Appeal of Scheeler v. Galloway - Libertarian Partyogtf.lpcnj.org/2015/2015054Q6/ScheelerGalloway.pdf · New Jersey is an Equal Opportunity Employer • Printed on Recycled paper and

PashmanStein

March 10, 2016

UPS OVERNIGHT DELIVERY Joseph H. Orlando, Clerk Superior Court of New Jersey Appellate Division 25 Market Street Trenton, New Jersey 08625

Re: Scheeler v. Galloway Twp. GRC Complaint No. 2015-1 and 2015-22 Our File No. 9871-007

Dear Mr. Orlando:

Enclosed for filing are an original and five copies of the following documents in the above-referenced matter:

1. Notice of Appeal 2. Civil Case Information Statement

Kindly charge our Collateral Account #141905 with any fees related to this filing. Please return a "filed" copy of each document to us in the enclosed self-addressed stamped envelope.

Very truly yours,

CJ Gri in

CJG/jj Enclosures

cc: Michael J. Fitzgerald, Esq. (via overnight mail) Debra Allen, Deputy Attorney General (via overnight mail)

Pashman Stein, PC Court Plaza South 21 Main Street, Suite 200 Hackensack, NJ 07601 Phone: 201.488.8200 Fax: 201.488.5556 www.pashmanstein.com

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New Jersey Judiciary IA 1 : Superior Court - Appellate Division 41.

t, 4, • NOTICE OF APPEAL co .

Type or clearly print all information. Attach additional sheets if necessary. ATTORNEY! LAW FIRM / PRO SE LITIGANT TITLE IN FULL (AS CAPTIONED BELOW): Harry B. Scheeler, Jr., Complainant

V.

Galloway Township (Atlantic), Custodian of Record EMAIL ADDRESS

NAME CJ Griffin, Esq. / Pashman Stein, P.C. STREET ADDRESS 21 Main Street, Suite 200 CITY Hackensack

STATE NJ

ZIP 07601

PHONE NUMBER 201-488-8200

[email protected] ON APPEAL FROM

TRIAL COURT JUDGE TRIAL COURT OR STATE AGENCY

Government Records Council

TRIAL COURT OR AGENCY NUMBER

GRC 2015-1 & 2015-22

Notice is hereby given that Complainant Harry Scheeler appeals to the Appellate

Division from a • Judgment or 0 Order entered on in the • Civil

• Criminal or D Family Part of the Superior Court or from a 11 State Agency decision entered on

1/29/16 and 10/27/15 .

If not appealing the entire judgment, order or agency decision, specify what parts or paragraphs are

being appealed.

Have all issues, as to all parties in this action, before the trial court or agency been disposed of? (In

consolidated actions, all issues as to all parties in all actions must have been disposed of.) II Ye5 0 No

If not, has the order been properly certified as final pursuant to R. 4:42-2? • Yes D No

For criminal, quasi-criminal and juvenile actions only:

Give a concise statement of the offense and the judgment including date entered and any sentence

or disposition imposed:

This appeal is from a • conviction 0 post judgment motion • post-conviction relief.

If post-conviction relief, is it the D 1st 0 2nd 0 other specify

Is defendant incarcerated? 0 Yes CI No

Was bail granted or the sentence or disposition stayed? • Yes • No

If in custody, name the place of confinement:

Defendant was represented below by:

0 Public Defender D self 0 private counsel specify

ROY Ned effective 910112500

Page 1 of

Notice of appeal and attached case information statement have been served where applicable on the

following: Name Date of Service

Trial Court Judge Trial Court Division Manager Tax Court Administrator State Agency Attorney General or Attorney for other

Governmental body pursuant to R. 2:5-1(a), (e) or (h)

Other parties in this action:

Name and Designation Galloway Twp.

Government Records Council

Government Records Council 3/11/16

John J. Hoffman, Acting Attorney General 3/11/16

Date of Service 3/11/16

3/11/16

Attorney Name, Address and Telephone No. Michael J. Fitzgerald, Esq./ Fitzgerald, McGroaty & Malinsky Lindwood, NJ 08221 (609)-927-0015

Debra Allen, DAG do John J. Hoffman, Acting Attorney General, 25 Market Street, PO Box 112, Trenton, NJ

Attached transcript request form has been served where applicable on the following:

Trial Court Transcript Office

Court Reporter (if applicable)

Supervisor of Court Reporters Clerk of the Tax Court State Agency NONE

Name Date of Service

Amount of Deposit

Exempt from submitting the transcript request form due to the following:

M No verbatim record.

❑ Transcript in possession of attorney or pro se litigant (four copies of the transcript must be submitted along with an electronic copy). List the date(s) of the trial or hearing:

0 Motion for abbreviation of transcript filed with the court or agency below. Attach copy.

❑ Motion for free transcript filed with the court below. Attach copy.

I certify that the foregoing statements are true to the best of my knowledge, information and belief.

I also certify that, unless exempt, the filing fee required by N.J.S.A. 22A:2 has been paid.

3-1 0 " . 10 DATE SIGNATgRE OF ATTORNEY OR PRO SE LITIGANT

Page 2 of 2

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coo 47 Superior Court - Appellate Division 0' CIVIL CASE INFORMATION STATEMENT

Please type or c'early print all information.

TITLE IN FULL

Harry B. Scheeler, Jr., Complainant v. Galloway Township (Atlantic), Custodian of Record

TRIAL COURT OR AGENCY DOCKET NUMBER

Government Records Council Complaint No. 2015-1 and 2015-22 (consolidated below)

• Attach additional sheets as necessary for any information below.

APPELLANTS ATTORNEY EMA: L ADDRESS: [email protected]

MI PLAINTIFF 0 DEFENDANT 0 OTHER (SPECIFY)

NAME

CJ Griffin, Esq. / Pashman Stein, P.C. CLIENT

Harry B. Scheeler, Jr. / Complainant

STREET ADDRESS

21 Main Street, Suite 200 CITY

Hackensack STATE

NJ ZIP

07601 TELEPHONE NUMBER

201-488-8200

RESPONDENTS ATTORNEY* EMAIL ADDRESS: [email protected] NAME

Michael J. Fitzgerald, Esq./ Fitzgerald, McGroaty & Malinsky CLIENT

Galloway Township / Custodial Agency STREET ADDRESS

747 Shore Road CITY

Lindwood STATE

NJ ZIP

08221 TELEPHONE NUMBER

609-927-0015

Indicate which parties, if any, did not participate below or were no longer parties to the action at the time of entry of the judgment or decision being appealed,

GIVE DATE AND SUMMARY OF JUDGMENT, ORDER, OR DECISION BEING APPEALED AND ATTACH A COPY:

Plaintiff appeals the January 29, 2016 Final Order and October 27, 2015 Order of the Government Records Council ("GRC") for GRC Complaint No. 2015-1 and 2015-22, which the GRC consolidated below.

Are there any claims against any party below, either in this or a consolidated action, which have not been disposed 0 YES — NO of, including counterclaims, cross-claims, third-party claims and applications for counsel fees?

If so, has the order been properly certified as final pursuant to E. 4:42-2? (If not, leave to appeal must be sought. R. 2:2-4,2:5-6) 0 YES • NO

(If the order has been certified, attach, together with a copy of the order, a copy of the complaint or any other relevant pleadings and a brief explanation as to why the order qualified for certification pursuant to R. 4:42-2.)

Were any claims dismissed without prejudice? • YES I NO

If so, explain and indicate any agreement between the parties concerning future disposition of those claims.

Is the validity of a statute, regulation, executive order, franchise or constitutional provision of this State being questioned? • YES iii NO (3,. 2:5-1(h))

GIVE A BRIEF STATEMENT OF THE FACTS AND PROCEDURAL HISTORY:

Scheeler filed an OPRA request on 11/20/14 for a settlement agreement. Custodian denied access, claiming the agreement was not final. Scheeler filed a 2nd request for it on 12/22/14. Defendants denied the request on 12/29/14, stating it was not final. However, they ultimately released it on 1/2/15. The GRC ruled that there was no violation for failing to provide the agreement in response to the 11/20/14 request because the agreement was not "finalized" by then. However, the record shows that the township council approved the settlement on 10/28/14 and passed a resolution approving it on 11/12/14; an agreement (a "release") was signed by the plaintiff on 11/4/14, a stip. of dismissal was signed by both parties on 10/30/14 ("filed" on 12/8/14); and a check for the settlement amount was issued in early November and re-issued on 11/11/14. The GRC held that it was not final when requested because it was never "executed" by the Mayor, but the parties opted for a "release" which contains only one signature. Scheeler filed a motion for reconsideration, which the GRC denied in its 1/29/16 Final Decision.

Revised: 01103/2011, CN: 10000 (Appellate Civil CIS) page 1 of 2

TO THE EXTENT POSSIBLE, LIST THE PROPOSED ISSUES TO BE RAISED ON THE APPEAL AS THEY WILL BE DESCRIBED IN APPROPRIATE POINT HEADINGS PURSUANT TO a. 2:6-2(a)(5). (Appellant or cross-appellant only.):

I. THE GRC ERRED IN CONCLUDING THAT THE AGREEMENT WAS NOT FINAL AT THE TIME OF PLAINTIFF'S NOVEMBER 20, 2016 OPRA REQUEST.

II. THE GRC ERRED IN HOLDING THAT DEFENDANTS DID NOT VIOLATE OPRA

III. THE GRC ERRED IN RULING THAT PLAINTIFF IS NOT A PREVAILING PARTY ENTITLED TO ATTORNEYS' FEES.

IF YOU ARE APPEALING FROM A JUDGMENT ENTERED BY A TRIAL JUDGE SITTING WITHOUT A JURY OR FROM AN ORDER OF THE TRIAL COURT, COMPLETE THE FOLLOWING:

1. Did the trial judge issue oral findings or an opinion? If so, on what date? E YES 0 NO

2. Did the trial judge issue written findings or an opinion? If so, on what date? 1:1 YES E NO

3. Will the trial judge be filing a statement or an opinion pursuant to E. 2:5-1(b)? E YES 0 NO

Caution: Before you indicate that there was neither findings nor an opinion, you should inquire of the trial judge to determine whether findings or an opinion was placed on the record out of counsel's presence or whether the judge will be filing a statement or opinion pursuant to R. 2:5-1(b).

DATE OF YOUR INQUIRY:

1. IS THERE ANY APPEAL NOW PENDING OR ABOUT TO BE BROUGHT BEFORE THIS COURT WHICH:

(A) Arises from substantially the same case or controversy as this appeal?

(B) Involves an issue that is substantially the same, similar or related to an issue in this appeal?

2. WAS THERE ANY PRIOR APPEAL INVOLVING THIS CASE OR CONTROVERSY?

E YES NO

0 YES ®NO

E YES I NO

IF THE ANSWER TO EITHER 1 OR 2 ABOVE IS YES, STATE: Case Name: Appellate Division Docket Number:

Civil appeals are screened for submission to the Civil Appeals Settlement Program (GASP) to determine their potential for settlement or, in the alternative, a simplification of the issues and any other matters that may aid in the disposition or handling of the appeal. Please consider these when responding to the following question. A negative response will not necessarily rule out the scheduling of a preargument conference.

State whether you think this case may benefit from a GASP conference.

Explain your answer:

No. The issue is purely legal, as the record has been provided.

E YES • NO

I certify that confidential personal identifiers have been redacted from documents now submitted to the court, and will be redacted from all documents submitted in the future in accordance with Rule 1:38-7(b).

Harry B. Scheeler, Jr_ CJ Griffin

Name of Appellant or Respondent Name of Counsel of Record (or your name if not represented by counsel)

March 10. 2016

Date gnature of Counsel of Record (or your signature if not represented by counsel)

Revised: 0110312011, CN: 10500 (Appellate Civil CIS) page 2 of 2

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FINAL DECISION

January 26, 2016 Government Records Council Meeting

Harry B. Scheeler, Jr.Complainant

v.Galloway Township (Atlantic)

Custodian of Record

Complaint No. 2015-1 and 2015-22

At the January 26, 2016 public meeting, the Government Records Council (“Council”)considered the January 19, 2016 Supplemental Findings and Recommendations of the ExecutiveDirector and all related documentation submitted by the parties. The Council voted unanimouslyto adopt the entirety of said findings and recommendations. The Council, therefore, finds that theComplainant’s Counsel has failed to establish in her request for reconsideration of the Council’sOctober 27, 2015 Final Decision that either: 1) the Council's decision is based upon a “palpablyincorrect or irrational basis;” or 2) it is obvious that the Council did not consider the significanceof probative, competent evidence. The Complainant’s Counsel failed to establish that thecomplaint should be reconsidered based on a mistake. The Complainant’s Counsel has also failedto show that the Council acted arbitrarily, capriciously, or unreasonably. Specifically, theComplainant’s Counsel did not provide any new and compelling arguments to prove that theCouncil made a mistake in its final determination. Thus, the Complainant Counsel’s request forreconsideration should be denied. Cummings v. Bahr, 295 N.J. Super. 374 (App. Div. 1996);D'Atria v. D'Atria, 242 N.J. Super. 392 (Ch. Div. 1990); In The Matter Of The Petition OfComcast Cablevision Of S. Jersey, Inc. For A Renewal Certificate Of Approval To Continue ToConstruct, Operate And Maintain A Cable Tel. Sys. In The City Of Atl. City, Cnty. Of Atl., StateOf N.J., 2003 N.J. PUC LEXIS 438, 5-6 (N.J. PUC 2003).

This is the final administrative determination in this matter. Any further review should bepursued in the Appellate Division of the Superior Court of New Jersey within forty-five (45)days. Information about the appeals process can be obtained from the Appellate Division Clerk’sOffice, Hughes Justice Complex, 25 W. Market St., PO Box 006, Trenton, NJ 08625-0006.Proper service of submissions pursuant to any appeal is to be made to the Council in care of theExecutive Director at the State of New Jersey Government Records Council, 101 South BroadStreet, PO Box 819, Trenton, NJ 08625-0819.

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Final Decision Rendered by theGovernment Records CouncilOn The 26th Day of January, 2016

Robin Berg Tabakin, Esq., ChairGovernment Records Council

I attest the foregoing is a true and accurate record of the Government Records Council.

Steven Ritardi, Esq., SecretaryGovernment Records Council

Decision Distribution Date: January 29, 2016

Harry B. Scheeler, Jr. v. Galloway Township (Atlantic), 2015-1 and 2015-22 – Supplemental Findings and Recommendations of theExecutive Director

1

STATE OF NEW JERSEYGOVERNMENT RECORDS COUNCIL

ReconsiderationSupplemental Findings and Recommendations of the Executive Director

January 26, 2016 Council Meeting

Harry B. Scheeler, Jr.1 GRC Complaint No. 2015-1 and 2015-222

Complainant

v.

Galloway Township (Atlantic)3

Custodial Agency

Records Relevant to Complaint: Electronic copies via e-mail of Galloway Township’s(“Township”) settlement agreement with Mr. Steve Bonanni.

Custodian of Record: Kelli DanieliRequest Received by Custodian: November 20, 2014, and December 22, 2014Response Made by Custodian: November 20, 2014, and December 29, 2014GRC Complaint Received: January 5, 2015, and January 29, 2015

Background

October 27, 2015 Council Meeting:

At its October 27, 2015 public meeting, the Council considered the October 20, 2015Findings and Recommendations of the Executive Director and all related documentationsubmitted by the parties. The Council voted unanimously to adopt the entirety of said findingsand recommendations. The Council, therefore, found that:

1. The Custodian did not unlawfully deny access to the “Release and SettlementAgreement” at the time of the Complainant’s November 20, 2014, OPRA requestbecause the evidence supports that the Township had not yet executed and finalized asettlement at that time. N.J.S.A. 47:1A-6; Paff v. City of Union City (Hudson), GRCComplaint No. 2012-262 (August 2013); Kohn v. Twp. of Livingston (Essex), GRCComplaint No. 2012-328 (August 2013).

2. The Custodian did not unlawfully deny access to the “Release and SettlementAgreement” because, notwithstanding initially denying access to the records, sheprovided same to the Complainant on January 2, 2015, in response to his OPRA

1 Represented by Candida J. Griffin, Esq., of Pashman, Stein, PC (Hackensack, NJ). The Complainant notified theGRC of Ms. Griffin’s representation on October 30, 2015.2 The GRC has consolidated these complaints for adjudication because of the commonality of the parties and issues.3 Represented by Michael J. Fitzgerald, Esq., of Fitzgerald, McGroarty & Malinsky (Linwood, NJ).


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request. N.J.S.A. 47:1A-6. The Council should decline to determine whether the“Release” was exempt at the time of the Complainant’s December 22, 2014 OPRArequest, because the issue was mooted by disclosure.

Procedural History:

On October 29, 2015, the Council distributed its Final Decision to all parties. On October30, 2015, the Complainant stated that he intended to appeal the Council’s decision but firstwanted to exhaust all administrative remedies. To this end, the Complainant requested additionaltime to submit a request for reconsideration. On November 2, 2015, the GRC granted theComplainant’s request for an extension until November 23, 2015.

On November 23, 2015, the Complainant’s Counsel filed a request for reconsideration ofthe Council’s October 27, 2015 Final Decision based on a mistake.

The Complainant’s Counsel contended that the GRC erred by determining that theCustodian did not unlawfully deny access to the requested “Release.” Counsel further contendedthat the GRC erred by determining that the “Release” was subject to the ACD exemption as adraft document. Counsel argued that the “Release” only required Mr. Bonnani’s signaturebecause no other signature blocks were included thereon. Further, Counsel asserted that Mr.Bonnani had received and cashed a settlement check prior to the Complainant’s first (1st) OPRArequest. Counsel argued that Mr. Bonnani’s signature on the “Release” and the Township’ssubsequent issuance of a check proves that the “Release” was not pre-decisional in nature.Counsel also refuted that any of the evidentiary factors that the GRC relied on in making itsdetermination outweighed the foregoing. Moreover, Counsel alleged that the Council’s decisionsin Paff, GRC 2012-262, and Kohn, GRC 2012-328, were inapposite to the facts of thiscomplaint. Counsel thus requested that the GRC reconsider its decision and determine that theCustodian knowingly and willfully denied access to the responsive record.

Counsel next argued that the Complainant should be considered a prevailing partyentitled to an award of attorney’s fees. Mason v. City of Hoboken and City Clerk of the City ofHoboken, 196 N.J. 51 (2008). Counsel contended that the Complainant made a valid OPRArequest and was unlawfully denied access to the responsive record. Counsel requested that theGRC, in reconsidering that the Custodian unlawfully denied access to the responsive record, alsohold that the Complainant was a prevailing party.

Analysis

Reconsideration

Pursuant to N.J.A.C. 5:105-2.10, parties may file a request for a reconsideration of anydecision rendered by the Council within ten (10) business days following receipt of a Councildecision. Requests must be in writing, delivered to the Council, and served on all parties. Partiesmust file any objection to the request for reconsideration within ten (10) business days followingreceipt of the request. The Council will provide all parties with written notification of itsdetermination regarding the request for reconsideration. N.J.A.C. 5:105-2.10(a) – (e).


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In the matter before the Council, the Complainant’s Counsel filed the request forreconsideration of the Council’s October 27, 2015 Final Decision on November 23, 2015, thelast day of the extended deadline to submit same.

Applicable case law holds that:

“A party should not seek reconsideration merely based upon dissatisfaction with adecision.” D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990). Rather,reconsideration is reserved for those cases where (1) the decision is based upon a“palpably incorrect or irrational basis;” or (2) it is obvious that the finder of factdid not consider, or failed to appreciate, the significance of probative, competentevidence. E.g., Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996).The moving party must show that the court acted in an arbitrary, capricious orunreasonable manner. D'Atria, . . . 242 N.J. Super. at 401. “Although it is anoverstatement to say that a decision is not arbitrary, capricious, or unreasonablewhenever a court can review the reasons stated for the decision without a loudguffaw or involuntary gasp, it is not much of an overstatement.” Ibid.

In The Matter Of The Petition Of Comcast Cablevision Of S. Jersey, Inc. For A RenewalCertificate Of Approval To Continue To Construct, Operate And Maintain A Cable Tel. Sys. InThe City Of Atl. City, Cnty. Of Atl., State Of N.J., 2003 N.J. PUC LEXIS 438, 5-6 (N.J. PUC2003).

Here, the Complainant’s Counsel sought reconsideration of the Council’s decision largelyon grounds already asserted in the Complainant’s Denial of Access Complaints. Additionally,Counsel added that the “Release” could not have been in “draft” form because the Township hadalready decided to settle the complaint and pay Mr. Bonnani prior to any resolutions. The GRCdoes not find this argument compelling, as it looks to its interpretation of a finalized settlementagreement in Paff, GRC 2012-262, Kohn, GRC 2012-328, and all evidence provided as part ofthe initial adjudication.

Moreover, even if the GRC were to reconsider and find that the Custodian violatedOPRA, the Complainant would not be considered a prevailing party, as these complaints did notbring about a change, voluntarily or otherwise, in the Custodian’s conduct. Teeters v. DYFS, 387N.J. Super. 423 (App. Div. 2006). Additionally, there is no causal nexus between the filing ofthese complaints and the relief ultimately achieved. Mason, 196 N.J. 51. Specifically, theTownship disclosed the record prior to the filing of either complaint. See Knaust v. Twp. ofFrankford (Sussex), GRC Complaint No. 2008-256 (September 2009).

As the moving party, the Complainant’s Counsel was required to establish either of thenecessary criteria set forth above: either 1) the Council's decision is based upon a "palpablyincorrect or irrational basis;" or 2) it is obvious that the Council did not consider the significanceof probative, competent evidence. See Cummings, 295 N.J. Super. at 384. The Complainant’sCounsel failed to establish that the complaint should be reconsidered based on a mistake. TheComplainant’s Counsel has also failed to show that the Council acted arbitrarily, capriciously, orunreasonably. See D’Atria, 242 N.J. Super. at 401. Specifically, the Complainant’s Counsel did


4

not provide any new and compelling arguments to prove that the Council made a mistake in itsfinal determination. Thus, the Complainant Counsel’s request for reconsideration should bedenied. Cummings, 295 N.J. Super. at 384; D'Atria, 242 N.J. Super. at 401; Comcast, 2003 N.J.PUC at 5-6.

Conclusions and Recommendations

The Executive Director respectfully recommends the Council find that the Complainant’sCounsel has failed to establish in her request for reconsideration of the Council’s October 27,2015 Final Decision that either: 1) the Council's decision is based upon a “palpably incorrect orirrational basis;” or 2) it is obvious that the Council did not consider the significance ofprobative, competent evidence. The Complainant’s Counsel failed to establish that the complaintshould be reconsidered based on a mistake. The Complainant’s Counsel has also failed to showthat the Council acted arbitrarily, capriciously, or unreasonably. Specifically, the Complainant’sCounsel did not provide any new and compelling arguments to prove that the Council made amistake in its final determination. Thus, the Complainant Counsel’s request for reconsiderationshould be denied. Cummings v. Bahr, 295 N.J. Super. 374 (App. Div. 1996); D'Atria v. D'Atria,242 N.J. Super. 392 (Ch. Div. 1990); In The Matter Of The Petition Of Comcast Cablevision OfS. Jersey, Inc. For A Renewal Certificate Of Approval To Continue To Construct, Operate AndMaintain A Cable Tel. Sys. In The City Of Atl. City, Cnty. Of Atl., State Of N.J., 2003 N.J. PUCLEXIS 438, 5-6 (N.J. PUC 2003).

Prepared By: Frank F. CarusoCommunications Specialist/Resource Manager

Reviewed By: Joseph D. GloverExecutive Director

January 19, 2016

New Jersey is an Equal Opportunity Employer • Printed on Recycled paper and Recyclable

FINAL DECISION

October 27, 2015 Government Records Council Meeting

Harry B. Scheeler, Jr.Complainant

v.Galloway Township (Atlantic)

Custodian of Record

Complaint Nos. 2015-1 and 2015-22

At the October 27, 2015 public meeting, the Government Records Council (“Council”)considered the October 20, 2015 Findings and Recommendations of the Executive Director andall related documentation submitted by the parties. The Council voted unanimously to adopt theentirety of said findings and recommendations. The Council, therefore, finds that:


2. The Custodian did not unlawfully deny access to the “Release and SettlementAgreement” because, notwithstanding initially denying access to the records, sheprovided same to the Complainant on January 2, 2015, in response to his OPRArequest. N.J.S.A. 47:1A-6. The Council should decline to determine whether the“Release” was exempt at the time of the Complainant’s December 22, 2014 OPRArequest, because the issue was mooted by disclosure.

This is the final administrative determination in this matter. Any further review should bepursued in the Appellate Division of the Superior Court of New Jersey within forty-five (45)days. Information about the appeals process can be obtained from the Appellate Division Clerk’sOffice, Hughes Justice Complex, 25 W. Market St., PO Box 006, Trenton, NJ 08625-0006.Proper service of submissions pursuant to any appeal is to be made to the Council in care of theExecutive Director at the State of New Jersey Government Records Council, 101 South BroadStreet, PO Box 819, Trenton, NJ 08625-0819.

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Final Decision Rendered by theGovernment Records CouncilOn The 27th Day of October, 2015

Robin Berg Tabakin, Esq., ChairGovernment Records Council

I attest the foregoing is a true and accurate record of the Government Records Council.

Steven Ritardi, Esq., SecretaryGovernment Records Council

Decision Distribution Date: October 29, 2015

Harry B. Scheeler, Jr. v. Galloway Township (Atlantic), 2015-1 and 2015-22 – Findings and Recommendations of the Executive Director

1

STATE OF NEW JERSEYGOVERNMENT RECORDS COUNCIL

Findings and Recommendations of the Executive DirectorOctober 27, 2015 Council Meeting

Harry B. Scheeler, Jr.1 GRC Complaint No. 2015-1 and 2015-222

Complainant

v.

Galloway Township (Atlantic)3

Custodial Agency

Records Relevant to Complaint: Electronic copies via e-mail of Galloway Township’s(“Township”) settlement agreement with Mr. Steve Bonanni.

Custodian of Record: Kelli DanieliRequest Received by Custodian: November 20, 2014, and December 22, 2014Response Made by Custodian: November 20, 2014, and December 29, 2014GRC Complaint Received: January 5, 2015, and January 29, 2015

Background4

Request and Response:

On November 20, 2014, the Complainant submitted an Open Public Records Act(“OPRA”) request to the Custodian seeking the above-mentioned records. On the same day, theCustodian responded in writing, stating that the requested settlement agreement has not yet beenexecuted.

On December 22, 2014, the Complainant submitted a second (2nd) OPRA request to theCustodian seeking the above-mentioned records.5 On December 29, 2014, the Custodianresponded, advising that the settlement agreement had not yet been executed.

On January 1, 2015, the Complainant e-mailed Custodian’s Counsel, stating that anunidentified individual advised him that the Township of Galloway (“Township”) released acheck to Mr. Bonnani. The Complainant questioned how the Township could have sent Mr.Bonanni a check if there was no executed settlement agreement. On January 2, 2015, theCustodian responded in writing, advising the Complainant that Mr. Birchmeier advised her that

1 No legal representation listed on record.2 The GRC has consolidated these complaints for adjudication because of the commonality of the parties and issues.3 Represented by Michael J. Fitzgerald, Esq., of Fitzgerald, McGroarty & Malinsky (Linwood, NJ).4 The parties may have submitted additional correspondence or made additional statements/assertions in thesubmissions identified herein. However, the Council includes in the Findings and Recommendations of theExecutive Director the submissions necessary and relevant for the adjudication of this complaint.5 The Complainant sought additional records that are not at issue in this complaint.


2

the settlement agreement is now final; henceforth, she was providing the “Release andSettlement Agreement,” (“Release”) to the Complainant.

Denial of Access Complaint:

On January 5, 2015, the Complainant filed a Denial of Access Complaint for GRC 2015-01 with the Government Records Council (“GRC”). The Complainant asserted that,notwithstanding information from an unidentified source that the Township issued a check to Mr.Bonanni, the Custodian denied him access to the responsive agreement on three (3) occasionsbefore providing same on January 2, 2015. The Complainant contended that the date on the“Release,” November 4, 2014, and the Custodian’s explanation upon disclosure indicated thatshe intentionally withheld the record at the direction of Mr. Birchmeier.

The Complainant contended that OPRA requires a custodian to provide the specificlawful basis for denying access to records but does not permit a custodian to lie about theexistence of same. Further, the Complainant stated that the Appellate Division has already heldthat the public has an absolute right to settlement agreements. Burnett v. Cnty. of Gloucester,415 N.J. Super. 506, 517 (App. Div. 2010). The Complainant also stated that pending litigation isnot a lawful basis for a denial of access. Darata v. Monmouth Cnty. Bd. of Chosen Freeholders,GRC Complaint No. 2009-312 (February 2011).

The Complainant alleged that the Custodian intentionally withheld the “Release” due to“issues” while erroneously advising him that it was not “executed.” The Complainant contendedthat Mr. Bonanni’s signature date on the “Release” clearly contradicts the Custodian’s responses.The Complainant argued that the Custodian’s own statements and contrary evidence prove thatshe knowingly and willfully denied access to the “Release.” The Complainant thus requested thatthe GRC: 1) determine that the Custodian unlawfully denied access to the “Release;” and 2)determine that the Custodian knowingly and willfully violated OPRA and is subject to the civilpenalty pursuant to N.J.S.A. 47:1A-11.

Statement of Information:6

On January 26, 2015, the Custodian filed a Statement of Information (“SOI”) for GRC2015-01. The Custodian certified that she received the Complainant’s OPRA request onNovember 20, 2014. The Custodian affirmed that she contacted Mr. Birchmeier, who advisedthat no settlement was finalized. The Custodian certified that she responded in writing on thesame day, advising the Complainant that the settlement was not yet finalized. The Custodiancertified that the Complainant submitted his OPRA request again on December 22, 2014, towhich she responded on December 29, 2014, advising that the settlement was not finalized. TheCustodian certified that on December 30, 2014, Custodian’s Counsel contacted Mr. Birchmeier,who advised that the settlement was final, although he was still waiting to receive the Stipulationof Dismissal. The Custodian affirmed that, based on Mr. Birchmeier’s advice, she disclosed thesettlement agreement to the Complainant on January 2, 2015. The Custodian noted that the

6 Because the GRC consolidated these complaints, it did not require the Custodian to submit separate Statements ofInformation for each complaint.


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Township filed its “Stipulation of Dismissal” with the court on December 8, 2014, and is stillawaiting a response.

The Custodian averred that the “Release” pertained to litigation with Mr. Bonanni, theformer Township Manager, which included claims of defamation. The Custodian stated that, notsurprisingly, the litigation was extremely contentious and adversely affected the implementationof the settlement. The Custodian affirmed that Township Council met with Mr. Birchmeier inclosed session to discuss a settlement and subsequently adopted a resolution authorizing thesettlement on November 11, 2014. The Custodian certified that the resolution authorized theMayor to execute a settlement agreement (attested to by the Custodian); however, the resolutionmade the settlement contingent on the resolution of all issues and the complete satisfaction of allissues set forth in the litigation. The Custodian noted that Mr. Bonanni signed the “Release” onNovember 4, 2011, prior to the passage of the resolution, because his signature was required tobegin the process of processing a payment and ultimately settling the litigation.

The Custodian stated that, almost immediately, the Township had trouble implementing asettlement based on a disagreement between the parties about the tax obligation. The Custodianaffirmed that the Township ultimately cut a replacement check; however, the Chief FinancialOfficer (“CFO”) questioned whether the Township could add the payment to the Council’s billlist based on the confidentiality provision in the agreement. The Custodian noted thatCustodian’s Counsel rectified the issue by advising in a November 17, 2014, e-mail that Mr.Bonanni was the only party beholden to the confidentiality provision in the “Release,” but that“the settlement amount and, in fact, the settlement documents will be public records” (emphasisadded).

The Custodian asserted that, based on the circumstances presented, she lawfully deniedaccess to the “Release” on both occasions because it was a considered advisory, consultative ordeliberative (“ACD”) draft document at that time. See N.J.S.A. 47:1A-1.1; O’Shea v. WestMilford Bd. of Educ., GRC Complaint No. 2004-93;7 Kohn v. Twp. of Livingston (Essex), GRCComplaint No. 2012-328 (August 2013). The Custodian argued that she reasonably waited forMr. Birchmeier’s approval to disclose the “Release.” The Custodian asserted that the “Release,”signed only by Mr. Bonanni, was not truly a settlement agreement. The Custodian noted that anagreement requires both parties’ signatures and that the Township’s resolution required both theMayor and Mr. Bonanni’s signature, as well as for the Custodian to attest to the Mayor’ssignature. The Custodian thus asserted that she reasonably denied access to the record becausethe “Release” only contained Mr. Bonanni’s signature and Mr. Birchmeier advised her andCustodian’s Counsel that the settlement was not final. The Custodian noted that she first viewedthe “Release” on January 2, 2015, at the time that she sent same to the Complainant.

Finally, the Custodian asserted that, even if the GRC determined that she violated OPRA,said actions were not knowing and willful. The Custodian asserted that the facts actuallydemonstrate that the Custodian acted in good faith by relying on legal advice in responding to theComplainant. See Bart v. City Paterson Hous. Auth., 403 N.J. Super. 609, 619 (App. Div. 2008).

7 Affirmed on appeal in O’Shea v. West Milford Bd. of Educ., 391 N.J. Super. 534 (App. Div. 2007).


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Amended Denial of Access Complaint:

On January 27, 2015, the Complainant amended his Denial of Access Complaint to nameCustodian’s Counsel and Mr. Birchmeier as parties that participated in unlawfully denying himaccess to the “Release.” N.J.A.C. 5:105-2.3(h). The Complainant alleged OPRA provides thatany public official, officer or employee found to have knowingly and willfully violated the lawcan be fined. N.J.S.A. 47:1A-11.

The Complainant also objected to Custodian Counsel’s participation as counsel to theCustodian because he is now a named party. The Complainant contended that CustodianCounsel’s representation was a conflict of interest because he actively participated in unlawfullydenying access to the “Release.” Specifically, the Complainant noted that the Custodian copiedCustodian’s Counsel on her November 20, 2014, response and at no point did he attempt tocorrect same. The Complainant further alleged that Custodian’s Counsel also never clarified thatan agreement existed but was exempt under OPRA. The Complainant argued that he did notreceive the “Release” until after he alerted Custodian’s Counsel to his inside knowledge of theagreement on January 1, 2015. The Complainant contended that the facts here support that theCustodian, Counsel, and Mr. Birchmeier all conspired unlawfully to withhold the responsiverecord.

Denial of Access Complaint:

On January 29, 2015, the Complainant filed a Denial of Access Complaint for GRC2015-22 with the GRC. The Complainant reasserted all arguments from his Denial of AccessComplaint filing for GRC 2015-01. Moreover, the Complainant alleged that the evidence ofrecord supported that the responsive “Release” was finalized well before the December 30, 2014,date asserted by the Custodian. Specifically, the Complainant provided a copy of the checkissued to Mr. Bonanni, which he cashed many weeks prior to the Complainant’s second (2nd)OPRA request. The Complainant contended that the Township could not claim that thesettlement agreement was still pending long after Mr. Bonanni cashed the settlement check.

Additionally, the Complainant named Custodian’s Counsel and Mr. Birchmeier as partiesto the complaint, noting that OPRA’s knowing and willful violation applied to “[a] publicofficial, officer, employee or custodian . . .” N.J.S.A. 47:1A-11.

Supplemental Statement of Information:

On February 5, 2015, the Custodian submitted additional letters from Mr. Birchmeier toSummit Risk Services (the Township’s insurance servicing agency) and Benjamin Brenner, Esq.(Mr. Bonanni’s attorney), attaching a second partial Stipulation of Dismissal filed with the court.Therein, Mr. Birchmeier confirmed that the litigation between Mr. Bonanni and the Townshipwas concluded. The Custodian certified that these letters were not available at the time that shefiled the SOI; accordingly, she was providing same to the GRC as an SOI amendment.


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Amended Denial of Access Complaint Response:

On February 12, 2015, the Custodian’s Counsel responded to the Complainant’sAmended Denial of Access Complaint. First, Counsel objected to the Complainant’s attempts toname both Mr. Birchmeier and himself as parties to the complaint. Counsel asserted that theComplainant failed to support with any factual evidence the allegation of a conspiracy to denyaccess to the record.

Regarding Mr. Birchmeier, Counsel stated that the Township’s insurance carrier retainedhim for the limited purpose of representing the Township in Mr. Bonanni’s litigation; however,he did not represent nor have the authority to represent the Township on OPRA matters. Counselasserted that Mr. Birchmeier simply answered the Custodian’s (and his) inquiries regarding theComplainant’s OPRA requests, and the evidence does not support that he directed, instructed, oreven encouraged the Custodian to deny access to the responsive record.

Regarding himself, Counsel rejected the Complainant’s theory that he had an obligationto interject into the process if the Custodian was wrong and to clarify that a record existed.Counsel asserted that, even if such an obligation existed, it surely does not amount to a knowingand willful violation. Counsel also argued that the Complainant failed to provide any evidencethat he possessed actual knowledge or awareness regarding the status of the pending settlementagreement. Counsel also noted that the confusion regarding the composition of the “settlementagreement,” as set forth in the resolution he composed for the Township Council and the“Release” actually exacerbated the issue of disclosure. Counsel noted that his November 17,2014, e-mail exchange with the CFO about the confidentiality provision and reference to future“settlement documents” supported this confusion.

Additionally, Counsel contended that the Complainant failed to prove that heintentionally caused the Custodian to withhold responsive records. Counsel also asserted that itwas entirely inappropriate for the Complainant to interfere with the attorney-client relationshipbetween himself and the Township. Counsel noted that the Complainant has no knowledge of theadvice provided to the Township and that any issues of incorrect advice are between the clientand attorney, not a matter for the GRC.

Regarding disqualification of counsel, Counsel stated that the New Jersey Courts haverecognized that disqualification of counsel should be used sparsely. O Builders and Assoc., Inc.v. Yuna Corp. of NJ, 206 N.J. 109 (2011)(citing Cavallaro v. Jane Jamco Prop. Mgmt., 334 N.J.Super. 557, 572 (App. Div. 2000)). Counsel reiterated that the Complainant’s attempt todisqualify him was nothing more than a brazen effort to interfere in the attorney-clientrelationship. Further, Counsel asserted that, whether intended or not, the Complainant’s claimpotentially could have intimidated himself and his representation, thus imposing on theTownship significant inconvenience and additional costs. See LoBiondo v. Schwartz, 199 N.J.62, 113 (2009).

Counsel asserted that the evidence of record did not support that a conspiracy to denyaccess to the responsive record existed. Counsel asserted that the Custodian was under noobligation to disclose the responsive agreement until the settlement was finalized. Counsel noted


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that the Custodian provided the responsive document to the Complainant on the seventh (7th)business day after receipt of the December 22, 2014, OPRA request (and immediately after Mr.Birchmeier advised that the litigation was finalized). Thus, Counsel requested that the GRCreject the Complainant’s attempt to name Mr. Birchmeier and himself as parties to this complaintbased on a lack of evidence.

Analysis

Unlawful Denial of Access

OPRA provides that government records made, maintained, kept on file, or received by apublic agency in the course of its official business are subject to public access unless otherwiseexempt. N.J.S.A. 47:1A-1.1. A custodian must release all records responsive to an OPRA request“with certain exceptions.” N.J.S.A. 47:1A-1. Additionally, OPRA places the burden on acustodian to prove that a denial of access to records is lawful pursuant to N.J.S.A. 47:1A-6.

Initially, the parties are not disputing that settlement agreements are typically subject todisclosure.

November 20, 2014 OPRA request

In Paff v. City of Union City (Hudson), GRC Complaint No. 2012-262 (August 2013),the Council addressed the disclosability of settlements agreements and when they becomefinalized. There, although the custodian’s response was insufficient, the Council declined torequire disclosure of the requested settlement agreement because same was not finalized andcompleted until November 26, 2012. More specifically, plaintiffs signed the subject agreementon October 10, 2012, but the settlement agreement was not final and subject to disclosure untilNovember 26, 2012, when a representative from the City’s insurance carrier executed the form.Thus, at the point that both parties’ signatures appeared on the form, the GRC was satisfied thatthe agreement was finalized. The Council’s position on this issue was supported in Paff v. Cityof Union City (Hudson), GRC Complaint No. 2013-195 (Interim Order dated January 28, 2014),regarding a resubmitted request for the same agreement at issue in Paff, GRC 2012-262. There,the Council determined that the custodian unlawfully denied access to the settlement agreementbecause it was “finalized and executed” on November 26, 2012.

Moreover, in Kohn v. Twp. of Livingston (Essex), GRC Complaint No. 2012-328(August 2013), the Council addressed the date on which a settlement agreement became finalizedin order to determine whether the requested letter met the “inter-agency or intra-agency advisory,consultative or deliberative” (“ACD”) exemption at N.J.S.A. 47:1A-1.1. There, the complainantdisputed the custodian’s denial, arguing that the settlement agreement was finalized onDecember 3, 2012, when the Mayor signed same; thus, the custodian should have provided therequested letter because it was no longer ACD in nature. It should be noted that the plaintiffsigned the agreement in August 2012. The Council held that the custodian properly deniedaccess to the letter because the agreement was not finalized at the time of the complainant’sOPRA request but noted that the evidence of record did not “reveal a fully-executed agreementon December 3, 2012” because not all parties had signed the agreement. Id. at 6.


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Thus, the Council’s position on settlement agreements is that same are not finalized untilall parties have executed the agreement. The GRC will note that, in all instances above, thesettlement agreements at issue were titled “Confidential Settlement Agreement and Release” or“Settlement Agreement and Release,” which is similar or exact to the title of the “Release.”

Here, Mr. Bonanni signed the “Release” on November 4, 2014, prior to the Townshipauthorizing the Mayor to settle any litigation by resolution on November 11, 2014. Additionally,the resolution does provide for conditions: 1) all outstanding litigation issues must be resolved;and 2) both the Mayor and Custodian must execute the agreement. The resolution also refers tothe settlement as “proposed.” The evidence reveals that, at the time of the Complainant’s OPRArequest, nine (9) days after passage of the resolution and sixteen (16) days after Mr. Bonannisigned the “Release,” the Township had not finalized and executed a settlement agreement withMr. Bonanni. This is consistent with the Council’s prior reasoning on settlement agreements asdiscussed in Paff, GRC 2012-262, and Kohn, 2012-328.

Notwithstanding that the Custodian ultimately disclosed the “Release” because it was theonly document memorializing a settlement, the GRC is satisfied that she reasonably would havedenied access to the “Release.” Specifically, the Custodian certified in the SOI that she had notseen the “Release” at the time that she disclosed same on January 2, 2015. The Custodiancertified further that she believed she would have been made aware of a settlement agreementbecause she is required to witness the Mayor’s execution of same per the November 11, 2014,resolution. Moreover, Mr. Birchmeier advised that no settlement had been reached. Further, theCustodian’s Counsel’s e-mail, dated November 17, 2014, also supports that the Township hasnot finalized a settlement agreement at that time. Finally, Mr. Birchmeier filed a partialStipulation of Dismissal on December 8, 2014, over two (2) weeks after the Complainant’sOPRA request. Contrary to the Complainant’s assertion that same was final when, at the veryleast, Mr. Bonanni cashed the settlement check, the evidence supports that no settlement wasfinalized at the time of his first OPRA request.

Accordingly, the Custodian did not unlawfully deny access to the “Release” at the time ofthe Complainant’s November 20, 2014, OPRA request because the evidence supports that theTownship had not yet executed and finalized a settlement at that time. N.J.S.A. 47:1A-6; Paff,GRC 2012-262; Kohn, GRC 2012-328.

December 22, 2014 OPRA request

At the time of the Complainant’s second OPRA request, both the Custodian andCustodian’s Counsel were still under the impression that the Township had not executed andfinalized a settlement agreement. Although Mr. Birchmeier submitted a partial Stipulation ofDismissal to the courts on December 8, 2014, the Township had not received the document as“filed” at the time of the Complainant’s OPRA request. Thus, the Custodian initially deniedaccess, stating that no settlement agreement had been executed. Mr. Birchmeier confirmed thisfact to the Custodian’s Counsel on December 30, 2014. However, on December 31, 2014, stillwithin the seven (7) business day time frame, Mr. Birchmeier provided settlement documents tothe Custodian and advised that the Township could consider the settlement final. On January 2,


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2015, the seventh (7th) business day after receipt of the request, the Custodian disclosed the“Release” to the Complainant via e-mail.

The GRC first notes that only Mr. Bonanni signed the “Release.” Thus, similar to thesettlement agreement in Kohn, 2012-328, it is unclear whether it actually served as the officialsettlement agreement at the time of disclosure. Moreover, Mr. Birchmeier did not file a second(2nd) Stipulation of Dismissal, received and filed by the courts on January 15, 2015. This filinglikely signified the actual finalizing of a settlement between Mr. Bonanni and the Township, asintimated in Mr. Birchmeier’s January 26, 2015, letter to all parties participating in thatlitigation. Notwithstanding the foregoing, and although the Custodian initially denied access tothe “Release,” she ultimately disclosed same to the Complainant prior to the end of the seventh(7th) business day. This disclosure also predated the filing of GRC 2015-22.

A plain reading of OPRA thus supports that the Custodian timely provided access to therecord within the seven (7) business day time frame by providing access to the responsive record.N.J.S.A. 47:1A-5(g), N.J.S.A. 47:1A-5(i). Although the Custodian initially denied access, theGRC is satisfied that the Custodian did not unlawfully deny access to the “Release” because shereleased same still within the statutorily mandated response time frame.

Accordingly, the Custodian did not unlawfully deny access to the “Release” because,notwithstanding initially denying access to the records, she provided same to the Complainant onJanuary 2, 2015, in response to his OPRA request. N.J.S.A. 47:1A-6. The Council should declineto determine whether the “Release” was exempt at the time of the Complainant’s December 22,2014 OPRA request, because the issue was mooted by disclosure.

Raised Attorney Issues

The GRC will briefly address the issues the Complainant raised in his January 27, 2015,amended complaint for GRC 2015-01 and complaint for GRC 2015-22. Within these filings, theComplainant objected to Custodian’s Counsel’s representation in this complaint, requested thatthe GRC name Custodian’s Counsel and Mr. Birchmeier as parties to this complaint, andrequested that the GRC determine that both knowingly and willfully violated OPRA.

However, the evidence of record does not indicate that either the Custodian’s Counsel orMr. Birchmeier should be disqualified in this complaint. Additionally, the evidence does notsupport that either the Custodian’s Counsel or Mr. Birchmeier should be named in thiscomplaint. Specifically, the Complainant’s accusations that both somehow conspired with theCustodian to deny access are simply not supported by the facts. In fact, the November 11, 2014,resolution, correspondence to and from the parties regarding Mr. Bonanni’s settlementagreement, and various filings pertaining to the litigation support that no settlement agreementwas finalized at the time of either of the Complainant’s OPRA requests.

Finally, the GRC notes that the Council has already held on whether it has the authorityto fine a licensed attorney in the State. Specifically, in Carter v. Franklin Fire Dist. No. 1(Somerset), GRC Complaint No. 2011-76 (June 2015), the Council rejected complainant


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counsel’s argument that the custodian’s counsel knowingly and willfully violated OPRA.Therein, the Council stated that:

[It] has already held that it does not have the authority to fine a licensed attorney.Blanchard v. Rahway Bd. of Educ., GRC Complaint No. 2003-57 (October 2003).The Courts have ruled that such an issue is reviewable only by the SupremeCourt. N.J. Court Rule 1:20-1(a); Robertelli v. NJ Office of Attorney Ethics, 2015N.J. Super. Unpub. LEXIS 213 (App. Div. 2015).

Id. at 7.

Based on the foregoing, the Council has no authority to fine a licensed attorney – who is not thedesignated custodian of records – even if the appearance of a knowing and willful violation ispresent, which does not appear to be the case here. However, the GRC stresses that the Councilhas not been tasked with determining whether a licensed attorney, who serves as the designatedcustodian of records, can be fined for a knowing and willful violation of OPRA.

Conclusions and Recommendations

The Executive Director respectfully recommends the Council find that:


2. The Custodian did not unlawfully deny access to the “Release and SettlementAgreement” because, notwithstanding initially denying access to the records, sheprovided same to the Complainant on January 2, 2015, in response to his OPRArequest. N.J.S.A. 47:1A-6. The Council should decline to determine whether the“Release” was exempt at the time of the Complainant’s December 22, 2014 OPRArequest, because the issue was mooted by disclosure.

Prepared By: Frank F. CarusoCommunications Specialist/Resource Manager

Reviewed By: Joseph D. GloverExecutive Director

October 20, 2015

Documents

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