HARRY B. SCHEELER, JR. VS. GALLOWAY TOWNSHIP(NEW JERSEY GOVERNMENT RECORDS COUNCIL) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2809-15T4
HARRY B. SCHEELER, JR.,
Appellant,
v.
GALLOWAY TOWNSHIP,
Respondent.
_________________________
Submitted September 6, 2017 – Decided November 15, 2017
Before Judges Rothstadt and Vernoia.
On appeal from the New Jersey Government
Records Council, Complaint Nos. 2015-1 and
2015-22.
Pashman Stein Walder Hayden, PC, attorneys for
appellant Harry B. Scheeler, Jr. (CJ Griffin,
of counsel and on the briefs; Michael J.
Zoller, on the briefs).
Fitzgerald & McGroarty, PA, attorneys for
respondent Galloway Township (Michael J.
Fitzgerald, of counsel and on the brief).
Christopher S. Porrino, Attorney General,
attorney for the Government Records Council
(Debra A. Allen, Deputy Attorney General, on
the statement in lieu of brief).
PER CURIAM
Complainant Harry B. Scheeler, Jr., appeals from a final
decision of the Government Records Council (GRC or Council)
dismissing two complaints alleging defendant Galloway Township
(Galloway or Township) denied access to a purported settlement
agreement in violation of the Open Public Records Act (OPRA),
N.J.S.A. 47:1A- to -13. We reverse and remand for further
proceedings.
I.
The record shows that Galloway and its mayor were sued in
2013 by former Township manager, Steven J. Bonanni, Sr. Galloway
and its mayor were represented in the litigation by an attorney
assigned by the Township's insurance carrier. There were efforts
to resolve the litigation in mediation, and in October 2014
Bonanni's attorney advised Galloway's defense counsel that Bonanni
would settle if Galloway approved the settlement by October 28,
2014, and payment of the settlement proceeds was made within ten
days thereafter. On October 28, 2014, Galloway requested that its
town solicitor prepare a resolution approving the settlement of
the Bonanni litigation.
On November 4, 2014, prior to Galloway's adoption of a
resolution approving the settlement, Bonanni signed a document
entitled "RELEASE AND SETTLEMENT AGREEMENT" (Release). In the
document, Bonanni released Galloway from all claims he may have
2 A-2809-15T4
against it. The Release did not require or permit execution by
Galloway's mayor or anyone else on Galloway's behalf.
That same day, Galloway's township solicitor responded to an
inquiry concerning the status of the Bonanni settlement. In an
email, the solicitor confirmed he had been authorized to prepare
a resolution based on a recommendation to settle the Bonanni
litigation, but that "no settlement agreement [had been] drafted
yet, let alone approved."
On November 12, 2014, Galloway's governing body adopted a
resolution in public session authorizing the settlement of the
Bonanni litigation. In pertinent part, the resolution made
Galloway's agreement to settle "subject to and conditioned upon
the execution and delivery of a general Settlement Agreement and
Release . . . resolving the litigation in full and complete
satisfaction of all issues set forth in the litigation." The
resolution further conditioned the settlement on Galloway's
defense counsel's "review and approval" of the "Settlement
Agreement and Release." The resolution required execution of a
settlement agreement by Galloway's mayor, and attestation of the
mayor's signature by Galloway's acting township clerk, who also
served as its OPRA records custodian.
3 A-2809-15T4
Prior to adopting the resolution, Galloway issued a check for
its portion of the payment due to Bonanni under the settlement,1
and sent it to Galloway's defense counsel for delivery to Bonanni's
attorney. On November 11, 2014, however, defense counsel returned
the check to the township manager and requested issuance of a new
check because the first check included tax-withholding deductions.
In a letter to the manager, defense counsel explained that under
the terms of the Bonanni settlement, Galloway's payment was not
to include withholding deductions. At the same time, defense
counsel provided the township clerk with the Release. Galloway
issued a corrected settlement check on November 12, 2014.
In response to a tip that the Bonanni litigation had been
resolved, on November 20, 2014, complainant served Galloway with
an OPRA request for the "settlement agreement with Steve Bonanni."
By that time, the Release had been signed and delivered to
Galloway's defense counsel, the settlement check had been issued,
corrected and reissued, and the attorneys had exchanged the
stipulations of dismissal they agreed would be filed to terminate
the litigation.
1
As part of the settlement agreement, the remaining portion of
the agreed upon settlement payment was made by Galloway's insurance
carrier.
4 A-2809-15T4
Having never received a written agreement signed by the mayor
as required by the resolution, on November 20, 2014, Galloway's
records custodian denied plaintiff's OPRA request in writing,
stating "[t]he requested settlement agreement for Steve Bonanni
has not been executed yet."2 That same day, Galloway's township
solicitor asked defense counsel if the Bonanni "settlement [has]
been completely finalized, including the tax deduction issue?"
Defense counsel responded that he was out of his office, but had
not "received anything as of today."
On November 24, 2014, Galloway's defense counsel forwarded
the reissued corrected settlement check to Bonanni's attorney. In
addition, Galloway's defense counsel advised he would file the
first of two separate stipulations of dismissal with the court.
The stipulation, which was dated October 30, 2014, dismissed the
case as to the mayor only. Galloway's defense counsel and
Bonanni's attorney had agreed the stipulation of dismissal as to
Galloway would be filed later.
On December 22, 2014, complainant served a second OPRA request
stating "[s]ubject to immediate release[,] please provide the
2
As noted, the resolution required that the records custodian,
who also served as the acting township clerk, attest to the mayor's
signature on the settlement agreement. The records custodian was
aware she had not attested to the mayor's signature on a settlement
agreement and therefore reasonably understood the agreement
required by the resolution had "not been signed yet."
5 A-2809-15T4
Steve Bonanni settlement agreement." On December 29, 2014, the
records custodian responded in writing, stating "Steve Bonanni's
settlement agreement has not been executed yet."
On December 30, 2014, the township solicitor asked Galloway's
defense counsel about the status of the Bonanni litigation and
whether it could be considered "final and subject to OPRA release."
Defense counsel responded the following day, advising he had just
provided a copy of the "closing documents" to the township manager,
he was waiting to file the stipulation of dismissal as to Galloway,
and the settlement was final "as far as [he was] concerned."
Defense counsel faxed copies of the release and stipulations of
dismissal to the township manager and explained that although the
documents had been previously signed, they were not approved by
the Township until "much later."
On January 1, 2015, complainant wrote to the township
solicitor advising that he was informed a check was issued to
Bonanni and inquiring how the Township could issue a check if
there was no executed settlement agreement.3 The next day, the
records custodian received the Release, and provided a copy to
complainant. The records custodian delivered the Release to
3
In fact, a settlement check was issued to Bonanni in November
2014 without there being a written settlement agreement between
Galloway and Bonanni.
6 A-2809-15T4
plaintiff within seven business days of the records custodian's
receipt of complainant's December 22, 2014 OPRA request.
Three days after receiving the Release, complainant filed a
GRC complaint alleging the records custodian unlawfully denied
access to the Release in response to his November 20, 2014 OPRA
request. Complainant asserted the November 4, 2014 release
predated the OPRA request, the records custodian knowingly and
willfully violated OPRA by failing to provide it, and the records
custodian was subject to a civil penalty under N.J.S.A. 47:1A-11.
Complainant later amended the complaint, adding Galloway's defense
counsel and township solicitor and alleging they participated in
the unlawful denial of access to the Release.
On January 15, 2015, defense counsel filed the October 30,
2014 stipulation of dismissal as to Galloway with the court. On
January 26, 2015, defense counsel advised Galloway that the Bonanni
litigation had ended.
On January 29, 2015, complainant filed a second denial of
access complaint with the GRC. The complaint reasserted the claims
in the plaintiff's initial complaint. The complaint also alleged
Galloway's records custodian, defense counsel and township
solicitor knowingly and willfully violated OPRA and should pay a
civil penalty under N.J.S.A. 47:1A-11 for wrongfully denying
immediate access to the Release in response to the December 22,
7 A-2809-15T4
2014 request. Complainant further alleged the solicitor should
be disqualified from representing Galloway in the GRC proceeding.
The GRC consolidated plaintiff's complaints and received
statements of information from the parties, and its executive
director issued written findings and recommendations. Citing the
GRC decisions in Paff v. City of Union, GRC Complaint No. 2012-
262 (Aug. 27, 2013) and Kohn v. Twp. of Livingston, GRC Complaint
No. 2012-328 (Aug. 27, 2013), the executive director reasoned that
Galloway did not have an obligation to produce the record
complainant requested on November 20, 2014, until the Bonanni
settlement was finalized. The executive director found that on
November 20, 2014, the settlement of the Bonanni litigation was
not final because Galloway "had not finalized and executed a
settlement agreement" with Bonanni as required under the
resolution.
The executive director explained that although the records
custodian later learned the Release was the only document
memorializing the settlement, she had not seen the Release prior
to the November 20, 2014 OPRA request. In addition, the executive
director found the records custodian reasonably believed no
settlement had been reached because she had not been asked to
attest to the mayor's signature on a settlement agreement as
required by the resolution. The executive director also determined
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that the settlement agreement was not final on November 20, 2014,
because the first stipulation of dismissal was not filed until
weeks later on December 8, 2014. The executive director concluded
the records custodian did not unlawfully deny access to the Release
on November 20, 2014, because "the evidence supports that the
Township had not yet executed and finalized settlement at that
time."
The executive director also addressed complainant's denial
of access complaint based on the production of the Release in
response to his December 22, 2014 OPRA request. He determined
that because only Bonanni signed the release, it was unclear
whether the document "actually served as the official settlement
agreement at the time of disclosure." He also noted that there
were conditions precedent to the final settlement of the matter,
including the filing of the stipulation of dismissal as to
Galloway, that were not satisfied when the December 22, 2014
request was made.
The executive director found it unnecessary to determine if
the Release was exempt from disclosure under OPRA because, despite
the records custodian's denial of access on December 22, 2014, she
provided the release within seven business days of the request and
therefore did not violate OPRA. The executive director also
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recommended rejection of complainant's claims against Galloway's
defense counsel and township solicitor.
The GRC adopted the executive director's findings and
recommendations. In its final agency decision, the GRC determined
the records custodian did not deny access to the release on
November 20, 2014, because the evidence showed Galloway had not
executed and finalized the settlement at that time. The GRC
further concluded that there was no denial of access to the Release
in response to complainant's December 22, 2014 request because the
document was provided within seven business days. This appeal
followed.
II.
Our standard of review of a decision by the GRC "is governed
by the same standards as review of a decision by any other state
agency." Fisher v. Div. of Law, 400 N.J. Super. 61, 70 (App. Div.
2008). "A reviewing court will not overturn an agency's decision
unless it violates express or implied legislative policies, is
based on factual findings that are not supported by substantial
credible evidence, or is arbitrary, capricious or unreasonable."
Ibid. "[U]nder our deferential standard of review, we give weight
to the GRC's interpretation of OPRA." McGee v. Twp. of E. Amwell,
416 N.J. Super. 602, 616 (App. Div. 2010). "We do not, however,
simply rubber stamp the agency's decision." Paff v. N.J. Dep't
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of Labor, 392 N.J. Super. 334, 340 (App. Div. 2007) (citation
omitted); E.g., Paff v. N.J. Dep't of Labor, 379 N.J. Super. 346,
358 (App. Div. 2005). "Our standard of review is plenary with
respect to" an interpretation of OPRA. Asbury Park Press v. Cty.
of Monmouth, 406 N.J. Super. 1, 6 (App. Div. 2009), aff'd, 201
N.J. 5 (2010).
We begin by noting that the parties do not dispute that
settlement agreements are government records and subject to
disclosure under OPRA. See Asbury Park Press v. Cty. of Monmouth,
201 N.J. 5, 6 (2009) (finding settlement agreement resolving
lawsuit between an employee and a county is a government record
subject to disclosure under OPRA). But here, the Bonanni
settlement agreement was an oral agreement between Galloway's
defense counsel and Bonanni's attorney. They agreed to the
settlement terms: Bonanni agreed to execute a release of all claims
and dismissal of the lawsuit in exchange for a monetary payment.
There was no written settlement agreement between Galloway and
Bonanni setting forth those terms, even though the resolution
required a written agreement signed by the mayor, with his
signature attested to by the acting township clerk.
Although the Release was not a contract between Galloway and
Bonanni and did not comport with the requirements of the
resolution, Galloway and the GRC considered the Release a
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government record encompassed within complainant's OPRA requests
for production of the Bonanni "settlement agreement." That is why
on January 2, 2015, the records custodian, after being advised for
the first time that the settlement was final, provided complainant
with the Release in response to his request for the Bonanni
"settlement agreement."
Relying on its decisions in Paff, supra, GRC Complaint No.
2012-262, and Kohn, supra, GRC Complaint No. 2012-328, the GRC
determined that the failure to provide the Release in response to
the November 20, 2014 request did not violate OPRA because the
settlement of the Bonanni litigation was not final at that time.
In the executive director's findings and recommendations, which
the GRC adopted, it states "the [GRC's] position on settlement
agreements is that same are not finalized until all parties have
executed the agreement." We need not address the validity of the
GRC's application of its decisions in Paff or Kohn4 because having
4
In Kohn, the GRC determined that a memorandum was not a government
record subject to disclosure under N.J.S.A. 47:1A-1.1 because it
contained "inter-agency or intra-agency advisory, consultative or
deliberative material" concerning a settlement that had not been
finalized. Kohn, supra, GRC Complaint No. 2012-328. In Paff, the
GRC found there was no denial of access to a requested "settlement
agreement" where the agreement did not exist at the time at the
time of the OPRA request. Paff, supra, GRC Complaint No. 2012-
262. Here, the GRC did not make any factual findings supporting
a determination that the Release contained "advisory, consultative
or deliberative material." Instead, the GRC assumed the Release
12 A-2809-15T4
reviewed the record, we are convinced the GRC's factual finding
that the settlement agreement was not final on November 20, 2014,
is not supported by substantial credible evidence.
"An agreement to settle a lawsuit is a contract which, like
all contracts, may be freely entered into, and which a
court . . . shall honor and enforce as it does other contracts."
Pascarella v. Bruck, 190 N.J. Super. 118, 124-25 (App. Div.),
certif. denied, 94 N.J. 600 (1983); accord Cumberland Farms Inc.
v. New Jersey Dept. of Envtl. Prot., 447 N.J. Super. 423, 438
(App. Div. 2016), certif. denied, 229 N.J. 149 (2017). Parties
to a settlement agreement "may orally, by informal memorandum, or
by both agree upon all the essential terms of the contract, and
effectively bind themselves thereon, if that is their intention,
even though they contemplate the execution later of a formal
document to memorialize their undertaking." Pascarella, supra,
190 N.J. Super. at 126.
Here, all of the terms of the settlement were agreed to
between the attorneys for the respective parties prior to November
constituted such material based on its determination that a
settlement agreement, or in this case a release, constitutes
"advisory, consultative or deliberative material" until the
settlement agreement is finalized. Because we conclude there is
insufficient evidence supporting the GRC's determination that the
settlement agreement was not final on November 20, 2014, it is
unnecessary to address the validity of the GRC's assumption.
13 A-2809-15T4
20, 2014. In accordance with the agreement, prior to November 20,
2014, the attorneys executed and exchanged the stipulations of
dismissal, Bonanni signed and delivered the Release, and Galloway
issued an initial and then corrected settlement check for its
portion of the settlement amount due to Bonanni. There was no
evidence that at any time after November 20, 2014, the attorneys
negotiated or agreed to any additional settlement terms. To the
contrary, the evidence established that Galloway and Bonanni
entered into a binding and final agreement to settle the lawsuit
prior to November 20, 2014. See, e.g., Hagrish v. Olson, 254 N.J.
Super. 133, 137 (App. Div. 1992) (finding acceptance of payment
in exchange for an agreement not to pursue an appeal constituted
a binding settlement agreement).
We are mindful that the stipulations of dismissal were not
filed and the settlement checks were not delivered until after
November 20, 2014, but the settlement agreement was final and
binding when plaintiff served its first OPRA request. The filing
of the stipulations and delivery of the checks were simply the
fulfillment of a condition of a final settlement agreement that
the attorneys, on behalf of their respective clients, reached in
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late October or very early November 2014.5 See, e.g., ibid.("Absent unusual circumstances, the courts should enforce
executory agreements to settle litigation.").
We are therefore convinced the GRC erred in concluding that
Galloway was not obligated to provide the Release on November 20,
2014 because the settlement agreement was not final. The record
lacks substantial credible evidence supporting the factual finding
upon which the GRC's conclusion is based. The parties do not
dispute that the Release is a government record, N.J.S.A. 47:1A-
1.1, and it was provided in fulfillment of one of the conditions
of the settlement agreement. Moreover, there is no evidence
showing the Release was otherwise exempt from disclosure under
OPRA when complainant first requested it on November 20, 2014.
See N.J.S.A. 47:1A-1.1 (defining "government record" under OPRA
and detailing exempt records). We therefore reverse the GRC's
determination that Galloway did not unlawfully deny access to the
Release in response to complainant's November 20, 2014 OPRA
request.
5
We are convinced the final settlement agreement was reached in
late October and early November 2014, because the stipulations are
dated October 30, 2014, the Release is dated October 30, 2014, and
was signed by Bonanni on November 4, 2014, and Galloway issued the
initial check prior to November 11, 2014.
15 A-2809-15T4
We next consider complainant's assertion that Galloway
violated OPRA by denying lawful access to the Release in response
to the December 22, 2014 request. It is undisputed that the
records custodian provided the Release within seven business days
of the request. See N.J.S.A. 47:1A-5(i) (requiring response to
request for government records "no later than seven business days"
of a request "[u]nless a shorter time period is otherwise provided
by statute, regulation, or executive order"). Nevertheless,
complainant asserts Galloway unlawfully denied access to the
Release because it is a "contract" to which he was entitled to
"[i]mmediate access" under N.J.S.A. 47:1A-5(e). We disagree.
"[C]ontracts . . . are ordinarily to be provided immediately"
in response to an OPRA request, Mason v. City of Hoboken, 196 N.J.
51, 65 (2008) (citing N.J.S.A. 47:1A-5(e)). Because the statute
does not define the term "contract," we give the term its
"generally accepted meaning, according to the approved usage of
the language." N.J.S.A. 1:1-1. Contract is defined as a "legally
enforceable agreement between two or more parties" or a "writing
or document containing such an agreement." Webster's II New College
Dictionary, 245 (1999).
Here, as noted, the settlement agreement between Galloway and
Bonanni was made orally between counsel, and was never incorporated
into a formal written agreement. The records custodian reasonably
16 A-2809-15T4
believed no settlement agreement had been made because the
resolution required the mayor's signature on any settlement
agreement and the records custodian knew that had not yet occurred.
In any event, although the Release did not include all of the
settlement terms and did not conform to the requirements of the
resolution, we are satisfied that on December 22, 2014, it was an
enforceable contract that was subject to the requirement of
immediate production under N.J.S.A. 47:1A-5(e).
The Release created contractual rights between the parties.
Under the Release, Bonanni agreed to dismiss his lawsuit and
release all claims against Galloway in exchange for the monies he
received. And although Galloway did not execute the document, the
Release granted Galloway an enforceable contractual right
precluding Bonanni's assertion of any future claims. In other
words, the Release was a contract between the parties even though
it was signed only by Bonanni. See Domanske v. Rapid-American
Corp., 330 N.J. Super. 241, 246 (App. Div. 2000) (finding "a
release is merely a form of contract"). The Release was a contract
that satisfied one of the conditions of the settlement agreement
and was a government record encompassed by complainant's requests
for the "settlement agreement."
The GRC rejected complainant's claim he was unlawfully denied
access in response to his December 22, 2014 request because it
17 A-2809-15T4
determined the Release was provided within seven days of the
request.6 This finding was based on its determination that the
settlement agreement was not final when the request was made. As
noted, the record lacks substantial credible evidence supporting
that conclusion. To the contrary, the settlement was final and
the Release constituted a contract to which Galloway should have
provided immediate access N.J.S.A. 45:1A-5(e). We reverse the
GRC's determination to the contrary.
Complainant also claims that the GRC erred by failing to
determine it was the prevailing party and was entitled to
attorney's fees. The GRC did not reach those issues and others,
including complainant's claim for the imposition of civil
penalties, because it determined there were no OPRA violations.
We will not address those claims in the first instance. The GRC
shall address the claims on remand.
Reversed and remanded for further proceedings. We do not
retain jurisdiction.
6
The executive director recommended that because the Release was
properly produced within the seven-day period, the GRC should
decline to determine if the Release was exempt from disclosure
because the settlement agreement was not yet final in December 22,
2014. Again, the record lacks sufficient credible evidence
supporting any determination that the settlement agreement was not
final on December 22, 2014.
18 A-2809-15T4