A Superior Court judge is compelling the deposition of Mayor Judith Davies-Dunhour in the whistleblower suit filed against the borough by its former administrator, Robert Smith.
But Superior Court Judge James Pickering Jr., in his Oct. 28 order, also ruled that the scope of the questioning of the mayor would be limited during the deposition.
Smith sued the borough in October 2023, claiming he was fired because he attempted to get two members of the Zoning Board of Adjustment to file annual financial disclosure forms that were months overdue. One of those two individuals, Frank Gensemer, was married to a sitting member of the borough’s governing body, Jennifer Gensemer.
Smith further claims that his efforts to get the financial disclosure forms filed resulted in Jennifer Gensemer’s using her position on the council to orchestrate his removal as administrator. Smith claimed whistleblower status.
A year later, and after Jennifer Gensemer had been deposed in the case, Smith’s attorney, Franklin Rooks Jr., had to go to court to get an order to depose the mayor. In his motion, Rooks said the borough had engaged in an “unwarranted attempt to obstruct plaintiff’s legitimate efforts to depose” the mayor.
In a document filed with the court, Stone Harbor Counsel Anthony Bocchi denied that the borough impeded the taking of the mayor’s deposition. Bocchi argued that the deposition of Jennifer Gensemer had improperly sought “information unrelated to the claims in this case.”
“In light of Ms. Gensemer’s deposition, the borough developed a strategy to preclude the reoccurrence of such irrelevant questioning,” Bocchi said in his court filing. He went on to say that the borough’s intent was “to potentially file either a motion to bar [the mayor’s] testimony or seeking a protective order to limit the scope of questioning during the mayor’s deposition.”
The decision was made to seek a protective order, and it was granted by Pickering on Oct. 28.
In his order the judge said the deposition of Davies-Dunhour is to occur within the next 30 days. He also said, “The deposition of the mayor shall not include questions regarding personnel events, decisions and actions or non-actions taken or that occurred after plaintiff was terminated.”
Davies-Dunhour was supportive of Smith, and tension between the mayor and several members of the council was evident when the issue came up. Later events that will not be part of the deposition – given the protective order – saw comments made by the mayor concerning the hiring of Smith’s replacement result in Davies-Dunhour’s being censured by the council.
In May, Pickering ruled against a motion by Stone Harbor to have Smith’s suit thrown out. He did dismiss Smith’s allegations that his dismissal was a breach of contract, but allowed his claims under the Conscientious Employee Protection Act, commonly known as the Whistleblower Act, to go forward.
Smith had originally filed a $1.2 million tort claim against the borough before electing to go the whistleblower route in Superior Court.
Contact the reporter, Vince Conti, at vconti@cmcherald.com.
