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HomeMy Public PortalAbout1996/08/05 A Disciplinary Hearing was held by the Mayor and Council of the Borough ofCarteret on Monday, August 5, 1996, 7:00 P.M., Council Office, Municipal Building, 61 Cooke Avenue, Carteret, New Jersey. Upon individual roll call, the following were noted present: Mayor Peter 1. Sica Councilmember Deborah Bialowarczuk " " James Failace " " Jack Fazekas " " James O'Brien " " John Vesey Noted absent was Councilman William Feingold. Also noted present was Borough Attorney Robert A. Hedesh. Also noted present were Victor Kazio, Jr., Christine Kazio, Paul Mercatanti, Patrick DeBella and William Kolibas, Sr. The Clerk stated that on August 1, 1996, in compliance with the Open Public Meetings Act, a notice of tonight's meeting was sent to The Home News and Tribune, The Star Ledger and posted on the bulletin board The Clerk stated that the purpose of the meeting was to hold a disciplinary hearing regarding Victor Kazio, Jr. Mayor Sica asked if anyone was present representing Mr. Kazio. Paul Mercatanti said that he was representing him. He said that with him is Patrick DeBella, President of #2291, Vie Kazio and his mother, Christine. Mayor Sica stated that Robert Hedesh is representing the Borough of Carteret. Attorney Hedesh said that the issue is that under N.J. SA 2C: 51-2, a person that is convicted under a crime of the third degree, he submits to evidence, documents...a plea form...a business record, prepared in the normal course of business by the Middlesex County Court Criminal Division. It is a form, State vs. Victor Kazio. It indicates a guilty plea to count #4, being a distribution of CDS in a school zone. There was a plea agreement, a plea of guilty entered on 10/27/95. He Also attached thereto is a copy of2C:35-7, which is the statutory authority for count #4 which states that it is a violation of a third degree oftènse to distribute a controlled dangerous substance near or on school property. Any person who violates subsection a. by distributing, dispensing or possessing with an intent to distribute a controlled dangerous substance or controlled substance analog while on any school property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or within 1,000 feet of such school property or a school bus, or while on any school bus, is guilty of a crime of the third degree. That is what AUGUST 5, 1996 DISCIPLINARY HEARING August 5, 1996 ROLL CALL STATEMENT OF MEETING NOTICE PURPOSE OF MEETING DISCUSSION AUGUST 5, 1996 DISCIPLINARY HEARING -Continued he is submitting. He asked Mr. Mercatanti if he would like a copy. Mr. Mercatanti said that he never received a copy ofthe civil service papers. Attorney Hedesh asked if herequested it. Mr. Mercatanti ...(inaudible). Attorney Hedesh said that they were given to the employee. Mr. Mercatanti asked for a copy. Attorney Hedesh said no problem. Attorney Hedesh said that is the case. Mayor Sica asked Paul Mercatanti ifhe wanted to say anything. Mr. Mercatanti said that he and Mr. Hedesh talked on the telephone on 2 occasions regarding Mr. Kazio. Mr. Kazio was seeking outside counsel to get this plea lowered. From what he understands, Mr. Kazio is talking to the Wilentz, Goldman & Spitzer firm, Attorney Eric Marcy. Although Mr. Marcy is not representing him on this charge, he is representing Mr. Kazio to get the plea lessened. What they are requesting here is another thirty (30) day extension of Mr. Kazio's suspension until he gets that straightened out. After that time, if Mr. Kazio doesn't have it straightened out, of course, the Borough has to do what it has to do. He said that he would like Mr. Kazio to speak. Victor Kazio said that it was...(inaudible)...time ago, it wasn't really his fault. In a way it was, he knows that he did something wrong. He said that he is not that type of person. Everybody knows the job that he does. He is very good at his job. If there is anything that they know he can dO...he needs his job a lot, very much. The lawyer, Mr. Feingold should not have taken his case. Basically, he didn't want to go to court. He figured they could do something outside of the court. That is one of the reasons he pleaded guilty. He just wanted to get on with his life, get rid of the whole charge and everything all together. He really didn't know what he was getting into with losing his job. He didn't explain that, apparently, because he wouldn't be here if he did. That's why he is going to another law firm to represent him on this. Basically, that is all he has to say. He thanked the Mayor and Council. Attorney Hedesh asked if that was testimony. The response was inaudible. Attorney Hedesh asked Mr. Kazio if he knew that when he entered a plea, he pled to 3 years with an 18 month no parole eligibility. Mr. Kazio said that he talked to Mr. Feingold about that. At the time, he didn't know, that is why he is changing his lawyer. Ifhe knew that charge, he wouldn't be here. 2 Attorney Hedesh asked him if the judge ever informed that was the plea, when he entered into a plea agreement. Mr. Kazio said that what he was saying was that he wouldn't go to jail if he pleaded guilty. Attorney Hedesh asked who told him that. Mr. Kazio said that Mr. Feingold did. Attorney Hedesh asked him when he entered his plea in front of the court, if the judge informed him that the agreement was that counts # 1, #2 and #3 would be dismissed and count #4 carried a 3 year with an 18 month no parole eligibility. He asked if the judge told him that. Mr. Kazio said that apparently he did..(inaudible). Attorney Hedesh asked him when he filled out the plea form, if there was a section that asked if he was a public office holder or employee and that he would be subject to forfeit his employ. Mr. Kazio said that he really couldn't tell him. Attorney Hedesh asked if he answered the plea as yes, that he understood it. Mr. Kazio said that apparently yes, he did. Attorney Hedesh asked him when he entered this plea, if the judge informed him that he had the right to go to trial. Mr. Kazio said apparently. Attorney Hedesh asked if the judge so informed him that he had the right to not enter this plea and asked him if he understood the plea completely. Mr. Kazio said apparently. Attorney Hedesh asked him if he answered affirmative to all of those questions. Mr. Kazio said apparently. Attorney Hedesh said that Mr. Kazio is seeking now to withdraw his plea or to lesson his plea. He asked him if he was aware that even if he pled to counts #1, #2 and #3 and would not be subject to a mandatory jail term, he would still be guilty of a 3rd degree offense. He asked him if he was aware of that. Mr. Kazio's response was inaudible. Attorney Hedesh stated that despite the fact that he took this plea and he didn't know that he was going to lose his job, he agreed to go to jail for 18 months. Mr. Kazio said no He's working with... 3 Attorney Hedesh said that he doesn't have to tell him that. He understands that. He understands that there may be a modification of the sentence but not the plea. Mr. Kazio said yes. Attorney Hedesh said that the plea, the modification will not dispute count #4. It'll just lessen, it may modifY count #4 to count #3 so that the possibility of going to jail is removed. He asked if that was AUGUST 5, 1996 DISCIPINARY HEARING -Continued ~ AUGUST 5, 1996 DISCIPLINARY HEARING -Continued correct. Mr. Kazio said yes. Attorney Hedesh asked if it was m his agreement with the prosecutors. Mr. Kazio's response was inaudible. Attorney Hedesh said that he is trying to preserve the confidentiality for his sake that he has with the Prosecutor's Office for a number of , reasons but that would not lessen the degree of this offense. He asked if the prosecutors told him that. It would only eliminate his exposure to jail. Mr. Kazio said apparently. Mayor Sica said that what he is saying is that they can lessen his possibility of going to jail but it doesn't necessarily say that the crime was any less. Attorney Hedesh said that is correct. Mr. Kazio said that he is right. Attorney Hedesh explained to the Council that there is a mandatory 3 year jail term for distribution or the intent to distribute in a school zone. If in fact its a first offense, the prosecutor in his discretion, may determine that he will modifY the plea to allow for just a plain distribution, removing the school zone, thus remove the mandatory jail possibility. He asked Mr. Kazio if this was a first offense. Mr. Kazio said yes. Attorney Hedesh noted that there would not be a presumption of incarceration. It would still be a 3rd degree offense with no presumption of incarceration without that school zone. For various reasons, the Prosecutor, in his digression, can do that. Mayor Sica said the thing that kills it here is the school zone. That makes it automatic jail. If the prosecutor drops the school zone or allows to change the plea of the school zone and pleads to possession of CDS with intent to distribute or distributing of CDS, is one thing. Attorney Hedesh said that it is still a 3rd degree offense. The Mayor noted that it is still a 3rd degree offense no matter what but there's no presumption of jail. What this says is that he can go to jail for 1 year or whatever sentence it is, half of whatever sentence it is and he wouldn't be eligible for parole They can give him 3 years and he can go 18 months. Attorney Hedesh explained that what they are saying is that it is 3 years with 18 months. Without the plea agreement it would be 5 years with a 3 year stip under the statute. Pursuant to a plea agreement, he agreed to 3 years with an 18 month parole eligibility, short of any modification may affect up until that time. 4 Mayor Sica added that the shame of the thing is that he is sure that it's not something that he does on a day to day basis. He just got wrapped up into something that he didn't want to get wrapped up into AUGUST 5, 1996 Unfortunately, he paid a high price for some of this stuff. In some instances it's too high a price to pay. These laws are written. It's not written on one individual case. It's not saying well, this guy is a good guy who made a mistake and this guy is the guy that's selling to the kids and this guy is the guy who's selling allover the place. They don't make a differentiation in the law. The law is the law. That's the unfortunate thing. DISCIPLINARY HEARING -Continued Mayor Sica asked Mr. Mercatanti is he had anything else. Mr. Mercatanti said that he has a couple things to say. The Mayor said that they asked Mr. Kolibas to be here. Mr. Mercatanti said that he asked him to be here. The Mayor noted that he thought Vie asked him to be here to speak on his work habits. He said that they should do that so that he doesn't have to sit there. Mr. Mercatanti explained that he never had a problem with Vie on grievances. If anything, his record is good. He's done the work without complaints. Mayor Sica asked if they want to put Mr. Kolibas on to give his summation ofMr. Kazio's work habits. Paul Mercatanti said that he will after he says a few things. He noted that unfortunately, as he eXplained to Vic...(inaudible)...but he is seeking outside counsel. His indication rrom Vie, who stated this here, that he didn't realize that he would be losing his job. He believes that the attorney that represented him didn't tell him that he would be losing his job either. But that is hearsay. He can only speculate. He spoke with Vie last week and he told him the situation and he was shocked and said that he's better get another attorney. He said that he advised him to do that and he advised him to call Mr. Hedesh and tell him that he is seeking another attorney to get his plea changed. That is why they are asking to extend the suspension on this. It's basically up to the discretion of the council ifthey want to keep his suspension going until sometime when his attorney can come back and say he can do this or can't do this. The Mayor told Mr. Mercatanti that, at this point, the least of Vie's worries in all honesty, is losing his job. If he doesn't win this thing, if this thing changes, he's going to go to jail. Mr. Mercatanti said that Vie realizes that. "'5 Mayor Sica added that he thinks that is his biggest problem right now. Whether we keep him on tonight or not, if he wins and doesn't go to jail, he can always be reconsidered to come back to work. He doesn't have a problem with that. His big problem is staying out of jail. That's where he should be focusing his attention right now. He asked Mr. Kolibas ifhe would like to say something on Vie's work habits. Mr. Kolibas said that he would like to say one thing and one thing only. Vie has been a good worker. Anytime he's asked him to do something, he's always done it. He kept his nose clean. He came in on time, went home... was supposed to go home and did whatever he was supposed to do. He said that he has nothing bad to say about Vie and his work habits in the Park Department. He added that he would AUGUST 5, 1996 DISCIPLINARY HEARING -Continued gladly take him back. Mayor Sica asked if he had anything else to say. Mr. Mercatanti said that unfortunately, the way the regulations are written, it's cut and dry. Attorney Hedesh added that as he understands the plea agreement, there is no existing lesser degree available to him, in that, this was not a marijuana charge. Consequently, there is no lesser than 3rd degree in the plea If the plea gets taken back, it may get taken back for possession of CDS. He also knows of no existing case law that makes possibility of loss of employment a determination, a determination of whether it was entered knowingly in regards to the penalties, knowing the law, knowing you've got the right to a trial and that sort of thing. That's the standard by which a plea is determined. To say that I didn't know that I was going to lose my job, that is on the plea form and the court would certainly have informed him of that. He said that he is sure that Mr. Kazio just indicated that to them. Afscme Members -Exit At approximately 7:25 P.M., the Mayor asked Mr. Kazio, his mother and the Afscme representatives to leave so that the Governing Body could discuss this. Mayor Sica noted that he thinks what Hedesh is saying is that even if they wipe out count #4, school zone, it's still a 3rd degree offense and he's subject to losing his job for a 3rd degree offense. He asked ifhe was right. Attorney Hedesh said that his gut is... he doesn't know this rrom his attorney or any reliable source, there is absolutely no reason for the plea to have gone on 10/95 and him still to be unsentenced. It was scheduled for sentencing today he thinks. What happened, he senses, just...(inaudible)...modification, his attorney...and the judge is the kind that would have adjourned it at the drop of a hat. He doesn't see any problem there. What his gut reaction is, is that he has been cooperating significantly with the Prosecutor's Office. He said that is why he stopped him there. He said that he is sure that they are not going out there and telling the drug dealers but you don't know who else is in this room That is obviously confidential and he doesn't know that from any source whatsoever. Mayor Sica said that he is just assuming that. Otherwise, he would have been gone already. Attorney Hedesh said that he is just assuming it rrom some of the clients that he's had that were very good squealers. There is a very good chance that the prosecutor... the very fact that it was adjourned today and the prosecutor allowed it to be adjourned is because he is probably still cooperating and they just bring it up periodically to keep it on track. The prosecutor and his attorney agree to adjourn it one more time. 6 Councilman Vesey confirmed that he is saying that if they knocked out the school zone it would still be distributing. Attorney Hedesh said right. What they'll do is probably give it distribution or possession with intent to distribute. It removes the mandatory jail term. It doesn't remove the 3rd degree or the conviction. It just takes out the school zone case. Consequently, if you take out the school zone case, there is no mandatory jail term. It's a first...(inaudible)...that there be a presumption of non-incarceration anyhow. He would get 3 or 4 years probation or something like that. Councilman Failace asked if under any circumstances it could be 2nd degree. Attorney Hedesh said that 2nd degree is worse. Councilman Failace said he meant 4th. Attorney Hedesh said that there is no 4th degree. Councilman Failace asked if there was any way, that if they decide that they are going to let him go, that if it was completely changed and it wasn't that serious that he could be brought back. Attorney Hedesh said that there is no cocaine charge in municipal court. Cocaine is 3rd degree. The prosecutor's have already indicted. There is already a letter of indictment. There is already a plea here. It's not to the point that they're going to kick it back on a DP. They'll say that they'll give him the distribution and drop the school zone They're obviously pressing it because he understands that Kazio was in a bar that just is within the 1,000 feet of a school. As a criminal attorney, he'd have a problem with that. If anybody ever paid him enough, he'd like to take that on a civil rights case to show that somebody in an urban society which is, i.e. more minority than non- minority, could do the same offense here that they do in Ramsey but because they are within 1,000 feet of the school, having no kids involved, having no connection to the school, not near the school or anything else. ..11:00 at night, sitting in a bar... Mayor Sica added that if this thing made it by 50 feet, it was a lot. Attorney Hedesh noted that as a criminal attorney he has a problem with that but the law is the law He thinks that it was not the intent of the law when it was passed. Councilman Failace asked if this will stay a 3rd degree offense. Attorney Hedesh explained that he doesn't know of any lesser degree. Councilman Failace said that he was only looking at if it were possible to bring him back if anything changed. The Mayor said that is always possible. Attorney Hedesh said that the fact that this was in the paper. .He didn't know about it and wouldn't have known about it except that he happened to be sitting in court one day and they called his name on a sentencing. 7 The Mayor noted that this is the fallacy of the court system. Just suppose this involved a kid selling to a kid. He is still a firm believer that you're innocent until proven guilty and nobody should be fired until that time. You hear it everyday what the cops do. They get people and they are proven to be wrong. Even if he was selling to a kid he would not have suspended him until he had his day in court. Unfortunately, now it happens and the court doesn't even tell us about it. If it was a serious one, again, we wouldn't have known about it unless we pushed it. AUGUST 5, 1996 DISCIPLINARY HEARING -Continued AUGUST 5, 1996 DISCIPLINARY HEARING -Continued Councilman Failace asked if we are supposed to be notified. Attorney Hedesh said that it seems to him that probation should be the one notifYing us when they go for the pre-sentencing part. It seems that when he went over probation and he copped his plea that when he told them he works for the Borough, that they have some obligation to tell us about it. Councilman Failace asked why Paul Mercatanti would want a 30 day extension. Attorney Hedesh said that he talked to his attorney today and he doesn't really want to repeat it because...(inaudible)...some confidences but his goal is to keep the guy out of jail. The Mayor explained that with a 30 day extension he is still carried on the books that he is not fired, he is suspended. Being not fired, he still has the right to stay in the pension plan, stay in the hospitalization, the whole nine yards. Attorney Hedesh told the Council to do what they want. He said that he feels bad because he likes him. He called him today but he said that he can't talk to him...(inaudible)...attorney. He felt bad. He said that it looks like he is the guy that blew the whistle. An unidentified Councilman asked if we ever had cases like this in the past. He asked if it was Ercolino. Mayor Sica stated that it took him 3 times to fire Ercolino before they fired him Attorney Hedesh added that he never had a conviction until we fired him Mayor Sica noted that he never had a conviction even after we fired him. Attorney Hedesh added that this is another issue. Mayor Sica said that it is basically drugs. We've had it on numerous occasions already. We've had it where a cop is giving one of our street sweepers a summons for smoking marijuana driving a street sweeper. Fortunately, it wasn't a 3rd degree. We saved him but somewhere along the line this has got to stop. Councihnan Vesey said that unfortunately, he thinks that they have to follow suit. Councilman Failace said that rrom what he understands, they really don't have a choice.. (inaudible)...3rd degree, you forfeit your position. He doesn't know if there is any other way to read that. That's how he understands it. 8 Attorney Hedesh said that it says "shall". The Mayor noted that if it said "may", you have the option. If it says "shall", you don't have anything. He questioned how far anybody would push it if they didn't fire him Attorney Hedesh said that he can submit to him that if they don't fire him they are in violation of the criminal code and he doesn't advise them to do that. Mayor Sica said that the Council has the decision. Attorney Hedesh said that unlike the cops, the Council is the Appointing Authority. Mayor Sica explained that if it were the police, it would be strictly his decision. The Mayor suggested that if they wanted, he could ask for a motion for dismissal. That's all he can do. Councilman Vesey said that Mr. Kazio doesn't have to be called back m. Attorney Hedesh advised that he has a right to hear the vote. Councilman Failace said that they don't have a choice. Councilman Fazekas said that the only choice they have is to wait another 30 days. They still would have to vote yes now or 30 days rrom now. Attorney Hedesh noted that this should really have ben done around 10/95 but nobody knew about it. Mayor Sica said that now they know about it and if they dilly dally around they are subject to some problems. Councilman O'Brien asked if they don't do it are they in violation. Attorney Hedesh said that they would be in violation of a criminal statute. He said that he doesn't know what the penalty is. At approximately 7:40 P.M., Mr. Kazio and the Afscme representatives were called back into the meeting. Mayor Sica asked ifthere were any motions before the board Councilmember Bialowarczuk made a motion to dismiss Mr. Kazio. Councilman Vesey second the motion. The Municipal Clerk polled the Council and Councilmembers Bialowarczuk, Failace, Fazekas, O'Brien and Vesey voted in the affirmative. Councilman Feingold was noted absent. 9 Mayor Sica added that they couldn't go along with the 30 days under the statute. That's just the way it is. Nobody wanted to remove Vie. Unfortunately, this is what the law says. He asked the Council to hold in abeyance that, if in fact, his lawyer is successful in overturning this or whatever it is, if it gets to the point that we could put him back on, they will keep that open and he would be back on. Unfortunately, there is nothing they can do right now If, in fact, by some stroke of good luck on his part, he gets out of this mess and he hopes that he does.. ..His personal belief is that whatever he did doesn't constitute the punishment that they have to hand out right now. If he was selling to a kid or something like that, he wouldn't have to worry about coming here because he would be fighting with him outside He told AUGUST 5, 1996 DISCIPLINARY HEARING -Continued Afscme Members - Return AUGUST 5, 1996 DISCIPLINARY HEARING -Continued Mr. Kazio that nobody wants to remove him. He said that he spoke with Mr. Kolibas today and he assured him that Vie is the best worker he has down there. He guaranteed Mr. Kazio that if he is successful, he will get his job back. That's the best they can do at this point in time Mr. Kazio said thank you. ADJOURNED There being no further discussion, upon MMS&C, by Councilmembers Bialowarczuk and Failace and unanimous affirmative vote of the five (5) members present, the meeting adjourned at approximately 7:42 P.M. Respectfully submitted, ~Ph~~Z KATHLEEN M. BARNEY, RMë~ ) Municipal Clerk ------------------------------------------------------- ------------------------------------------------------- ------------------------------------------------------- 10