represent the Plaintiff in this matter. 2. I make this Certification in Support of Plaintiff's Motion Recuse Defendants' Counsel Sciarrillo, Cornell, Merlino Mckeever & Osborne, LLC. 3. I am familiar with the history of the within matter. 4. Prior to the filing of an Answer and Counterclaim I contacted Defendants counsel to discuss the obvious conflict and definite need for their testimony and discovery in this matter, PAS-L-000533-19 06/05/2019 11:24:42 AM Pg 2 of 2 Trans ID: LCV2019983145 5. Seeking to recuse a fellow attorney is not something I take lightly and as such I contacted defense counsel, prior to the filing of this motion and prior to the filing of their Answer and frivolous Counterclaim which they filed against Plaintiff, to ask them to voluntarily withdraw as counsel. No response was received and instead Defendant's filed their Answer and Counterclaim. 6. For the reasons set forth in the accompanying brief. Certification of the Plaintiff Louise Clarke and this Certification it is respectfully requested that the Court grant Plaintiff's motion to recuse Sciarrillo, Cornell, Merlino Mckeever & Osborne, LLC as defense counsel in this instant matter. I certify that the foregoing statements made by me are true; I am aware that if any of the foregoing stat^m^nts made by me are willfully false, I am subject to punishmei ALAN GENITEMPO, ESQ. Dated: June 5, 2019 PAS-L-000533-19 06/05/2019 11:24:42 AM Pg 1 of 18 Trans ID: LCV2019983145 PIRO, ZINNA, CIFELLI, PARIS & GENITEMPO, LLC 360 PASSAIC AVENUE NUTLEY, NEW JERSEY 07110 973-661-0710 Alan Genitempo, Esq. I.D. 023181987 Attorneys for Plaintiff, Louise Clarke ______________________________ LOUISE CLARKE : SUPERIOR COURT OF NEW JERSEY : LAW DIVISION: PASSAIC COUNTY : DOCKET NO.: PAS-L-533-19 Plaintiff, : : Civil Action v. : : CARLSTADT-EAST RUTHERFORD : BOARD OF EDUCATION a/k/a : BECTON REGIONAL SCHOOL : DISTRICT, ROBERT ANDERSON, : JOHN DOES 1-10 AND ABC CORPS. : 1-10 (fictitious names : representing any unknown : defendants) : : Defendants : __ : ________________________________________________________________ BRIEF ON BEHALF OF THE PLAINTIFF IN SUPPORT OF THE MOTION FOR RECUSAL OF SCIARRILLO, CORNELL, MERLINO, MCKEEVER & OSBORNE, LLC AS COUNSEL FOR THE DEFENDANTS Alan Genitempo, Esq. On the brief PAS-L-000533-19 06/05/2019 11:24:42 AM Pg 2 of 18 Trans ID: LCV2019983145 PROCEDURAL HISTORY AND STATEMENT OF FACTS The Complaint in the present matter was filed by Plaintiff, Louise Clarke (“Plaintiff”) against Defendants, Carlstadt-East Rutherford Board of Education a/k/a Becton Regional School District (“Defendant BOE”) and Robert Anderson (“Defendant Anderson”) (collectively as “Defendants”). On February 2014, Plaintiff was appointed to the position of Superintendent of Defendant BOE. Plaintiff was the first female Superintendent in Defendant BOE’s history. Plaintiff was subjected to continuous verbal abuse from many of her peers during her tenure as Superintendent. Plaintiff suffered such verbal abuse because of her status as a woman and for diligently handling her responsibilities as Superintendent. One of Plaintiff’s peers claimed that Plaintiff only received the promotion to Superintendent because she performed a sexual act on another. Nick Annitti (“Mr. Annitti”), the Business Administrator for Defendant BOE, made several remarks throughout Plaintiff’s tenure as Superintendent. Mr. Annitti’s remarks were focused on Plaintiff’s gender and sexuality. Amongst other things, Mr. Annitti demanded that his confidential secretary ask Plaintiff whether she was engaging in a sexual affair with another employee. Plaintiff is married and Mr. Annitti’s comments and questions made her feel humiliated. 2 PAS-L-000533-19 06/05/2019 11:24:42 AM Pg 3 of 18 Trans ID: LCV2019983145 Mr. Annitti’s conduct continued when he was facing a complaint within the office. A former Superintendent, Dr. Centolanza, was set to investigate the claim but Mr. Annitti demanded a change of investigator by claiming the Plaintiff had a “relationship” with Dr. Centolanza. Once again, Plaintiff became upset, offended, and humiliated with the statements made by Mr. Annitti. On another occasion, Mr. Annitti approached Plaintiff and asked her whether she knew about two co-workers’ same-sex relationship that he just learned about. Again, Plaintiff was offended and humiliated with Mr. Annitti asking about her private, sexual matters of other employees. Mr. Annitti’s conduct towards Plaintiff went far beyond the sexual questions he posed to her. Mr. Annitti, along with several other members of Defendant BOE, constantly harassed and ridiculed Plaintiff’s performance as Superintendent. Mr. Annitti continuously slammed doors to his office and Plaintiff’s office, yelled at Plaintiff during business meetings, banged his fist on a table in efforts to rattle Plaintiff, and frequently uttered “bitch” while walking past Plaintiff. Mr. Annitti even referred to Plaintiff as “that fucking woman in the back” which directly referred to Plaintiff’s gender. Plaintiff was also subjected to various demeaning comments by one of the science teachers, Robert Di Domenico (“Mr. Di Domenico”) throughout her employment. Mr. Di Domenico was the former 3 PAS-L-000533-19 06/05/2019 11:24:42 AM Pg 4 of 18 Trans ID: LCV2019983145 Supervisor of Science and was terminated in or about May 2015. After Di Domenico learned about his termination, he yelled about Plaintiff and repeatedly screamed, calling her a “bitch.” During her tenure as Superintendent, Plaintiff contacted the State of New Jersey’s Department of Education Office to verify the certification of James Bononno (“Mr. Brononno”). Through her due diligence, Plaintiff discovered that Mr. Bononno’s certificate had been issued in error and the possession of such certificate was necessary for his proposed assignment. Plaintiff also reported to the New Jersey State Department of Education that Mr. Annitti’s financial reporting requirements were not filed in accordance with state statute. In fact, he was six months behind in his fillings. Plaintiff had a responsibility as Superintendent to operate the district and to be transparent and truthful and has always fulfilled the obligation required of her. As a result of Plaintiff performing her responsibilities and duties, she was retaliated against by several employees and members of the Board, including President, Defendant Anderson. Fred Meo (“Mr. Meo”) was the Board’s Vice President in 2017 and retaliated against Plaintiff after an email was sent to the Board President which raised questions about bypassing Plaintiff in the negotiations for giving out raises. Mr. Meo mistakenly believed that the email was actually sent at Plaintiff’s direction. When Plaintiff reached out to Mr. Meo to explain, he told Plaintiff 4 PAS-L-000533-19 06/05/2019 11:24:42 AM Pg 5 of 18 Trans ID: LCV2019983145 that he wouldn’t approve anything Plaintiff brings forward for the next school year as “punishment.” Mr. Meo also told Plaintiff that he had convinced the committee to meet about Plaintiff’s contract, but she could now “kiss that good-bye” as a result of the email that she did not send. Despite Plaintiff’s efforts to convince Mr. Meo and others that she had nothing to do with the email, Mr. Meo threatened Plaintiff to publicly denounce the email or things will “get worse for you.” Plaintiff was also retaliated against by several members of the Defendant Board. Larry Bongiovanni, Dennis Monks, and Kevin Felten verbally based Plaintiff throughout several Executive Sessions held. Mr. Annitti also retaliated against Plaintiff through the consistent and demeaning comments he made to Plaintiff and behind her back after she was forced to report that Mr. Annitti’s financials were behind schedule. On or about August 8, 2018, the chairman of the Personnel Committee, at the direction of the President, Defendant Anderson, placed a resolution before the Board to not renew Plaintiff’s contract for the 201-2020 school year. This item was not placed on the agenda as to not have the community members aware of what was going to take place and was without reason or basis except as retaliation for refusing to violate the law and for reporting the behavior of the Board Members and Annitti to the State. Subsequent to not being renewed, Plaintiff was advised by the Defendant 5 PAS-L-000533-19 06/05/2019 11:24:42 AM Pg 6 of 18 Trans ID: LCV2019983145 Anderson that she was suspended without charges being filed against her. Despite Plaintiff’s contract that provided her with employment rights, Plaintiff was suspended without notice or warning. Plaintiff subsequently filed a Complaint on February 11, 2019 in the Passaic County Superior Court in the Law Division, alleging sexual harassment, creation of a hostile work environment, gender discrimination, retaliation, wrongful termination, breach of contract, violation of the Equal Pay Act, violation of Plaintiff’s civil rights, and aiding and abetting under the New Jersey Law Against Discrimination. Defendant subsequently filed a Counterclaim against Plaintiff, which Plaintiff claims is utterly frivolous. Plaintiff now moves to recuse the firm of SCIARRILLO, CORNELL, MERLINO, MCKEEVER & OSBORNE, LLC (“Sciarrillo law firm”) from further representation of Defendants in this matter. The Sciarrillo law firm’s representation of Defendants in this matter is a violation of the Rules of Professional Conduct, Rule 1.9, which prohibits attorneys from representing a client where a conflict of interest exists. The Sciarrillo law firm previously represented Plaintiff while she was Superintendent of Defendant BOE. As a result, the Sciarrillo law firm has a duty towards Plaintiff and representing Defendants presents a clear conflict of interest. Additionally, the Sciarrillo law firm’s representation 6 PAS-L-000533-19 06/05/2019 11:24:42 AM Pg 7 of 18 Trans ID: LCV2019983145 violates, Rule 3.7, which disallows attorneys from acting as both a substantial witness as to every issue in a case. The Sciarrillo law firm is an advocate on behalf of the named Defendants in the present litigation. They are also essential witnesses with intimate knowledge of the underlying issues that resulted in the present litigation, including Defendant’s frivolous counterclaim. Additionally, their recusal would not work a substantial hardship on named Defendants in this matter because they have not invested substantial time in the matter. They have yet to respond to any discovery. The Sciarrillo law firm should be barred from representing Defendants. For the above stated reasons, Plaintiff respectfully requests that the Sciarrillo law firm be ordered to recuse themselves as counsel for Defendants in this matter. LEGAL ARGUMENT I. THE SCIARRILLO LAW FIRM’S REPRESENTATION OF DEFENDANT PRESENTS A CONFLICT BECAUSE HE PREVIOUSLY REPRESENTED PLAINTIFF WHEN SHE WAS THE SUPERINTENDENT OF DEFENDANT BOE. While a litigant generally has the right to freely choose his or her attorney, “a person’s right to retain counsel of his or her choice is limited in that ‘there is no right to demand to be represented by an attorney disqualified because of an ethical requirement’.” Oswall v. Tekni-Plex, Inc., 299 N.J. Super. 658, 670 (App. Div. 1997). New Jersey Rules of Professional Conduct 1.9, titled “Conflict of Interest: Former Client,” provides: 7 PAS-L-000533-19 06/05/2019 11:24:42 AM Pg 8 of 18 Trans ID: LCV2019983145 (a) A lawyer who has represented another client in the same or substantially related matter in which that client’s interests are materially adverse to the interests of the former client consents after a full disclosure of the circumstances and consultation with the former client; or (2) use information relating to the representation to the disadvantage of the former client or whether the information has become generally known. To begin analyzing a conflict issue under RPC 1.9, one must begin by determining the identity of the former client and whether the attorney’s representation creates an actual conflict vis-à-vis that former client. McCarthy v. John T. Henderson, Inc., 246 N.J. Super. 225, 230 (App. Div. 1991). If it is found that the lawyer is representing another client in the same or a substantially related matter in which the client’s interests are materially adverse to the interests of the former client, that lawyer shall be disqualified. Even where it is determined that the adverse party in the current litigation is not a former client of the attorney, the inquiry does not end there. A court must then inquire whether the attorney’s representation of a former client creates the appearance of impropriety and would lead “an ordinary knowledgeable citizen acquainted with the facts to conclude that the current adverse party should be considered a former client. Id. at 232. Interestingly, RPC 1.9(b) provides for disqualification of an attorney, solely based on the appearance of impropriety due to previous representation of another client, even if the adverse party in the current action was not actually the attorney’s former client. 8 PAS-L-000533-19 06/05/2019 11:24:42 AM Pg 9 of 18 Trans ID: LCV2019983145 If there is any doubt as to the propriety of an attorney’s representation of a client, such doubt must be resolved in favor of disqualification. Reardon v. Marylayne, Inc., 83 N.J. 460, 474 (1980). Attorneys owe fiduciary duties of both confidentiality and loyalty to their clients. New Jersey strictly construes RPC 1.9 and consequently, “is there be any doubt as to the propriety of an attorney’s representation of a client, such doubt must be resolved in favor of disqualification.” Id. An attorney-client relationship may be implied when (1) a person seeks advice or assistance from an attorney, (2) the advice or assistance sought pertains to matters within the attorney’s professional competence, and (3) the attorney expressly or impliedly agrees to give or actually gives the desired advice or assistance. Herbert v. Haytaian, 292 N.J. Super. 426, 436 (App. Div. 1996). The existence of an attorney-client relationship places upon the attorney the responsibilities set forth in the New Jersey Rules of Professional Conduct. Id. at 437. Under RPC 1.9 an attorney cannot represent a party in a “substantially related matter” in which that party’s interests are “materially adverse to the interests of the former client” nor can he “use information relating to the representation to the disadvantage of the former client.” emphasis added Id. Where such substantially related matters are present or when a reasonable perception of impropriety exists, the 9 PAS-L-000533-19 06/05/2019 11:24:42 AM Pg 10 of 18 Trans ID: LCV2019983145 court will assume that confidential information has passed between attorney and former client, notwithstanding the attorney’s declarations to the contrary. Id. at 438. The presumption of access to and knowledge of confidences may not be rebutted. Id. Here, an attorney-client relationship clearly existed between Plaintiff and the Sciarrillo law firm. Mr. Sciarrillo previously represented Plaintiff while she served as Superintendent to Defendant BOE. Mr. Sciarrillo and Mr. McKeever frequently appeared for board meetings and assisted her with various legal issues within the District. As a result, Plaintiff often consulted with Mr. Sciarrillo and Mr. McKeever pertaining to her work in a way she wouldn’t have absent an attorney-client relationship. Therefore, the Sciarrillo law firm received confidential information from Plaintiff that should not be allowed to be used to her disadvantage. Additionally, Plaintiff and the Sciarrillo law firm clearly have materially adverse interests. Plaintiff and the Sciarrillo law firm are on opposite sides of this litigations. Further, they represented Plaintiff in “substantially related matters” to the current litigation. Specifically, Mr. Sciarrillo and Mr. McKeever obtained information about Plaintiff’s work habits and decision-making. In the present litigation, Defendants attempt to defend themselves against Plaintiff’s discrimination, harassment, and wrongful termination claims. In other words, Defendants need to discredit Plaintiff. In fact, the entire basis of Defendants’ counterclaim is 10 PAS-L-000533-19 06/05/2019 11:24:42 AM Pg 11 of 18 Trans ID: LCV2019983145 that Plaintiff was unfit for her role as Superintendent. For Defendants to succeed in this lawsuit, they would need information pertaining to Plaintiff’s work-habits and decision-making. As a result, the Sciarrillo law firm is in a position to severally harm Plaintiff with the information they received during the previous representation. In sum, the Sciarrillo law firm seeks to switch sides and now represent Defendants after already representing Plaintiff in other similar matters. They seek to use all information they obtained while acting as Plaintiff’s attorney against Plaintiff. Possessing such information and disclosing it is clearly unlawful according to the Rules of Professional Conduct. II. THE SCIARRILLO LAW FIRM CANNOT REPRESENT DEFENDANTS BECAUSE THEY ARE DEFINITELY GOING BE NECESSARY WITNESSES IN THIS MATTER AND DO NOT MEET ANY OF THE THREE EXCEPTIONS TO R.P.C. 3.7. New Jersey Rules of Professional Conduct 3.7(a), titled “Lawyer as Witness” provides: (a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless: (1) the testimony relates to an uncontested issue; (2) the testimony relates to the nature and value of the legal services rendered in the case; or (3) disqualification of the lawyer would work substantial hardship on the client. RPC. 3.7. This motion for recusal is based on R.P.C. 3.7(a) because the counsel for Defendants, Mr. Sciarrillo and Mr. McKeever, are essential witnesses in the underlying matter and they have knowledge of virtually every event that resulted in this litigation. (See Plaintiff Clarke’s Certification) These issues are highly contested 11 PAS-L-000533-19 06/05/2019 11:24:42 AM Pg 12 of 18 Trans ID: LCV2019983145 and their testimony is of upmost importance at the trial of this matter. Further, they have not invested a significant amount of time in preparing this case, thus Defendants would not be unduly prejudiced by their recusal. A. Mr. Sciarrillo and Mr. McKeever are necessary witness in this matter because they possesses information pertaining to Plaintiff’s performance as Superintendent. R.P.C. 3.7(a) bars an attorney from representing a client when it is likely that he will be a necessary witness in the matter. This attorney-witness rule applies at the moment that an attorney knows or believes that he will be a witness at trial, which may be apparent before accepting employment from a client. Freeman v. Vicchiarelli, 827 F. Supp. 300, 303 (D.N.J. 1993). At that moment, the attorney has an obligation to either proceed as an advocate for the client or proceed as a witness Id. The Rules of Professional Conduct explicitly prohibit an attorney from acting both as an advocate and witness. Id.; R.C.P. 3.7(a). Further, Rule 3.7(a) does not require certainty that the attorney will be called upon as a necessary witness. State v. Dayton, 292 N.J. Super. 76, 84 (App. Div. 1996). Instead, an attorney who knows that it is merely “likely” that he will be called upon as a witness must recuse himself from the matter. Id. This serves the primary purpose of R.P.C. 3.7, which is to protect the client and maintain the integrity of the fact-finding process. Id. The conflicting roles of an attorney and witness undercut the integrity of the court’s ability to effectively 12 PAS-L-000533-19 06/05/2019 11:24:42 AM Pg 13 of 18 Trans ID: LCV2019983145 evaluate the issues at bar. Id. According, a court should allow an attorney to testify on necessary evidence in favor of permitting an attorney to stay on the case and forgoing the necessary testimony. Id.; see also Advisory Committee on Professional Ethics Opinion No. 233, 95 N.J.L.J. 206 (1972). Here, Mr. Sciarrillo and Mr. McKeever have first-hand knowledge of the factual circumstances that resulted in the present litigation. As a result, it is more than likely in fact definite that Mr. Sciarrillo and Mr. McKeever will be essential and necessary witnesses in this present litigation. They will have to provide testimony under oath relating to factual disputes in this case. Mr. Sciarrillo and Mr. McKeever worked extremely closely with Plaintiff during her time as Superintendent of Defendant BOE. Upon many other things, they attended all Board meetings and are close friends with Mr. Annitti. As a result, Mr. Sciarrillo and Mr. McKeever will likely be needed to testify about the alleged harassing & discriminating conduct suffered by Plaintiff. Mr. Sciarrillo was constantly around the building and likely has firsthand knowledge about such behavior from Defendants employees. Additionally, Mr. Sciarrillo and Mr. McKeever possess personal knowledge regarding certain decision-making issues Plaintiff made during her time as Superintendent. As mentioned above, Plaintiff’s ability to perform at her job is an important issue in this matter. Once again, counsel possess information that could assist in 13 PAS-L-000533-19 06/05/2019 11:24:42 AM Pg 14 of 18 Trans ID: LCV2019983145 unveiling the factual circumstances surrounding such issue due to his previous representation of Plaintiff. Therefore, counsel is likely to be needed to testify about Plaintiff’s job performance particularly in light of their baseless frivolous counterclaim. Being that Mr. Sciarrillo, Mr. McKeever and Plaintiff worked so closely together, it is highly unlikely that there is someone who possess more information about Plaintiff’s job performance than Mr. Sciarrillo and Mr. McKeever. Particularly in light of the facts illustrated in Plaintiff’s Certification. Plaintiff’s duties and responsibilities became a bigger issue in this matter after Defendants filed their counterclaims. Defendants first allege a breach of contract claim due to Plaintiff’s failure to perform as Superintendent in conformity with the provisions in the employment agreement. As previously stated, counsel possess information about Plaintiff’s work performance and therefore, will likely be needed to testify to that issue. Additionally, Defendants claim that Plaintiff violated a policy by shopping for personal items on Defendant BOE’s computer. Again, they worked closely with Plaintiff and can testify to her work-habits. Further, Defendants allege that Plaintiff destroyed records after her non-renewal as Superintendent. Again, they will likely be needed to testify to this fact which is vehemently denied by Plaintiff. Finally, Defendants claim the Plaintiff authorized her daughter and her daughter’s boyfriend to be employed and work the athletic events 14 PAS-L-000533-19 06/05/2019 11:24:42 AM Pg 15 of 18 Trans ID: LCV2019983145 without the Board’s permission. Counsel, frequently appearing at Board meetings, would be a likely witness to the facts surrounding the allegations which is raised for the first time in the Defendants counterclaim. Due to counsels previous representation of Plaintiff, they possess knowledge that would be helpful in almost every aspect of this litigation. According to the Rules of Professional Conduct therefore, the Sciarrillo Law Firm cannot represent Defendants in this matter. B. The Sciarrillo Law Firm does not meet any of the three exceptions to R.P.C. 3.7 because their testimony; 1) would be contested, or 2) would not relate to the nature and extent of legal services rendured, and their testimony would not cause a substantial hardship on defendants. R.P.C. 3.7 allows the attorney-witness to continuing representing the client and offer testimony only when it relates to an uncontested issue, relates to the nature and value of legal services provided, or when disqualification of the attorney will work a substantial hardship on the client. R.P.C. 3.7(a)(1)-(3). Here, content of Mr. Sciarrillo and Mr. McKeever’s testimony would be disputed because it involves Plaintiff’s performance as Superintendent. Such information is a key issue in the present matter. Therefore, the first exception to R.P.C. 3.7 does not apply. Additionally, Mr. Sciarrillo and Mr. McKeever’s testimony would not fall within the second exception. Their knowledge does 15 PAS-L-000533-19 06/05/2019 11:24:42 AM Pg 16 of 18 Trans ID: LCV2019983145 not relate to the nature and value of legal services he provided to Defendants. Instead, it relates to the factual disputes alleged in Plaintiff’s Complaint and Defendants’ Counterclaim. Lastly, the Sciarrillo Law Firm’s disqualification as attorneys for Defendant does not work a substantial hardship on the Defendants. In interpreting the “substantial hardship” requirement with respect to identical provisions of R.P.C. 1.7 and 1.9, courts consider the client’s interest in choice of counsel in tandem with potential violations of ethics rules. Freeman v. Vicchiarelli, 827 F. Supp. 300, 304-05 (D.N.J. 1993). When examining the “client’s interest,” courts consider “the amount of time and money invested by the client in his counsel, as well as the proximity of the trial in determining whether disqualification of counsel would unduly prejudice the client.” Id. at 304-305. Any difficulty the client may in face in obtaining alternative counsel does not factor into the substantial hardship inquiry. Id. In Freeman, the court held that disqualifying the plaintiff’s attorney before significant expenses and discovery has occurred did not unduly prejudice the plaintiff in his attempt to prepare his case for trial. Id. at 304. The interest in maintaining the integrity of the fact-finding process and professional standards will outweigh the client’s interest in choice of counsel a majority of the time. 16 PAS-L-000533-19 06/05/2019 11:24:42 AM Pg 17 of 18 Trans ID: LCV2019983145 The client’s interest will only prevail in the case of unusual circumstances. For instance, in Dewey v. R.J. Reynolds Tobacco Co., the New Jersey Supreme Court denied a motion to disqualify counsel because counsel had already vested over 1800 hours in preparing for trial and because the proximity of the trial date would have made it difficult for another attorney to adequately prepare the case. 109 N.J. 201, 218-218 (1988). Similarly, in Alexander v. Primaerica Holdings, Inc., the court denied a motion to disqualify counsel because opposing counsel waited until the eve of trial to move for disqualification. The court inferred that counsel presented the motion only for strategic purposes because a substantial amount of time and money had already been invested by defense counsel and obtaining an alternative counsel would delay litigation. 822 F.Supp. 1099, 1118 (D.N.J. 1993). In this instance, Defendants will not be unduly prejudiced by the recusal of the Sciarrillo Law Firm. This case does not contain the extenuating circumstances present in Dewey v. R.J. Reynolds Tobacco and Alexander v. Primaerica Holdings, Inc.. To the contrary, the Sciarrillo Law Firm, acting as counsel for Defendants has not invested significant time and expenses in preparing for trial in this matter. Here, Defendants have not responded to discovery at all. 17 PAS-L-000533-19 06/05/2019 11:24:42 AM Pg 18 of 18 Trans ID: LCV2019983145 Finally, Plaintiff's counsel prior to the filing of an Answer and Counterclaim reached out to the Defendants counsel to discuss the conflict and ask them to voluntarily withdraw as counsel. No response was received and instead Defendant's filed their Answer and Counterclaim. Thus, Defendants will not be unduly prejudiced or face substantial hardship from the Sciarrillo Law Firm's recusal from the case because they have not invested a significant amount of time and money in the matter. Furthermore, the present motion is timely as discovery has not been exchanged by the parties. Thus, the need to maintain standards of professional conduct outweighs the Defendants' interest in choice of counsel because they will not suffer substantial hardship in obtaining alternative counsel. Consequently, Plaintiff's motion for an Order to Recuse the Sciarrillo Law Firm as counsel for the Defendants should be granted. CONCLUSION For the above stated reasons, the Plaintiff respectfully request that the Court recuse the Sciarrillo Law Firm as counsel to Defendants in this action. .ly submitted. Ian Genitempo, Esq. Dated: June 5, 2019 18 PAS-L-000533-19 06/05/2019 11:24:42 AM Pg 1 of 1 Trans ID: LCV2019983145 PROOF OF MAILING I hereby certify that on June 5, 2019 Plaintiff’s Notice of Motion to Recuse, Certification of Alan Genitempo, Esq., Certification of Louise Clarke, Brief in Support, and Proposed Order, has been electronically filed with the Clerk, Superior Court of New Jersey, Passaic County Courthouse 77 Hamilton Street, Paterson, NJ 07505, and has been electronically served upon all counsel of interest within the time permitted by the Rules of Court, by Federal Express to Hon. Ernest M. Caposela, J.S.C. and electronic filing to , addressed as follows: Hon. Ernest M. Caposela, J.S.C. Passaic County Courthouse 77 Hamilton Street, 6th Floor Paterson, NJ 07505 Dennis McKeever, Esq. SCIARRILLO, CORNELL, MERLINO, MCKEEVER & OSBORNE, LLC 238 St. Paul Street, Westfield, NJ 07090 _/s/ Layne Chiaravalloti_______ Layne Chiaravalloti PAS-L-000533-19 06/05/2019 11:24:42 AM Pg 1 of 8 Trans ID: LCV2019983145 PIRO, ZINNA, CIFELLI, PARIS £ GENITEMPO, LLC 360 PASSAIC AVENUE NUTLEY, NEW JERSEY 07110 973-661-0710 Alan Genitempo, Esq. I.D. 023181987 Attorneys for Plaintiff, Louise Clarke LOUISE CLARKE SUPERIOR COURT OF NEW JERSEY LAW DIVISION: PASSAIC COUNTY DOCKET NO.: PAS-L-533-19 Plaintiff, Civil Action CERTIFICATION OF LOUISE CLARKE CARLSTADT-EAST RUTHERFORD BOARD OF EDUCATION a/k/a BECTON REGIONAL SCHOOL DISTRICT, ROBERT ANDERSON, JOHN DOES 1-10 AND ABC CORPS. 1-10 (fictitious names representing any unknown defendants) Defendants LOUSIE CLARKE, of full age, hereby certifies as follows: 1. I am the Plaintiff in the above-captioned action and make this Certification in support of the within motion to Recuse the law firm of Sciarrillo, Cornell, Merlino, Mckeever and Osborne as counsel for Defendants Defendant Carlstadt-East Rutherford Board of Education a/k/a Becton Regional School District ("Defendants BOE") I have been an employee of the Defendant BOE for 38 years since I began in February of 1981. I rose to the position of Superintendent on July 1, 2014 2. Prior to 2012, the Sciarrillo Law Firm provided legal services for the Defendant BOE. PAS-L-000533-19 06/05/2019 11:24:42 AM Pg 2 of 8 Trans ID: LCV2019983145 3. Gary Bowen ("Mr. Bowen") acted as the interim Superintendent of Defendant BOE from 2012 and 2014. 4. Approximately around 2013, Mr. Bowen fired the Sciarrillo Law Firm due to the fact that their office failed to return phone calls. 5. After 2014, after Bowen left and I took over as Superintendent the Defendant BOE rehired the Sciarrillo Law Firm, who have continued to provide legal services for the District to this day. 6. One morning after the re-hiring, Mr. Sciarrillo appeared unannounced at my office and introduced himself. Shortly after, he began saying to me how he knows that I do not like him because of Dr. Bowen and that I am "Zitomer's Girl". I replied that it didn't matter to me who the attorney was and that I would be happy to work with him. 7. Over the years, Mr. Sciarrillo frequently appeared at the board meetings that took place at Defendant BOE. 8. Dennis McKeever, another attorney from the Sciarrillo Law Firm, handled everything relevant to the everyday business of the District. 9. While Dennis McKeever performed the everyday duties of Board Attorney from the very beginning. Mr. Sciarrillo would appear for a Board meeting on occasion, however, Dennis McKeever handled everything relative to the everyday business of the District. PAS-L-000533-19 06/05/2019 11:24:42 AM Pg 3 of 8 Trans ID: LCV2019983145 10. Mr. McGeever had many discussions with me concerning pending grievances from various employees, as well as concerns over the Bononno and Di Domenico lawsuits both of which I was named as a defendant and for which he defended me. 11. On May 19, 2017 I received a call from Dennis McKeever. He inquired as to what the politics were surrounding Annette Giancaspro's appointment to Athletic Director and her subsequent receipt of tenure. I explained that there are BOB members who support James Bononno even though he was let go from the position in May of 2014 and waived his rights to any claim to the position through a settlement agreement. We had a long conversation not only about how the Board wanted Ms. Giancaspro removed from the position but also on how the Board v/as demonstrating gender bias displayed toward her and myself. We also discussed how I was not going to do anything to Ms. Giancaspro and her job because in my opinion she was effective in her position. 12. In the spring of 2018 from approximately March to June 2018, Dennis McKeever and another attorney, Jennifer Osborne, had many discussions with me while working on seniority issues within the District. There was another female attorney, (I do not recall her name) I sat with to go through Mr. Bononno's file and who covered Board meetings. 13. During the summer of 2017, I spoke with Mr. McKeever concerning the fact that my Superintendent's contract contained a PAS-L-000533-19 06/05/2019 11:24:42 AM Pg 4 of 8 Trans ID: LCV2019983145 clause that stated that if the State of New Jersey changed the cap on Superintendent's salaries, I had the right to renegotiate my contract. He said he understood, asked me what I was looking for and I told him I wanted to make it to my 40*^^ year in education. He said, "I can do that". Weeks passed and when I inquired again, he stated, "you know how this board is, they are crazy. I didn't get anywhere." 14. On April 24, 2018 I had a phone conversation with Tony Sciarrillo regarding a letter sent to Mr. Bononno regarding his certification or lack thereof. Sciarrillo became very defensive and argumentive with me on the phone when I mentioned his rhetoric from the Executive Session on April 18, 2018. He referred to someone "dropping a dime" on Mr. Bononno to the Department of Education. He and his partner, Dennis McKeever, knew that I as Superintendent inquired to the State as to why Mr. Bononno had no listing of a Supervisor Certificate on the State website. This was my responsibility and I was being criticized for it by the very lawyers who were supposed to be helping me enforce state law. At the meeting of April 18, 2018, Mr. Sciarrillo had made very unprofessional and disparaging remarks concerning the prior Superintendent Dr. Bowen. I believe this showed his lack of respect for the office of Superintendent. PAS-L-000533-19 06/05/2019 11:24:42 AM Pg 5 of 8 Trans ID: LCV2019983145 15. Mr. Bononno had filed a grievance seeking the position as a Supervisor and that is how I realized that he lacked the State required certificate. 16. Mr. Sciarrillo said that I did not respect him as an attorney or his firm and began raising his voice to intimidate me. He said that he had made those comments because he assumed that it was someone from the audience and/or Board member who had turned Bononno in. 17. On Friday, June 15, 2018, I spoke to Dennis McKeever at approximately 1:31 pm concerning the BOE meeting of June 13, 2018. During the conversation, I addressed the verbal abuse that I was subjected to at Mr. Bononno's grievance hearing and that neither the Board president, Robert Anderson nor Mr. Sciarrillo did anything to stop it. Dennis agreed that it was inappropriate and should never had happened. He also said that Mr. Bononno should have reprimanded by me but that I was in a difficult spot because the BOE favored Mr. Bononno and I would be entering a political nightmare. He stated that "your hands are tied". He also told me that I would be receiving a copy of his opinion in the case because he knows how the board is and he wants to ensure that they know the consequences. He also said that he understands that actions taken (by the BOE) could put my certification in jeopardy. I told him that I was waiting to hear the opinion of the Department of Education. PAS-L-000533-19 06/05/2019 11:24:42 AM Pg 6 of 8 Trans ID: LCV2019983145 18. Mr. McKeever also told me during this time that the Board was displeased with him over the fact that he agreed with me and found that Mr. Bononno had no rights to the position of Supervisor. 19. Mr. McKeever made remarks to Ms. Maria Lepore, attorney for the ASA, the Superintendent's Association, on August 1, 2018 stating among other things that if I came back to the District invoking my rights as a tenured Supervisor and teacher, that "the Board would make my life a living hell". Perhaps that is why they have filed a frivolous Counterclaim against me. 20. On the morning of August 1, 2018, I received a call at approximately 10:00 am from Mr. Sciarrillo telling me that he usually does not do this over the phone, however, he said that I was not going to be renewed at the BOB meeting that evening. He was very matter of fact. 21. It should be noted that Mr. Sciarillo has had a long- term relationship with Mr. Annitti the BOB's Business Administrator, having been his professor and/or mentor in receiving his certificate for Business Administrator. Mr. Annitti is the person who undermined me the most at the BOB. The Sciarrillo office offers classes to candidates who are seeking certification. At the last board meeting he attended, Mr. Belten of the Board of Bducation mentioned how he had seen his home and Mr. Sciarillo said that he should drop by. PAS-L-000533-19 06/05/2019 11:24:42 AM Pg 7 of 8 Trans ID: LCV2019983145 22. Also, Mr. Sciarrillo inappropriately wrote a letter to me telling me to stay out of a finance committee meeting, which as Superintendent I have every right to attend and should attend. 23. The attorneys at the Sciarrillo Law Firm had many discussions with me about pending grievances from various employees some of which I was a named Defendant. 24. Due to my previous employment with Defendant BOB, the Sciarrillo Law Firm represented me on various legal matters that occurred within District. 25. It is for these aforementioned reasons that I submit this certification in support of an Order to Recuse the entire Sciarrillo as counsel for Defendants. 26. It is clear that the firm of Sciarrillo, Cornell, Merlino, McKeever and Osborne have represented me or at least engaged in highly confidential discussions regarding my role as Superintendent. It is also clear that they are behind the salacious, untrue and frivolous Counterclaim that has been filed against me and that many of the attorneys, including Sciarrillo, and McKeever will be called as witnesses in my case against the BOE and my defense to the frivolous Counterclaim. 27. As such they should not be allowed to continue as counsel for the defendants in this case. PAS-L-000533-19 06/