State Courts Side with Public in Open Meetings, Records Disputes

State Supreme Courts across the country sided with news organizations, a labor union and a private citizen in recent decisions that clarified state open records and meetings laws, and mandated disclosure of salary figures and a court settlement.

New Jersey Supreme Court Orders Release of Sexual Harassment Settlement

The New Jersey Supreme Court ruled on Jan. 25, 2010, that a sexual harassment settlement involving a Monmouth County employee must be made public.

The Asbury Park Press filed a lawsuit when the county refused to disclose the terms of a 2007 settlement with Carol Melnick, who sued the Monmouth County Board of Chosen Freeholders in 2005, alleging sex discrimination, sexual harassment, retaliation, and a hostile work environment. The settlement between Melnick and the county included a confidentiality agreement.

In Asbury Park Press v. County of Monmouth, 986 A.2d 678 (N.J. 2010), the unsigned per curiam opinion ruled that withholding the outcome of a lawsuit against the county runs counter to the purpose of the state's open records act, N.J. Stat. Ann. § 47:1A-1, in maintaining transparency in government.

In unanimously affirming an appeals court decision, the judges noted that Melnick chose to file a public complaint against the county, and if the case had not settled, the lawsuit would have proceeded to a public trial where the outcome would have been revealed in open court.

"A governmental entity cannot enter into a voluntary agreement at the end of a public lawsuit to keep a settlement confidential, and then claim a 'reasonable expectation of privacy' in the amount of that settlement," the opinion concluded.

Melnick settled with the county for $470,000, the Associated Press (AP) reported on January 27.

Washington County Fined More Than $371,340 for Delayed Response to Public Records Request

On March 25, 2010, the Washington Supreme Court ordered King County to pay a $371,340 penalty to a citizen as part of a decade-long public records lawsuit over the county's failure to release information related to the proposed public financing of a football stadium in downtown Seattle.

The 5-4 ruling in Yousoufian v. King County Executive, 168 Wash.2d 335 (Wash. 2010), more than doubled the fine a trial court imposed on King County, but constituted less than half the amount the county would have had to pay under a previously vacated Washington Supreme Court ruling.

On May 30, 1997, Armen Yousoufian submitted a public records act request to the county seeking economic studies related to a proposed $300 million stadium for the Seattle Seahawks of the National Football League. Yousoufian received a partial response and repeated his request several times. He filed his lawsuit in March 2000.

In his majority opinion, Justice Gerry L. Alexander determined that the trial court abused its discretion when it fined the county $15 per day for its lack of response, resulting in a penalty of $123,780. Alexander noted that the state's public records act, Wash. Rev. Code § 42.56.080, does not include specific criteria for how to calculate a penalty, but it does require that a daily penalty between $5 and $100 must be imposed. According to the opinion, the $15 per day penalty was too small.

Alexander identified 16 different factors courts can consider in determining the proper fine for violating the public records law. Some of these factors include the "good faith" of the agency's response, the training level of the workers fulfilling the request, and the agency's ability to track and retrieve public records. The majority concluded that a $45 per day penalty totaling $371,340 was more "proportionate to the county's misconduct." Yousoufian was also awarded reasonable attorney fees and costs related to the lawsuit.

In a dissenting opinion, Justice Susan Owens called the fine a "naked exercise of discretion" and criticized the majority for imposing a penalty under the public records act that is three times higher than one ever awarded in the state.

In 2009, Washington's high court ruled that King County should pay closer to $800,000. That opinion, Yousoufian v. King County Executive, 200 P.3d 232 (Wash. 2009), written by Justice Richard B. Sanders, was withdrawn amid concerns that Sanders had a conflict of interest because of his own pending public records lawsuit against the state. Sanders did not participate in the second Yousoufian ruling.

Wyoming Supreme Court Sides with Newspaper in Open Meeting Dispute

The Wyoming Supreme Court ruled on Jan. 8, 2010, that the Cheyenne Building Code Board of Appeals violated the state's public meetings act when it held a secret meeting in 2008 to discuss demolition permits for six houses in a historic district.

Cheyenne Newspapers Inc., owner of the Wyoming Tribune Eagle, filed a lawsuit against the board in Laramie County District Court asking that the board be prohibited from making a decision about the permits before deliberating in a public meeting. The district court eventually sided with the board, but not until after the board had voted in public to deny the demolition permits.

In Cheyenne Newspapers, Inc. v. Bldg. Code Bd. of Appeals of Cheyenne, 222 P.3d 158 (Wyo. 2010), the Wyoming Supreme Court reversed, determining that the board was an "agency" under the state's public meeting act, Wyo. Stat. Ann. §§ 16-4-402, 403, and that its closed discussion constituted a meeting involving "public business."

The board, created by a city ordinance, argued that it was exempt from the act because it was not a governing body and its deliberations were "quasi-judicial."

Despite finding that the board met illegally, the court permitted the decision to deny the demolition permits to remain because the actual vote took place during an open meeting.

"[T]he Board ultimately took action and adopted its findings and conclusions in a public meeting and no provision of the Act renders void agency action taken in public that may have been discussed and/or acted upon in an illegal private meeting," Justice Marilyn Kite wrote in a concurring opinion.

Bruce Moats, an attorney who represented the newspaper, said the decision accomplished the main goal of determining that "quasi-judicial deliberations by a government entity must adhere to the public meetings act," the Tribune Eagle reported on January 9.

Kate Fox, an attorney who represented the board, said board members were happy their decision on the permits was upheld, the newspaper reported.

Massachusetts High Court Addresses Conflict in Open Meetings, Records Laws

The Massachusetts Supreme Judicial Court ruled on Dec. 31, 2009, that a school board violated the state's open meeting law when it met in a closed session to discuss the performance evaluation of a superintendent and also when members commented on the evaluation in e-mails exchanged prior to the meeting.

The case began in 2005 when a reporter for the Wayland (Mass.) Town Crier filed a complaint against the Wayland school committee after its members discussed the performance evaluation of Superintendent Gary Burton over e-mail and in two closed executive sessions.In Dist. Attorney for the N. Dist. v. Sch. Comm. of Wayland, 918 N.E.2d 796 (Mass. 2009), Justice Francis Spina clarified a conflict between the state's open meeting law, Mass. Gen. Laws ch. 39, §§ 23A-24, and its public records law, Mass. Gen. Laws ch. 66 § 10. The open meeting law does not exempt discussion of the professional competence of an employee, but the public records law protects work evaluations from public disclosure.

"In light of the requirements of both the open meeting law and the public records law, the correct procedure in this case would have been for the school committee to meet in open session to discuss the professional competence of the superintendent," Spina wrote in advising the committee on how to comply with both laws. "When the school committee reached the state of deliberations where the preparation and drafting of the written performance evaluation was imminent, it should have voted to adjourn to an executive session."

Spina also held that the e-mail exchange constituted an attempt to avoid having a public discussion about Burton's competence, and ordered the committee to release the e-mails to the public.

Glenn Koocher, the executive director of the Massachusetts Association for School Committees, said that since final written evaluations do not need to be released to the public, committee members may not reveal their most critical comments in an open meeting.

"This could be less of a win for people who cover this process if school committees save their controversial comments for the writing process," Koocher said in a Jan. 10, 2010 report in the Town Crier.

New Hampshire Supreme Court Orders Group to Release Salary Records

The New Hampshire Supreme Court ruled on Jan. 29, 2010, that an umbrella organization that represents municipalities and schools must abide by the state's Right-to-Know Law and release individual salary records to a firefighters' union.

The Professional Firefighters of New Hampshire sought the records to determine if the Local Government Center (LGC), an organization which runs health insurance pools for public employees, was channeling money collected for health insurance to other purposes. The LGC also lobbies the New Hampshire Legislature on behalf of municipalities on issues, such as retirement, that the union said could favor government employers over employees, such as firefighters, the AP reported on February 1.

The LGC argued that some of the salary information was not covered by New Hampshire's Right-to-Know Law, N.H. Rev. Stat. Ann § 91-A. The LGC previously released a document to the union containing the gross salaries of 112 workers without identifying the workers or their job titles.

Chief Justice John Broderick, Jr., in the opinion for the unanimous court, said that access to salaries for specific job titles provides insight into how taxpayer money is spent and is essential to the transparency of government.

"Public scrutiny can expose corruption, incompetence, inefficiency, prejudice and favoritism," Broderick wrote in Prof'l Firefighters of New Hampshire v. Local Gov't Ctr., Inc., 159 N.H. 699 (N.H. 2010). "Such scrutiny is necessary for the public to assess whether LGC, which has a conceded status as a governmental entity subject to the Right-to-Know Law, is being properly and efficiently managed and for educating the member municipalities regarding whether continued membership would be a wise expenditure of taxpayer money."

After the ruling, union president David Lang said that because the court determined that the LGC must comply with the Right-to-Know Law, the union will seek more documents from the center, including minutes of its meetings, according to the February 1 AP story.

"That is huge for the public," Lang said. "It's a very big win for the taxpayers."

- CARY SNYDER

SILHA RESEARCH ASSISTANT

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This page contains a single entry by cla published on June 7, 2010 1:48 PM.

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