Thursday, June 23, 2016

Hudson County to confidentially pay $50,000 to settle sheriff detective's lawsuit alleging retaliation for supporting current Sheriff's election opponent.

On June 23, 2016, the County of Hudson produced a draft agreement that calls for a $50,000 settlement of a retaliation lawsuit filed by a detective who supported present Sheriff Frank X. Schillari's opponent, former Sheriff Juan M. Perez, in the 2011 election. In addition to the $50,000, the plaintiff, who said that he was demoted in 2012, will be reinstated to his previously held position of Detective II and receive a $2,000 stipend retroactively to January 1, 2016 and "with appropriate allocation and contributions to the PFRS pension."

In his suit, Mark Borchert, who started his employment with the Sheriff's office in 1991 and who achieved the rank of Detective II in 2008, claimed that he was retaliated against for supporting Perez in his failed election bid.   Borchert said that after hurting his back in at work, his "light duty" assignment was to the Court Bureau where he "had to wear a heavy gun belt and was placed on the front door security detail causing him to be on his feet for a long period of time causing him pain."  He said his assignment was against the normal practice of assigning light duty to the Detective Bureau.  After returning to full duty, Borchert claimed that he was assigned tasks that were well below his level of training and competence. 

On February 24, 2012, the complaint alleges, Borchert was demoted to Sheriff's Officer and moved back to the Court Bureau after a meeting with Captain William Joy, Chief Warrant Officer Oliver King and Sergeant John Karras.  He said that he was demoted because of Sheriff Schillari's desire to retaliate against him for having supported Perez.  He said that Schillari replaced him "with individuals who are younger and less experienced" and that Schillari was "promoting and favoring those "who continue to support and buy fundraising tickets for his campaign."

The case is captioned Borchert v. County of Hudson, et al, Federal Case No. 2:13-cv-06531 and Borchert's attorney was Robert M. Anderson of Allenhurst.  Case documents are on-line here.

The settlement agreement contains a confidentiality clause, which prevents the parties to the suit from publicly disclosing the settlement terms.  Fortunately, however, these confidentiality clauses do not trump the public's right to obtain copies of settlement agreements that arise out of lawsuits in which a government agency or official is a defendant.

None of Borchert's allegations have been proven or disproven in court. Settlement agreements typically state that payment does not constitute an admission of wrongdoing by any of the defendants.  All that is known for sure is that Hudson or its insurer, for whatever reason, decided that it would rather pay Borchert $50,000 than take the matter to trial. Perhaps the defendants' decision to settle was done to save further legal expense and the costs of trying what were in fact exaggerated or meritless claims. Or, perhaps the claims were true and the defendants wanted to avoid being embarrassed at trial. This is the problem when cases settle before trial--it is impossible to know the truth of what really happened.

Note: The court marked the case as having settled.  While it is possible that a dispute will arise prior to the settlement agreement being signed by the County, this rarely happens because the settlement has been negotiated and agreed to by all the parties.  Readers who wish to be absolutely sure that this case settled according to the terms stated above should submit an Open Public Records Act (OPRA) request for the final, signed settlement agreement.