Judge to decide whether Fraser tribunal will occur

By: Nick Mordowanec | Fraser - Clinton Township Chronicle | Published September 13, 2017

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FRASER — Macomb County Circuit Court Judge Richard Caretti said Sept. 13 that he will decide within a 24-hour period as to whether a special Sept. 18 tribunal hearing will still take place in regard to sexual harassment allegations against Fraser Mayor Joe Nichols and Fraser Councilman Matt Hemelberg.

Nichols and Hemelberg — both of whom were present in court — are represented by attorneys Angela Mannarino and Don Gasiorek, of Farmington Hills-based Gasiorek, Morgan, Greco, McCauley & Kotzian, P.C. Robert Huth, of Clinton Township-based law firm Kirk, Huth, Lange & Badalamenti PLC, is overseeing the tribunal process on behalf of the city.

Mannarino publicly defended Nichols and Hemelberg in circuit court, arguing that a report submitted by independent investigator Thomas Fleury doesn’t substantiate the accusations made against her clients. She said that Huth is pointing to “broad authority” in relation to Fraser City Council members.

She also argued that the procedure of the tribunal is unknown, saying that she and her clients are “going in blind.”

Huth said his role compares to that of a “mini Ken Starr,” calling seven different witnesses to appear publicly at the hearing at Fraser City Hall. The witnesses include City Manager Wayne O’Neal, former Fraser Finance Director Mary Jaganjac and five other women mentioned in Fleury’s 16-page report — which became public July 13.

He said the city attorney is a good candidate to preside over the objection process, which is allowable during the cross-examination of the witnesses.

“We all know if we step out of bounds there will be a record made,” Huth said.

Mannarino said the current council’s preconceived notions minimize the credibility of a fair hearing. She referred to statements made by council members during public meetings and in conversations with the press, including Councilwoman Patrice Schornak’s July 13 statement, “I don’t have faith the governor would do what needs to be done.”

When Caretti asked if the council has already prejudged the matter, Mannarino responded by claiming three members — Schornak, Michael Lesich and Kathy Blanke — have already made up their minds. She alluded to Councilman Mike Carnagie’s vote possibly being up for grabs due to his not being one-sided publicly or with the press, though he voted to approve the tribunal process in the first place.

When Mannarino said, “There’s nothing that even gets close to misconduct in office,” Caretti retorted by saying the report included mentions of touching, kissing and shoulder massages. Mannarino argued that such actions are not proper grounds for misconduct and removal from elected office.

Huth offered the court a “G-rated” description of what was described in Fleury’s report, mentioning comments allegedly made by Nichols and Hemelberg.

He added that Fleury, who was hired by O’Neal to conduct the investigation and issue his findings, has 20-plus years of labor law experience.

After the proceeding, Mannarino said her team remains hopeful that their clients will be exonerated. She claimed that Huth said things in court that were not previously mentioned.

“A lot of the stuff that Mr. Huth said on the record about the procedure, it’s the first time we’ve ever heard any of it,” she said afterwards.

She repeated what she said during the hearing, that the current council already has its collective mind made up.

“There’s at least three (council members) who have gone to the media and said how they’re going to vote, and the fourth one from what I’ve gathered has made the same comments, just not to (the media),” she said. “I just think knowing that there’s four votes against them and they need four votes to remove them … there’s not really much that we can say or do that’s going to help them at the hearing, unfortunately.”

Huth said that while the Fraser city charter doesn’t speak directly about sexual harassment, it does mention a hostile work environment — such as making “graphically sexual” comments — as being a violation of Michigan statutes and being a type of misconduct that is grounds for removal from office.

“It sounds like Judge Caretti is willing to follow the Michigan Constitution, a law that permits this type of hearing,” Huth said afterwards. “I believe he’s going to be satisfied that the process is fair, and that this smokescreen raised by these council members to cover up poor behavior is not going to be successful.”

He maintained that the witness list was already known due to Fleury’s report.

“There’s no surprises here,” he said. “Everyone knows who was harassed and who was intimidated, and those are the witnesses being called.”

If the tribunal takes place, the council can cross-examine witnesses. Huth said he hopes the women will not be treated unfairly for coming forward with the accusations, and he added that it’s council’s discretion to make a decision that evening in regard to removing Nichols and Hemelberg.

The defense team can also call witnesses and cross-examine them.

A short verbal exchange took place outside the courtroom between Huth and Hemelberg.

Huth told media members that “(Nichols and Hemelberg) had an opportunity to meet with Mr. Fleury, and they chose not to meet with him. They had their chance to tell their story and they were afraid to tell their side of the story.”

Hemelberg stood by and said, “You’re crazy.”

Huth told Hemelberg, “You’re not going to intimidate me.”

Hemelberg responded, “You’re so far from fair.”

Huth told him the truth is going to come out.

“He can talk to 24-year-old clerks and push them around,” Huth said after Hemelberg walked away. “He’s not going to get his way Monday.”

Look for updates to the story as Caretti issues his legal opinion on the matter.