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SUPPLEMENTAL INFORMATION PURSUANT TO RULE 3(A) OF THE RULES OF THE COURT OF CHANCERY

The information contained herein is for the use by the Court for statistical and administrative purposes only. Nothing stated herein shall be deemed an admission by or binding upon any party.

1. Caption of Case: Samuel D. Mackert, III, John W. Hocker, IV, Dave Naar, Gregory W. Lynch, Jr., Matthew Lee Wilson, Trevor Christian White, Franklin Samuel Johnson, Todd A. Fritchman, William L. Mears and Diane E. Jones v. The Town of Dewey Beach Town Council, Mayor Dale Cooke, Commissioner Diane Hanson, Commissioner Courtney Reardon, Commissioner Michael Dunmyer, Commissioner Gary Persinger, Town Manager Marc Appelbaum, and Town Solicitor Frederick Townsend 2. Date Filed: July 13, 2017 3. Name and address of counsel for plaintiff(s): Richard H. Cross, Jr. (No. 3576) Cross & Simon, LLC, 1105 North Market Street, Suite 901, Wilmington, DE 19801, (302) 777-4200 4. Short statement and nature of claim asserted: Injunctive Relief and FOIA violations all stemming to the Dewey Beach Town Manager. 5. Substantive field of law involved (check one): Administrative Law Commercial Law Constitutional Law Corporation Law/

Labor Law Real Property 348 Deed Restriction Zoning

Trusts, Wills and Estates Consent Trust Petitions Partition ______ Rapid Arbitration (Rules 96, 97) X Other (FOIA & Injunction)

Trade Secrets/Trade Mark/ or other Intellectual Property 6. Related cases, including any Register of Wills matters (this requires copies of all documents in this matter to be filed with the Register of Wills): No. 7. Basis of court's jurisdiction (including the citation of any statute(s) conferring jurisdiction): 29 Del. C. § 10005(a), 10 Del. C. § 341 8. If the complaint seeks preliminary equitable relief, state the specific preliminary relief sought. TRO re: Counts VII, VIII 9. If the complaint seeks a TRO, summary proceedings, a Preliminary Injunction, or Expedited Proceedings, check here X . (If #9 is checked, a Motion to Expedite must accompany the transaction.) 10. If the complaint is one that in the opinion of counsel should not be assigned to a Master in the first instance, check here and attach a statement of good cause. /s/ Richard H. Cross, Jr. (No. 3576) Signature of Attorney of Record & Bar ID

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IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE SAMUEL D. MACKERT, III, JOHN W. ) HOCKER, IV, DAVE NAAR, GREGORY ) W. LYNCH, JR., MATTHEW LEE ) WILSON, TREVOR CHRISTIAN WHITE, ) FRANKLIN SAMUEL JOHNSON, ) TODD A. FRITCHMAN, WILLIAM L. ) MEARS AND DIANE JONES, ) ) Plaintiffs, ) v. ) C.A. No. ) THE TOWN OF DEWEY BEACH TOWN ) COUNCIL, MAYOR DALE COOKE, ) COMMISSIONER DIANE HANSON, ) COMMISSIONER COURTNEY ) REARDON, COMMISSIONER MICHAEL ) DUNMYER, COMMISSIONER GARY ) PERSINGER, TOWN MANAGER ) MARC APPELBAUM, and TOWN ) SOLICITOR FREDERICK TOWNSEND, ) )

Defendants. )

VERIFIED COMPLAINT COMES NOW, Samuel D. Mackert, III, John W. Hocker, IV, Dave Naar,

Gregory W. Lynch, Jr., Matthew Lee Wilson, Trevor Christian White, Franklin

Samuel Johnson, Todd A. Fritchman, William L. Mears and Diane Jones

(collectively the “Plaintiffs”)1 with their complaint seeking (1) to void action by

the Town of Dewey Beach Town Council that violates Delaware’s Freedom of 1 Due to time constraints, Latoya Weatherly, Jason Lovins, and Cliff Dempsey were unable to execute a verification and were not included as Plaintiffs. It is anticipated they will seek to join once we are able to obtain their verifications.

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Information Act, 29 Del. C. § 10001, et seq. (“FOIA”), (2) for an injunction to stop

interference by the town manager with the operations of the Dewey Beach Police

Department, Dewey Beach Building Inspector, Dewey Beach Patrol and Alderman

Court, (3) for an injunction to compel the Town Solicitor to recuse himself in this

matter and (4) for a writ of mandamus that the Town Council follow the Town

Charter in providing a substitute town manager until the multiple claims against

the town manager are resolved. In support thereof, Plaintiffs assert as follows:

1. This case relates to and, in part, stems from complaints raised with the

Town of Dewey Beach by the Plaintiffs2 and (and five others who are former

employees, town residents, an individual doing business with the town manager

and a former mayor of the town).

2. The Plaintiffs, many of whom are career employees with the town,

asserted claims of racial discrimination, sexual discrimination, hostile work

environment, improper interference with the police department, improper

interference with building inspector, improper interference with the beach patrol

and improper interference with the Alderman Court. The claims are against the

town manager, Marc Appelbaum. Copies of the complaints filed with the town are

attached as Exhibits A and B.

2 And anticipated Plaintiffs (see footnote 1).

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3. Subsequently, five more people came forward and filed an affidavit or

statements corroborating many of the claims and raising new ones. Copies of the

complaints by the five additional people are attached as Exhibits C, D, E, F and G.

4. Relevant from the complaints to the relief sought here are the

following factual allegations concerning interference with Law Enforcement:

a. Mr. Appelbaum goes around the chain of command at the police

department which causes interference with operations and discipline.

Exhibit A at ¶ 21.

b. Mr. Appelbaum attempts to pressure officers and police staff to give

him police reports. Exhibit A at ¶ 22, Exhibit B at p. 2.

c. Mr. Appelbaum interferes with police procedures even though he has

no training or education to qualify him to do that. Exhibit A at ¶ 23.

d. Mr. Appelbaum attempts to interfere with the independence of police

officers to direct them to take or not take actions against selective

individuals and businesses. Exhibit A at ¶ 24-26.


following concerning interference with Dewey Beach Patrol:

a. Mr. Appelbaum will often overturn decisions by the Captain of the

Dewey Beach Patrol concerning staffing even though Mr. Appelbaum

has no relevant training. Exhibit A at ¶ 28.

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b. For Memorial Day 2017, the busiest day of the year for the beach

patrol, Mr. Appelbaum directed that the number of lifeguards on the

beach be reduced from 31 to 8 over the objection of the Captain of the

beach patrol. Exhibit A at ¶ 29.

c. Mr. Appelbaum regularly interferes with the chain of command within

the Dewey Beach Patrol. Exhibit A at ¶ 30-31.

d. Mr. Appelbaum prohibits the Captain from attending town meetings

and from speaking publicly. Exhibit A at ¶ 32.

e. Mr. Appelbaum violates HIPAA by reviewing drug screening tests of

members of the beach patrol. Exhibit A at ¶ 33.


following concerning interference with the Building Inspector:

a. Mr. Appelbaum has no relevant education or training concerning

building codes but nevertheless interferes and directs the building

inspector on how to handle applications. In addition he will advise

residents that they don’t need a permit (when they do) or obstruct

residents and businesses from obtaining needed permits without any

valid justification. Exhibit A at ¶ 34-36.

b. Mr. Appelbaum diverts money earmarked for the building inspector to

other purposes. Exhibit A at ¶ 37.

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following concerning interference with the Alderman Court:

a. Mr. Appelbaum inserted language in the Alderman Court Clerk’s

employment letter giving him the right to terminate her “at will” even

though the town charter only allows her to be removed for “just

cause.” Exhibit B at p. 1.

b. Mr. Appelbaum has insisted that the court clerk report to him and to

perform any services Mr. Appelbaum demands, in violation of the

town charter requiring the court staff to be independent from the other

government operations. Exhibit B at pp. 1-2.

c. Mr. Appelbaum interferes with the clerk’s employment by refusing to

provide an employment manual and then making various verbal

claims on what she is allowed or not allowed to do. Exhibit B at p. 2.

8. After the complaints against Mr. Appelbaum began to mount,

members of the town council met privately and repeatedly with Mr. Appelbaum.

9. The town solicitor has repeatedly met with and provided advice to Mr.

Appelbaum in the past. He has also provided advice and counsel to the town

council and police department. When the complaints against the town manager

were raised, the solicitor was advised that he had a conflict of interest in trying to

now provide advice concerning Mr. Appelbaum. See Exhibit H. The town

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solicitor admitted that he provided advice to Mr. Appelbaum but denies it creates

any conflict. See Exhibit I.

10. The town council and the town solicitor have now said that they have

authorized the retention of Connolly Gallagher to perform an independent

investigation of the claims. However, the terms of that engagement were never

disclosed to the public and there was never a public vote to authorize the hiring of

Connolly Gallagher.

11. In this case, it is certainly going to cost in excess of $100,000 for an

investigation by Connolly Gallagher given that Connolly Gallagher has expressed

an intention to interview all of the complaining witnesses as well as Mr.

Appelbaum and others. Connolly Gallagher has, in fact, sent notices to attempt to

schedule interviews that will be at least a day long or longer for some of the

witnesses. This use of town funds to investigate the charges against a town

manager who has approximately $40,000 left on his contract, is questionable and

certainly one that the residents, business owners and all others who provide

funding to the town should know about before it is authorized.

12. Furthermore, as Connolly Gallagher is asking that all of the

complainants sit for voluntary, lengthy interviews, the complainants should know

the scope of Connolly Gallagher’s engagement – i.e., confirming what these

transcribed statements will be used for, who will have access to them, what matters

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within their complaints are being investigated, what burden of evidence is the

investigator using when drawing conclusions, what the council intends to do with

the recommendations of the investigator, etc. At present, the complainants are left

with the impression that the secret hiring of the firm by a town council that thus far

is standing by Mr. Appelbaum may not have their best interests at heart.

13. The town council was urged to follow the Town Charter which calls

for the suspension of the town manager with pay following a preliminary

resolution based on a vote. In case of such suspension or whenever the town

manager is absent or unable to perform his management duties, an interim town

manager is called for under the Town Charter.

14. The town council have issued statements and advised the Plaintiffs

that they have inserted a contract employee, Jim Dedes, as the person they report to

during an investigation of their claims. Mr. Dedes was hired on a contract basis by

Mr. Appelbaum as an “assistant town manager” although the Town Charter and

Town Code provide for no such person. Other employees of the town continue to

report directly to Mr. Appelbaum. On information and belief, the Plaintiffs are still

subject to the management of the town manager, Mr. Dedes is just the person who

passes messages back and forth between Mr. Appelbaum and the Plaintiffs.

15. The Town Council never voted in public to create this alternative

reporting structure that is inconsistent with the Town Charter and Town Code and

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which puts the Plaintiffs under a different reporting structure than the rest of the

employees of the town. It also isn’t clear to whom residents and persons doing

business with the town should report in the event they feel they have been

victimized by Mr. Appelbaum or who otherwise feel uncomfortable doing business

with Mr. Appelbaum.

COUNT I – FOIA VIOLATION

16. Plaintiffs restate the foregoing paragraphs as if fully set forth herein.

17. The town council has hired a law firm to perform a purportedly

independent investigation but without a vote in public.

18. Pursuant to 29 Del. C. §10004, meetings are to be in public, and

where an issue is discussed in executive session, it must still be voted on in public

session. 29 Del. C. §10004(c).

19. Where the town council acts in violation of FOIA, any citizen may

challenge the validity of the action and any action in violation of FOIA is voidable

by the Chancery Court. 29 Del. C. §10005(a).

20. The Plaintiffs ask that the Court find that the town council’s failure to

vote on the retention of Connolly Gallagher in public is a violation of FOIA and to

void the engagement until the terms of the retention are made public and the

council votes in public on the retention following public comment.

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COUNT II – INJUNCTION (Police Interference)


22. As set forth above, the town manager (who is hired by and reports to

the town council) regularly interferes with the operation of the police department.

The town council has not taken any action to stop his behavior.

23. Such interference violates the Town Code, Chapter 10, §10-3.K and

Delaware law, including 11 Del. C. §8601, et. seq.

24. The Plaintiffs ask that the Court issue an injunction to stop Mr.

Appelbaum’s interference with police investigations and to stop any further

attempts to review police reports and investigations.

COUNT III – INJUNCTION (Building Inspector Interference)



the town council) regularly interferes with the operation of the building inspector.


27. Such interference violates the Town Code which repeatedly authorizes

the building inspector to enforce the applicable building codes. See e.g., Town

Code Chapter 71 at §71-8, Chapter 112 at §112-2 and Chapter 185 at §185-84.


Appelbaum’s interference with the building inspector.

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COUNT IV – INJUNCTION (Dewey Beach Patrol Interference)



the town council) regularly interferes with the operation of the Dewey Beach

Patrol. The town council has not taken any action to stop his behavior.

31. Such interference violates the Town Charter which authorizes the

creation of the beach patrol and gives them the powers and authorization of the

town police force. Town Charter at Section 19. The town code refers to the

Captain of the beach patrol as having authority over beach safety. Town Code at

Chapter 65 at §65-10.


Appelbaum’s interference with the Dewey Beach Patrol.

COUNT V – INJUNCTION (Alderman Court Interference)



the town council) regularly interferes with the operation of the Alderman Court.


35. Such interference violates the Town Charter which requires the town

to provide adequate and appropriate staff to facilitate the independent operations of

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the Alderman Court and requires that staff from the court not be shared with

conflicting town government operations. Town Charter at Section 20.15.


Appelbaum’s interference with the Alderman Court.

COUNT VI – INJUNCTION (Alderman Court Clerk)

37. Plaintiff Diane Jones restates the foregoing paragraphs as if fully set

forth herein.


the town council) had Plaintiff Diane Jones sign an employment agreement stating

that she was “at will” when the town charter requires her to be removed only for

“just cause.” The town council has not taken any action to correct this.

39. Plaintiff Diane Jones ask that the Court issue a mandatory injunction

to correct her employment agreement to reflect that she can only be removed for

just cause.

COUNT VII – FOIA VIOLATION and MANDAMUS (Replacement Town Manager)


41. The Town Council failed to have a public vote to establish the

alternative reporting structure for the Plaintiffs.

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42. The Town Charter provides a mechanism when there are issues

concerning the town manager – namely, to suspend the manager with pay and

appoint an interim town manager. All subject to a public vote.

43. Rather than follow the Town Charter, the town council voted in secret

to establish an alternative reporting structure that still places the Plaintiffs under

the ultimate supervision of the town manager against whom they have made

complaints.

44. Pursuant to 29 Del. C. §10004, meetings are to be in public, and

where an issue is discussed in executive session, it must still be voted on in public

session. 29 Del. C. §10004(c).

45. Where the town council acts in violation of FOIA, any citizen may

challenge the validity of the action and any action in violation of FOIA is voidable

by the Chancery Court. 29 Del. C. §10005(a).

46. Where a party (1) has a clear right to the performance of a

duty imposed by law; (2) the entity against which the writ is sought has arbitrarily

failed or refused to perform that duty; and (3) no other adequate remedy is

available to the party, a writ of mandamus is appropriate.

47. The Plaintiffs ask that the Court: 1) find that the town council’s failure

to vote on the suspension of the town manager and secret vote to create a new

reporting structure violated FOIA; 2) void the new structure created by the town

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council; and, 3) order the council to suspend the town manager with pay pending

resolution of the claims against him.

COUNT VIII – MANDATORY INJUNCTION (Town Solicitor Recusal)


49. The town solicitor has represented the town manager for years. The

manager has often contacted the solicitor directly for advice in carrying out his

actions and in performing his duties.

50. When the solicitor became involved in advising the town council on

how to handle issues concerning the town manager, the town solicitor was advised

that he should recuse himself. He has refused. He presumably has continued to

advise the town council and allowed them to vote in secret concerning the handling

of the claims against him, in violation of FOIA.

51. The town solicitor’s continued representation appear to conflict with

both the rules of professional conduct and the Town Code, Chapter 10 at §10-3,

which requires the town solicitor to recuse himself where he has an interest that

may impair his independent judgment. In this case, he has regularly worked with

and apparently continues to work with the town manager and yet claims to provide

independent legal advice to the town council on how to handle claims against that

same town manager.

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52. Plaintiffs seek an order from the Court enjoining the town solicitor,

and his law firm, from representing or providing advice to the town council and/or

the town manager on the grounds that the town solicitor and his firm have a

conflict of interest that requires their recusal in this matter.

WHEREFORE, Plaintiffs ask that the Court:

A. Find that the town council’s failure to vote on the retention of Connolly

Gallagher in public is a violation of FOIA and void the engagement until

the terms of the retention are made public and the council votes in public

on the retention following public comment;

B. Issue an injunction to stop Mr. Appelbaum’s interference with police

investigations and to stop any further attempts to review police reports

and investigations;

C. Issue an injunction to stop Mr. Appelbaum’s interference with the

building inspector;

D. Issue an injunction to stop Mr. Appelbaum’s interference with the Dewey

Beach Patrol;

E. Issue an injunction to stop Mr. Appelbaum’s interference with the

Alderman Court;

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F. Issue a mandatory injunction to correct Plaintiff Diane Jones’

employment agreement to reflect that she can only be removed for just

cause, in compliance with the town charter;

G. Find that the town council violated FOIA in establishing an alternate

reporting structure and issue a writ of mandamus that the town council

must suspend the town manager with pay and must appoint an interim

town manager pending resolution of the claims against the town

manager;

H. Issue a mandatory injunction that requires the town solicitor and his law

firm to recuse themselves from providing advice in this matter;

I. Award Plaintiffs their costs and fees, including reasonable attorney fees;

J. Award such other relief as the Court deems just and equitable.

Dated: July 13, 2017 CROSS & SIMON, LLC Wilmington, Delaware /s/ Richard H. Cross, Jr. Richard H. Cross, Jr. (No. 3576) 1105 North Market Street, Suite 901 P.O. Box 1380 Wilmington, Delaware 19899-1380 (302) 777-4200 (302) 777-4224 Facsimile [email protected] Attorney for Plaintiffs


Defendants. )

MOTION FOR EXPEDITED PROCEEDINGS

COMES NOW, Plaintiffs, by and through their attorney, and moves this

Court for the scheduling of expedited proceedings (the “Motion”). In support of

the Motion, Plaintiffs states as follows:

1. Plaintiffs filed a Verified Complaint (the “Complaint”) seeking,

among other things, injunctive relief to suspend town manager Marc Appelbaum

while an investigation is performed and to recuse the town solicitor from advising

the town council in this matter.

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2. Defendants are the town council, town manager and town solicitor for

Dewey Beach.

3. The allegations in this matter all stem from complaints against the

town manager by 18 people, including the Plaintiffs. The complaints to the town

range from sexual harassment, racial discrimination, hostile work environment,

improper interference by the town manager with operations, failure of the town

council to suspend the town manager and failure of the town solicitor to recuse

himself in this matter. The last two claims are the basis to ask for expedited

consideration.

4. The Verified Complaint and Motion for Temporary Restraining Order

to be filed request injunctive relief to order the town to suspend the town manager

with pay while the complaints against him are investigated and to order the town

solicitor to recuse himself from this matter since he has represented, at times, the

Plaintiffs, the town council Defendants and the town manager Defendant

(essentially all of the parties on both sides of the dispute). Without expedited

relief, Plaintiffs continue to be harmed by the town manager being in a position of

authority over them and a town solicitor who has a clear conflict under the ethical

rules and under the town’s charter continuing to provide advice to the town council

on how to handle the town manager complaints.

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5. Under the town charter, there is a mechanism when there are issues

concerning the town manager – namely, to suspend the manager with pay and

appoint an interim town manager. All subject to a public vote.

6. The Town Charter specifically discusses that the town council can

conduct a public meeting and can suspend the town manager with pay while

determining whether to remove him. The charter’s procedure comports with the

EEOC Guidelines that state that “an employer must take all reasonable steps to

prevent harassment from occurring in the employment setting.” Conley v. State,

2011 WL 113201, at *5 (Del. Super. 2011)

7. Rather than follow the Town Charter, the town council voted in secret

(in violation of FOIA – which is another part of the verified complaint) to establish

an alternative reporting structure that still places the Plaintiffs under the ultimate

supervision of the town manager against whom they have made complaints.

8. The town council Defendants recognize the serious nature and

probable cause established by the 18 complaints – indeed, in a claim seeking to

terminate the contract of the Town Manager (which is believed to have

approximately $40,000 on it), the town council voted in secret to hire a law firm

and pay hundreds of thousands of dollars to conduct an investigation. Yet, they

allow the person to remain in authority over the Plaintiffs. The Plaintiffs (and the

other employees in the town hall, together with those doing business with the

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town) continue to face harassment, discrimination and a hostile environment if the

town manager is not suspended with pay. Meanwhile, the town manager faces no

harm if suspended with pay. Conley v. State, 2011 WL 113201, at *4 (Del. Super.

2011) (“It is well-settled that suspending an employee with full pay and benefits

pending an investigation into alleged misconduct is not an actionable adverse

employment action.”)

9. With respect to the town solicitor, he regularly provides advice to the

town manager, the town council and the police department. He now continues to

provide advice to the town council with respect to a dispute that involves the police

department and others and the town manager. There is a hopeless conflict of

interest under both the rules of professional conduct and the town charter.

Although it was raised with the town solicitor, he denies there is any conflict in

having represented all of the parties. The town certainly has the ability to hire

another attorney given the conflict and the town’s charter calls for an interim town

solicitor if such scenarios.

10. The Court of Chancery Rules grant this Court broad power to order

expedited proceedings.

11. “[T]he standard for obtaining expedited proceedings is low-requiring

only that plaintiffs demonstrate a colorable claim.” In re 3Com Shareholders

Litig., 2009 WL 5173804, at *2 (Del. Ch. 2009). Accordingly, the Court limits its

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inquiry into whether the plaintiff “has articulated a sufficiently colorable claim and

shown a sufficient possibility of a threatened irreparable injury. . . .” Giammargo v.

Snapple Beverage Corp., 1994 WL 672698, *2 (Del. Ch. 1994) Id. The Court

does not judge the merits or even the legal sufficiency of the complaint. Id. at *3.

12. Plaintiffs have stated more than ample grounds for expedition. First,

Plaintiffs have pleaded a colorable claim sufficient to support the grant of

expedited treatment. In addition, Plaintiffs’ Complaint more than sufficiently

demonstrates the possibility of irreparable harm that will befall Plaintiffs if no

relief is granted.

CONCLUSION

For all of the foregoing reasons, Plaintiffs respectfully request that the Court

enter an order substantially in the form attached hereto expediting proceedings and

setting a hearing on Plaintiffs’ motion for temporary restraining order as soon as

possible.



Defendants. )

[PROPOSED] ORDER

Upon consideration of Plaintiffs' Motion for Expedited Proceedings, the

Motion is hereby GRANTED.

Dated: Vice Chancellor


Defendants. )

MOTION FOR TEMPORARY RESTRAINING ORDER

COMES NOW, Plaintiffs, by and through the undersigned attorneys, and

moves this Court for the entry of a temporary restraining order against the

Defendants (the “Motion”). For the reasons set forth in the Brief to be filed,

Plaintiffs request a TRO on counts VII and VIII of the Complaint.

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Defendants. )

[PROPOSED] ORDER

Upon consideration of Plaintiffs' Motion for Temporary Restraining Order

and the Brief in Support of the Motion, the Motion is hereby GRANTED.

Dated: Vice Chancellor

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