The Courier

Thursday, January 17, 2008
Long time equal rights advocate cites M'town for potential First Amendment violation


Despite 17 years of perfect attendance on the Middletown Human Rights Commission [HRC], Dr. Carolyn Schwebel said the committee ended her tenure on the voluntary board because she filed a judicial complaint against the township.

Schwebel, of Leonardo, said she suspected the Township Committee of retaliation after failing to gain reappointment to the HRC.

The Middletown woman said her advocacy of equal rights may have caused the committee to deny her appointment to another three-year term.

During the Jan. 6 reorganization session, committee members cited Schwebel's involvement in litigation against the township as the reason she was not reappointed.

"The committee felt it best not to reappoint [Schwebel] until the legal matter was settled. [Committee members] foresaw a bit of a conflict if [Schwebel] sat on the [HRC] while in litigation," Mayor Gerard Scharfenberger said.

Schwebel, who uses a wheelchair, is considering legal action to redress a potential violation of her First Amendment rights. The First Amendment protects citizens from retaliation in response to legal action.

The Leonardo resident said she was entitled to impartial consideration for the open position, despite her role in past litigation.

"The township felt my removal would reduce the chances of the HRC becoming too vocal," she said. According to Schwebel, her dismissal was a possible act of retribution for her attempts to enforce federal disability statutes through litigation.

Schwebel, the HRC chairperson since 2005, was the only commission member whose tenure the committee allowed to expire. The governing body appointed no replacement, leaving the committee shorthanded. "The HRC now only has seven members, and it's supposed to be an 11-member body," she said. "We needed a simple majority [five of the eight members] to conduct official meetings, and still four meetings were cancelled [in 2007]." The absence of Schwebel created a fourth vacancy on the HRC.

Difference of opinion

Township Attorney Bernard Reilly said the legal situation was in the process of being settled. "[The litigation involving Schwebel] was resolved to a certain extent, but steps are still being implemented to bring resolution to the ongoing case."

"The litigation has been settled since Aug. 1, 2007," Schwebel contended.

Township officials and Schwebel disagreed on the status of a 2004 complaint. Based on the Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973, the action sought to bring the township into compliance with federal disability standards.

"Since 1990, I've attempted to get the township to meet ADA requirements," she said. "There isn't an authority that enforces ADA code. It's a federal law, and the only way to enforce compliance is to file a lawsuit."

After three years of arbitration, Middletown agreed to an ADA consent order on Aug. 1, 2007. Issued by U.S. District court judge John J. Hughs, the settlement mandated the township undertake certain measures to remedy issues raised by the complaint.

The settlement imposed numerous measures on the township, according to the consent order signed by Hughs. The measures of the settlement included the appointment of an ADA compliance officer, the inclusion of settlement terms on the township's Web site and the development of an ADA transition plan to address the accessibility issues of disabled residents.

As a result of the consent order, the township is required to submit progress reports to the plaintiff's counsel every 60 days regarding the status of their compliance. Each deadline missed by the township could merit a $10,000 fine. Middletown was also held responsible for $45,000 in legal fees accrued by the plaintiffs.

Schwebel insisted the 2007 settlement represented the conclusion of the 2004 complaint, despite the assertion of township officials to the contrary.

Neither Scharfenberger nor Reilly responded to requests for comment before press time.

Sphere of influence

Established in 1968 as a state mandated advisory board, the HRC is "cloaked with whatever powers the mayor and Township Committee grant to it," according to the guidelines provided by Schwebel. The role of the committee potentially subjects the HRC to the expansive discretion of the current committee, regarding expectations and duties, the guidelines said.

The guidelines state the mayor and committee's "clear and explicit establishment of these powers should be communicated to each department head."

Schwebel accused township officials of disparaging the HRC's role in Middletown policy-making. "The [HRC] is supposed to have a significant amount of input regarding the placement of new housing, the development of new regulations and rules and the general decisions of local government," said Schwebel, referring to the guidelines.

The commission was too ambitious, Schwebel said, claiming her efforts to gain input from the Township Committee were repeatedly ignored.

A former school psychologist in Middletown, Schwebel accused the committee of discouraging repeated efforts to foster cooperation with the educational system. "I was told not to work with school officials," she said.

During her tenure as HRC chairperson, the Leonardo woman continually asked for diverse committee appointments. "By taking me off the commission, the township has deprived the HRC of a large part of its diversity," Schwebel said.

"I've asked for the appointment of an African American and Muslim so the HRC would be more representative of Middletown's diversity. [The committee] has instead sent [the HRC] five WASPy females in a row; excuse me, Caucasian females," she said.

The comment generated a low rumbling of disapproval throughout the crowded courthouse. The audible reaction of offended spectators muffled much of Schwebel's ensuing speech, including her correction.

Committee reaction

Committeeman Patrick Short moved for the committee to reappoint Schwebel. "Since there are now only seven members on an 11-member commission, there is certainly room for [Schwebel]," he said.

Committeeman Sean Byrnes seconded Short, but tabled the motion for private discussion. Byrnes said certain legal aspects of the situation may need to be addressed before Schwebel could reassume the position. "There very well may be some conflict or impediment that makes it difficult to appoint Mrs. Schwebel while whatever settlement that's pending is finalized or implemented," Byrnes said.

Reilly concurred with Byrnes, saying he would provide committee members with adequate background information regarding the potential conflicts in reappointing Schwebel.

"Mrs. Schwebel's situation is a perfect example of the problems inherent in excluding committee members from open discussion," Short said after the meeting. "[The committee] would've had a better understanding of why [Schwebel] was not reselected if other [committee members] were given the chance to review a finalized list of appointments."

Short said he was excluded from the decision making process entirely. The committeeman was apparently told that a draft slate of open positions would be provided and examined during an open discussion regarding appointments. According to Short, Deputy Mayor Pamela Brightbill apparently gave him a list of final appointments after letters of notification had been mailed to appointees.

Brightbill did not respond to requests for comment before press time.

The township is expected to hire a firm responsible to formulate an ADA transition plan by Feb. 1. The transition plan should be fully implemented by August 1, according to the settlement.

A link on Middletown's Web site, titled "ADA Compliance", directs visitors to the contact information of ADA Compliance Officer Cindy Veneziano, also the township's Equal Employment Officer (EEO) since 2005. Appointed after the federal ruling, Veneziano is responsible for both positions. The settlement, however, was unavailable for viewing on the Web site as of Jan. 15. The transition plan has yet to be developed, and will become responsibility of the firm selected by the committee. Veneziano failed to return requests for comment by press time.