WILDWOOD – After city Solicitor Steve Morris expressed his legal opinion that it was OK for them to do so, the commissioners voted to hire an attorney on Wednesday, Feb. 14, to represent the city in a civil lawsuit filed by two of the commissioners against the city and three state agencies.
Morris said the lawyer who was hired, Eric Bernstein of Eric M. Bernstein & Associates LLC, would represent the city in the suit filed against it by Mayor Ernie Troiano and Deputy Mayor Steve Mikulski. The suit asks the court for a clear interpretation of the state statute that regulates how elected officials can participate in the state health benefits plan. The statute was amended in 2010 to say only persons who worked at least 35 hours per week could receive health benefits.
The civil suit was filed in the aftermath of the indictment of Troiano, Mikulski and former Mayor Pete Byron, who are accused by the state of falsifying time sheets to qualify for state health benefits. All three maintain they are innocent.
Morris said Troiano and Mikulski could vote to hire Bernstein if they were voting on the record. In addition, he said, neither man had chosen Bernstein. The solicitor said he recommended him in consultation with Commissioner Krista Fitzsimons and City Clerk Lisa Brown, who is the acting city administrator.
More importantly, the solicitor said, if Troiano and Mikulski abstained from the vote the measure would not pass; therefore, he said, the Doctrine of Necessity comes into play. The Doctrine of Necessity principle says that an administrative authority may take an action that might otherwise be contrary to established law as a way of restoring order or upholding constitutional principles. If the two commissioners were prevented from voting it would render the body powerless on this matter, Morris said.
“It’s almost a clerical or administerial action,” he said.
According to the civil lawsuit, the city was the “certifying officer” responsible for all duties relating to matters concerning the benefits plan and bears the responsibility for the matter. The city is named as a defendant in the complaint, along with three state agencies – the Department of Treasury’s Division of Pension and Benefits, the Health Benefits Commission and the Department of Law and Public Safety’s Division of Criminal Justice.
The suit asks the court to interpret the state law to say their use of the state health benefits program was appropriate.
Troiano, Mikulski and Byron each face a 12-count indictment, filed in August 2023, charging them with official misconduct, theft by unlawful taking, tampering with public records and falsifying or tampering with records. In December, Superior Court Judge Bernard E. DeLury Jr. rejected a request filed by Troiano’s attorney to have the charges against his client dismissed.
Troiano, according to the state, received benefits from July 2011 through December 2019, billing a total of $286,500 to the city and the state health benefits program. Byron was covered for $608,900 in premiums and claims from July 2011 through October 2021, and Mikulski, who joined city government in 2020, for more than $103,000, according to the state.
Contact the author, Christopher South, at csouth@cmcherald.com or 609-886-8600, ext. 128.
