COLLINGSWOOD BOARD OF EDUCATION v. JOSEPH MCLOUGHLIN

NOT FOR PUBLICATION WITHOUT THE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 only binding 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-02475-14T1

COLLINGSWOOD BOARD OF

EDUCATION,

Plaintiff-Respondent

Cross-Appellant,

v.

JOSEPH MCLOUGHLIN,

Defendant,

and

MARK S. SWANSON, and MATTHEW

SKOUFALOS,

Defendants-Appellants

Cross-Respondents.

_____________________________

October 21, 2016

Argued September 13, 2016 Decided

Before Judges Reisner, Koblitz and Rothstadt.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-3874-13.

John C. Connell argued the cause for appellants/cross-respondents (Archer & Greiner, attorneys; Mr. Connell and Benjamin D. Morgan, on the briefs).

Joseph Betley argued the cause for respondent/cross-appellant (Capehart & Scatchard, P.A., attorneys; Mr. Betley, of counsel and on the brief; Daniel J. Rosenthal, on the briefs).

Lauren James-Weir argued the case for amici American Civil Liberties Union of New Jersey Foundation and New Jersey Press Association (McCusker, Anselmi, Rosen & Carvelli, and Gibbons, P.C., attorneys; Thomas Cafferty, of counsel; Mr. Cafferty, Edward L. Barocas and Bruce S. Rosen, on the brief).

PER CURIAM

In this appeal, the media defendants, Mark S. Swanson, a reporter for the Retrospect, and Matthew Skoufalos, an editor of the Collingswood Patch,1 challenge the trial court's March 6, 2014 order denying their motion for summary judgment, which sought dismissal of the Collingswood Board of Education's (Board) complaint filed pursuant to the Declaratory Judgments Act (DJA), N.J.S.A. 2A:16-50 to -62. The media defendants also appeal from the November 10, 2014 denial of their motion for reconsideration and partial award to them of approximately $24,500 in counsel fees, heard by a different judge, as well as a January 9, 2015 order denying reconsideration. The Board cross-appeals from the April and November orders, arguing no fees should have been awarded. We reverse the denial of summary judgment and remand for reconsideration of the extent of the attorney's fees awarded.

In September 2013, the two media defendants filed a request pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, seeking a copy of an investigatory report related to special education teacher and prior varsity basketball coach Joseph McLoughlin's allegations of racial bias.2 The Board in response filed a DJA complaint, requesting a judgment "determining that the [report] is a government record pursuant to OPRA and the common law and must be provided to the requestors with any appropriate redactions" and also requesting attorney's fees. Under paragraph sixteen, the Board stated that its position was "that the [report] is subject to disclosure under OPRA and the common law and [it] is ready and willing to release" it. The Board stated it filed the complaint because releasing the document may expose it "to potential litigation and damages" from McLoughlin, and a "failure to release the [report]" could expose it to the same risk from the media requestors. The media defendants filed a counterclaim, seeking access to the report. At the summary judgment stage, media defendants argued that the Board's DJA complaint was inconsistent with OPRA. The trial court denied media defendants' request to dismiss the complaint, but granted them access to the report under OPRA as well as partial attorney's fees. The fees were discounted by the work performed in prosecuting the dismissal of the DJA action.

McLoughlin was the assistant basketball coach at Collingswood High School from 1994 through 1998, and was the head coach from 1998 until 2012. He claimed that beginning in 1999 he was subjected to incidents of racism and retaliation and accused of favoring African-American players. In the spring of 2012, McLoughlin was told he had not been reappointed as the 2012-2013 varsity basketball coach. McLoughlin, his counsel, and other members of the public alleged that the decision was motivated by racial bias. On June 25, 2012, the Board held a regular Board meeting that included public comment. The agenda also scheduled Board action as to "the recommendation of the Superintendent to hire Edward Borden as Special Investigator . . . to investigate allegations of discrimination made by [a] staff member."

The minutes from this meeting show that during the section for public comments, over thirty-five people provided negative comments regarding the failure of the Board to reappoint McLoughlin. Following the public comment, McLoughlin's then-attorney briefly explained that McLoughlin made "serious allegations of discriminatory conduct." Counsel stated that he had faxed a letter that afternoon to the superintendent of the Board, "waiving Joe [McLoughlin]'s rights to have this matter discussed privately and [seeking to] have them discussed publicly."

Counsel for the Board said it planned to hire Edward Borden, the former Camden County Prosecutor, as an independent special investigator to conduct an internal investigation of McLoughlin's allegations. The eleven Board members present unanimously voted "on the recommendation of the Superintendent, to hire Edward Borden as Special Investigator, at a rate of $250/hr, maximum 40 hours, to investigate allegations of discrimination made by staff member."

On July 26, 2012, Borden sent a letter to the Board's attorney, confirming his retention by the Board "to conduct an internal investigation of certain allegations that were made during the Board's consideration of the reappointment of Joseph McLoughlin as Collingswood High School's basketball coach." The two principal matters that Borden was hired to investigate were

(a) whether at any time any Collingswood school district administrator made any racially biased comments regarding the Collingswood High School basketball team, any of its members or potential members, or Coach McLoughlin's actions as coach and

(b) whether racial bias had any effect on the decision of [the superintendent] not to recommend Coach McLoughlin's reappointment for the 2012-13 school year.

On June 27, 2013, Borden's investigatory report, "Report of Special Investigator Regarding Allegations of Racial Bias in the Failure to Reappoint Coach Joseph McLoughlin" (the Borden report or the report), was completed. Borden shared the report with the Board.

On July 9, 2013, McLoughlin filed a New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49, action against the Board, the school superintendent, the high school principal, and the high school athletic director. The lawsuit alleged that he was retaliated against for "refusing to utilize race as a determinative factor in whether or not to play a member of the basketball team," "objecting to the use of racial slurs," and "supporting minority students who sought to qualify to play on the basketball team." Later that month, the Board's attorney sent a letter to McLoughlin's attorney providing McLoughlin and his attorney with an opportunity to view the report, but refusing to provide them with a copy of it.

On September 3, 2013, Skoufalos and Swanson submitted separate OPRA requests to the Board seeking the report. A week later, the Board asked for an additional ten days to produce the requested Borden report. Both reporters agreed, Swanson confirming that the "new deadline" would be September 25, 2013.

McLoughlin's new attorney sent the Board notice that the Borden report was not a governmental record encompassed by N.J.S.A. 47:1A-1.1 of OPRA. Counsel also stated that, prior to the Board's release of the report, McLoughlin would "file a declaratory judgment action to stop the turnover."3 Instead, the Board filed its DJA complaint naming Swanson, Skoufalos and McLoughlin as defendants.

On this appeal, the media defendants argue that the "trial court's endorsement of a custodian's DJA action as compatible with a requestor's rights under OPRA, including a partial denial of attorney's fees, is error." Amici the American Civil Liberties Union of New Jersey (ACLU) and the New Jersey Press Association support the media defendants' position, arguing that the DJA action filed by the Board was precluded by the express terms of OPRA. Amici also assert that "allowing a public agency to file a DJA action under OPRA improperly forces the requestor to litigate a government records request that he or she may not have otherwise chosen to litigate." We reverse in accordance with our recent opinion In re N.J. Firemen's Association Obligation to Provide Relief Applications Under Open Public Records Act, 443 N.J. Super. 238 (App. Div. 2015), certif. granted, 224 N.J. 528 (2016).

OPRA provides that "government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions." N.J.S.A. 47:1A-1. "[T]he purpose behind the Legislature's enactment of OPRA was 'to maximize public knowledge about public affairs in order to ensure an informed citizenry and to minimize the evils inherent in a secluded process.'" Kovalcik v. Somerset Cty. Prosecutor's Office, 206 N.J. 581, 588 (2011).

"OPRA does not limit the common law right of access." N.J. Firemen's Ass'n, supra, 443 N.J. Super. at 269. To determine whether access to public information is appropriate, a court must "balance the citizen's right of access to official information with the government's need for confidentiality." Loigman v. Kimmelman, 102 N.J. 98, 101 (1986). Our Supreme Court enunciated six factors to assist in a court's determination of whether access to a public record is appropriate. Id. at 113.4

The DJA provides our courts with the "power to declare rights, status and other legal relations, whether or not further relief is or could not be claimed." N.J.S.A. 2A:16-52. The purpose of the DJA "is to settle and afford relief from uncertainty and insecurity with respect to rights, status and other legal relations." N.J.S.A. 2A:16-51. Our Legislature intended that the DJA "be liberally construed and administered, and shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it, and to harmonize, as far as possible, with federal laws, rules and regulations on the subject of declaratory judgments." Ibid.

"[A]ppellate review of the trial court's interpretation of the pertinent statutes is de novo, for such a judicial determination concerns questions of law." Chase Bank USA, N.A. v. Staffenberg, 419 N.J. Super. 386, 396 (App. Div. 2011). In our recent decision we concluded "that a records custodian may not bring a declaratory judgment action against a record requestor to enforce its right to withhold records." Firemen's Ass'n, supra, 443 N.J. Super. at 244.

The Board filed a verified complaint seeking declaratory relief for the purposes of escaping liability and potential damages if the Board released the report sought by the press. As the ACLU points out, OPRA requires the governmental body to make precisely that judgment call: either the report is a governmental record that must be released, or it belongs within an exception carved out by statute. The Board must make that difficult judgment, relying on its legal counsel and prior court decisions as well as those of the Government Records Council. OPRA did not permit the Board to file a DJA complaint against the requestors in lieu of promptly deciding their OPRA requests.

Because we reverse the declaratory judgement decision, we are compelled to remand the attorney's fees issue as well so that the court may determine whether the fees should be adjusted to account for any work unnecessarily expended by the requestors in litigating the DJA action.

Reversed and remanded for further consideration as set forth above. We do not retain jurisdiction.

1 The Collingswood Patch is "an Internet-based news and information platform, operated by Patch Media Corporation and owned by AOL, Inc."

2 Importantly, no participant in this appeal ever disputed that the media defendant requestors had the right to this report pursuant to OPRA. Only McLoughlin took the position that the report was not a public record.

3 Had McLoughlin filed the DJA, different legal considerations would apply.

4 None of the parties or amici on appeal argues that the report was not properly released under OPRA.