Not-Stempler Review of 'CC Minority Agreement' with HoldCo

When GA got back from Sunday's City Council meeting, who do you think I called?

Not-Stempler, of course!  You know him; GA's legal department.

I had this in my hand:

Sorry about the falafel sauce- it's called tahini.  Pronounced TA-HEE-KNEE.  From Mamoun's, naturally.  They only charge $2.50 per falafel sandwich- how the hell do they stay in business? You've got to try one.  (Tell them GA sent you and they'll charge you $5.00 for 2.)

As I was saying... I called my highly-compensated legal department, Not-Stempler, who doesn't HAVE to eat falafel because the hardworking son-of-a-bitch makes $850/hour.  (Please don't tell him I called him a son-of-a bitch. He might start charging me.) The reason I called this well-paid legal whiz was for his opinion on the bizarre 'agreement' Mason had presented that night.

Not-Stempler, being the professional he is shared a few thoughts,  but told me he'd have to review Mason's presentation, press release and HoldCo letter referenced in her public comments before rendering a proper legal opinion.   What a professional.  

GA is no schlock bog. My experts are the real deal, worth every penny I don't pay them.

So here's what I received today.  Thank you, Not-Stempler.  

I have had the opportunity to review, in full, the Sunday council meeting as well as review the complete document that Ms. Mason refers to as her alleged agreement with the buyers of the hospital. While you generally present issues that have some merit, the claims by Ms. Mason regarding the content of the alleged agreement and its binding effect on the buyer and the City are figments of Ms. Mason’s imagination, which appears to be quite vivid.

The foregoing is a rather strong statement for me to make, but in the context of the matters that you have asked me for comment, the meeting and the explanation of the agreement/letter stands out for its utter lack of any legal basis and is either an outright fabrication or the product of delusional thought. If I have not actually heard Ms. Mason set forth her interpretation of the letter, I doubt that I would have believed that a public official could be so reckless. The letter is very craftily worded by its author (most likely an attorney for the buyer prepared for the buyer’s signature), and it clearly does not represent any agreement or binding obligation of the buyer or the City and is utterly unenforceable.

It is horn book law that a municipality can only act in accordance with the powers conferred upon it by statute. As a Faulkner Act municipality, the enabling statute does not create within Hoboken a separately recognized “Council minority” and there is no precedent that would confer upon the council minority (emphasis on minority) to bind the City in any event; especially in light of the fact that the functions related to the sale of the hospital have been properly delegated to the municipal hospital authority created for that purpose. It also does not appear that the Council minority had municipal legal representation during the course of its “negotiations”. Only duly retained council, paid for by the City, can assist and advise government officials in the discharge or exercise of their duties. Perhaps if the Council minority had the assistance of effective counsel, then the letter may have contained different terms.

It goes without further comment that there is no authority for the council minority members to act in any official capacity as representatives of the City to designate a board member of the buyer. The letter was addressed to the members in their official capacity, not as ordinary citizens of Hoboken. Therefore, any “rights” related to the unenforceable invitation extended to the minority members belong to the City, not any particular council members, subject to the provisions of the Faulkner Act. If anyone has the authority to accept such an invitation, it is the Mayor, who would make recommendations for the seat with the advice and consent of the Council. A majority vote of the council is all that would be needed to make such act official, to the extent that the City deems it advisable to have an additional government representative on the hospital board.

It appears that the council minority is striving to create a rump mayoralty position within the mayor/council form of government, which rump caucus has veto authority over the executive power granted to the Mayor. The Mayor of Hoboken is Ms. Zimmer. She is the executive charged under the Faulkner Act with the executive functions of the municipality. In many cases the council is called upon for its advice and consent, and in other matters (like the emergency designation) requiring a super majority for action of the City to be deemed effective. Such participation is not to be mistaken for usurpation of the executive function.

As to the actual contents of the letter, I had to listen to the proceedings several times, taking notes, because the summary of the letter which Ms. Mason gave bears no resemblance to the actual words and sentences contained in the letter. It would be a fundamental error to characterize the letter as any form of legally binding agreement. It is not necessary for me to go into great detail on this issue as the examples are so glaring. It would appear that the other members of the minority also believe that the agreement represents some kind of binding obligation on the City and the buyer. I would be curious to find out if that is, in fact, the case. If so, it would appear that you have a council minority that has a fundamental problem with reading comprehension. As to the general style and tone of the letter, it appears to me that the buyer carefully stroked Ms. Mason’s ego and smooth talked her into believing that the sun rises in the west. Kudos to its author.

I trust that the forgoing addresses your questions. It has been amusing to provide assistance regarding your situation in Hoboken. My colleagues frequently ask if you have deigned to give me yet another assignment that I can share with them. We actually have started to look forward to them, as your questions can be quite amusing.
Isn't Not-Stempler terrific?

And in case you missed Sunday's  Mason 'presentation' here it is, thanks to Greg Bond.


  1. home run, great post. this should be sent to every media outlet, local reporter, letter to the editor, etc. what a sham.

  2. The sadly disturbed Second Ward Councilperson was simply trying to "deliver her delusionals."

    I can only imagine N-S & colleagues have uproarious lunchtime laugh riots with Hoboken's absurd muni legal scenarios. I hope they're all trained in heimlich maneuver!

  3. In light of this most illuminating analysis of legal council, methinks that under the clarified context of matters, there is a substantive deficiency in the specification by Ms Mason of a Halloween costume evocative of a medical professional (i.e.: a nurse), immediately following the so-called "negotiations" laid bare above, which under the circumstances many might deem inapropriate by means of giving an appearance of facetiousness. If I might be allowed such liberty, I would forward that under our present understanding of the situational dynamics, a more appropos costume for Ms Mason's Halloween attire might well be the posterior portion of a donkey, the narrative thread then being the incisive suggestion that in lieu of Ms Mason being portrayed, as it were, the smooth operater, she rather be revealed as the butt of falsehoods, indeed, Ms Mason's star turn, as it actually is, the dramatic foil, the hope being that some might find such a juxtaposition to be at once illuminating, instuctive, ironic, humorous, and a cautionary tale..

  4. I'm no attorney, and I don't get paid $850/hour for anything, but my reading of the Holdco/Opco letter makes it clear that they are offering the minority the opportunity to designate an individual to join the hospital Board: "[W]e invite you four to select a member to serve on HUMC Opco's Board of Directors, just as the Mayor's Office will." This invitation reappears at the end, "We hope will accept our invitation to have a designee serve on the HUMC Opco Board."

    This is certainly not a contractual obligation, it's an "invitation," nor is it one that could be considered ongoing or permanent (which may well be the case with a Mayoral designee - i.e., it is possible, even likely, that the agreement for the sale includes a permanent seat for a designee of the current Mayor, and serving at the Mayor's pleasure).

    But if HUMC Opco goes back on this offer, regardless of their legal right to do so, they will certainly not have acted in a forthright manner. Not that I think the minority deserves forthright treatment with this backroom deal executed in the supposed name of open participation, but I would venture to say that going back on such a clear offer would likely be unwise the next time the hospital needs something from the Council.

    It is unclear to me that the City (i.e., the majority of Council and/or the Mayor) can prevent Holdco/Opco from making such an offer - presumably there are Board seats to fill and unless the agreement with the City makes specific plans for all the seats, then it is simply a business decision on Holdco/Opco's part to make this offer, and not necessarily an unwise one, if that is what they felt was needed to close the deal.

    Once the minority designee serves his or her term, a decision will be made by the Board to renew that person's membership, or not. There is no way this letter makes it an obligation to continue to offer these four Council members ongoing control over a Board position.

    Outside of the Board position, this letter is essentially touchy-feely and not a whit more. You don't need to earn $850/hour to see that, and I think it's more than clear that Not-Stempler would agree with that if nothing else I have written.

  5. Mason should have been wearing only one piece of medical attire - a straight jacket! We need to go after the council of NO for the extra two million they cost us. The hospital employees have the makings of a class-action suit for the psychological torture they were put through for her political gain.

  6. The correlation is to "bi-partisanship". Which is why this "offer" of a board seat is non-sensical. Democrats and Republicans have different ways of seeing the world. Agree with one or the other, they are nevertheless opposed viewpoints. Thus, bi-partisanship makes sense in creating a deliberative body.

    It remains unclear what the minority stands for apart from obstruction. They do not offer a different philosophy or any consistent viewpoint other than to impede the mayor, even when that means impeding progress, jeopardizing 1000s of jobs, and the city's financial health.

    I therefore see no conceivable way that this offer can be fulfilled. It's unhealthy for this city. Nothing constructive is coming from this unit. They are hardly the voice of fiscal responsibility having just pissed away $4.5million in a snit.

    I sincerely HOPE the city is not seriously considering allowing this board appointment to go through. This is the very definition of negotiating with terrorists.

  7. Interesting, HD. I'll run that by Not-Stempler.

    If I had to take a crack at it, I'd say their 'invitation' is meaningless because there is no such entity as the "Council Minority". These 4 members might as well have called themselves The Temptations or Gladys Mason & The Pips.

    What you've really got here was an extra-legal 'negotiation' between 4 officials doing horse-trading with HoldCo- we vote 'yes' if you give us a board seat. A board seat comes with fiduciary control over the hospital- over their budget and over hiring. Therefore this 'negotiation' was in fact, a polite extortion.

    Yes, extortion. 4 city officials with no right to represent the City in any negotiation with the hospital weaseling onto the board under the guise of their authority to do so, with a 'Yes' vote hanging in the balance. Was HoldCo in any position to say "No" in this 'negotiation'?

    Not if they wanted their votes. And because the board position comes with control over $ and jobs, I'd say what Mason & Co. did is a serious ethical violation, at a minimum.

    As Not-Stempler wrote, the wording of the letter very carefully framed the 'offer' as unenforceable and non-binding.

    Now, does HoldCo have the authority to invite individuals to join their board? Maybe. Or maybe it requires approval of their board members. I'd say it doesn't matter in this case because of the context- under what circumstances the 'offer' was given. Entirely inappropriate, with a business deal at stake, and the negotiators misrepresenting their authority to the Buyer.

    Those are my 2 cents,but I'll see what Not-Stempler has to say.

    If it's any consolation, HD I don't make $850/htr either.

  8. Psssst... Oracle, you never fail to crack me up!

  9. No consolation GA, but thanks for trying. Sob.

  10. I was looking at the h411 spin and there seems to be a new letter out there...

  11. Hi Taith, saw it.

    A correction of terminology used in the first letter and a reconfirmation of a non-offer... the closing hasn't happened yet, after all.

    I've more to say on that post but I'll wait.


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