Yorktown board members have voted in favor of having an attorney represent Highway Superintendent Eric DiBartolo in a by a resident.
In the lawsuit, resident William LaPierre while in office. Many of LaPierre's allegations were detailed in an , which was released in August 2011.
The Yorktown's financial controls and alleged unethical behavior on behalf of its highway superintendent. DiBartolo has to any of the allegations.
The town is not named in the latest lawsuit, which seeks to "recoup damages" for the town.
"Town law provides that when an employee is being sued for a civil matter and the allegations are that the acts complained of were performed in the scope of his employment, the town has the duty to defend," Yorktown town attorney Jeannette Koster said.
The legal fees, she said, are not covered by the town's insurance because of the nature of some of the allegations and the remedies being sought. If DiBartolo loses the case, he may be ordered by the court to reimburse the town for its legal fees.
"The last thing I want is for this town to spend more money defending [DiBartolo]," said LaPierre, who is being sued by him for $1 million. "They shouldn't have to defend him because they'll be the recipients of the money I feel was misappropriated. Why defend against they money they could receive? Why not let it play out in court?"
LaPierre's attorney David Wright released a statement on Wednesday reiterating the suit seeks no personal damages for LaPierre, only recovery of funds that, the suit alleges, belong to the town.
"We carefully wrote the lawsuit to make sure that DiBartolo's defense expenses would not be paid by the town," Wright said in a statement issued March 14. "Specifically, we are not suing the town."
He said on March 13, Justice Lester Adler of Westchester County Supreme Court declined to sign an emergency stay application preventing the town from defending DiBartolo.
According to town code, as posted on their website, there are exceptions when defending a town employee: "This duty to provide for a defense shall not arise where such civil action or proceeding is brought by or on behalf of the Town of Yorktown." LaPierre said his suit is brought to seek damages on behalf of the town.
LaPierre said his lawsuit was a counter suit to DiBartolo's , dated Jan. 25, against him and another Yorktown resident Fred Gulitz after the previous one – which dealt with comments they made at a town board meeting last year – was thrown out in court.
"I would not be suing Eric [DiBartolo] if he didn't sue me first," LaPierre said. "DiBartolo sued me last year for slander for something that was said at a public meeting in which I did not speak. I can't continue to pay attorney fees because he is trying to silence my First Amendment right."
LaPierre, who is the owner of in Yorktown, said if DiBartolo apologizes for the defamation suit and drops it, he would do the same.
Yorktown supervisor Michael Grace said the local law requires the town to provide defense because essentially it allows people to do their job without having the threat that if they do something wrong, they'd be personally responsible and liable.
"This isn't foreign territory," he said, referencing to the town defending former supervisor Susan Siegel, who was . The town, however, was also named in the lawsuit.
In his lawsuit against LaPierre, DiBartolo is being represented by Amy Bellantoni. She also represented him in the case against Siegel, which is still in litigation.
Councilman Vishnu Patel voted against providing defense for the highway superintendent in the latest lawsuit. He said he thinks the town is "wasting time" when there are other issues to be taken care of.
He said a person is innocent until proven guilty in the court of law, but this particular issue has become political.
"If you have done something wrong, then you worry," he said.
This is not the first lawsuit brought against DiBartolo either. Former highway department worker Kyle Gulitz filed a suit in March 2008 after allegedly town employees had harassed him. Incidents included a worker allegedly bringing in a swastika armband and another giving Gulitz a Nazi salute.
In mid-November 2010 Gulitz . The town's insurance did not cover the legal bills throughout the lawsuit. In the settlement, the town admits to no wrongdoings and neither side acknowledges being at fault.
Koster said there have been no other legal fees or settlements the town has paid in connection to DiBartolo.
"There's been plenty of attorney time, in house, with Eric [DiBartolo], but that did not cost the town any money," she said.
DiBartolo could not be reached in time for publication.
The two lawsuits, the final state audit and "Opinions of the State Comptroller" (dated 1981) regarding taxpayers' suit have been attached to this article as pdf files.
Editor's Note: If DiBartolo loses the lawsuit case, he may be ordered by the court to reimburse the town for its legal fees. The money will not come out of the town's funds.