A settlement in a federal lawsuit brought against Oyster Bay over its public meeting rules has fallen apart over a disagreement on who would get a $20,000 payment from the town.
The town’s outside legal counsel and plaintiff Kevin McKenna’s lawyer give differing accounts of what had been agreed upon to settle the suit brought in the U.S. Eastern District Court in October. Jonathan Clarke, Farmingdale-based lawyer for McKenna, a blogger who brought the suit, said the town’s lawyers agreed to pay him $15,000 for legal fees and $5,000 to McKenna as part of the settlement. McKenna alleged in the lawsuit that a revised meeting "rules of decorum" adopted by the Town Board in October had violated his First Amendment rights.
Oyster Bay, however, has balked at cutting a check to McKenna, a frequent critic of Town Supervisor Joseph Saladino who regularly speaks at meetings. The town’s outside legal counsel Heidi Gootnick, of Manhattan-based Winget, Spadafora & Schwartzberg, LLP, said in a letter to Judge Anne Shields there was never any discussion about paying McKenna a portion of the $20,000.
In December U.S. District Judge Gary Brown dismissed the case as settled but gave McKenna leave to reopen it if the agreement was not consummated within 30 days of the Town Board’s Jan. 12 meeting. At that meeting, the Town Board amended its rules governing how public meetings are run and the limits of public participation. The parties are scheduled to return to a court teleconference on Monday.
The town’s lawyers "reached out to me … and said ‘we’re going to write a check to you but not to McKenna’ and I said that’s unacceptable I mean he’s getting the damage award not me," Clarke said in an interview. Clarke said it is unethical for lawyers to split legal fees with clients. Clarke said the town’s lawyers had agreed to pay McKenna damages rather than include a passage in revised meeting rules that said the town was required to follow state open meetings law.
Town spokesman Brian Nevin declined to be interviewed about the case but instead issued a statement Friday: "We have asked the judge to fully enforce the settlement and dismiss Kevin McKenna's poor attempt to line his pockets with thousands of taxpayer dollars. We will continue to protect taxpayers from all attempted money grabs."
McKenna said in a statement Friday that his suit was "about free speech not money" and he would not seek damages if the town adopts additional transparency measures.
"The offer still stands," McKenna said in his statement. "Write a law requiring the town to follow open meetings law, and I will forgo payment."
A draft of the settlement provided by Clarke said the payment would be made by the town’s municipal insurer ACE American Insurance Company.