Matter of Lucas v Board of Educ. of the E. Ramapo Cent. Sch. Dist.

[*1] Matter of Lucas v Board of Educ. of the E. Ramapo Cent. Sch. Dist. 2017 NY Slip Op 51297(U) Decided on October 5, 2017 Supreme Court, Rockland County Thorsen, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 5, 2017
Supreme Court, Rockland County

In the Matter of the Application of Eugene Lucas, as President, East Ramapo, Transportation Special Services and Security Employee Union; and PERCELL EDWARDS, and MANUEL JUCA, on behalf of themselves and as representatives of a class of all other persons similarly situated, Petitioners, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules

against

The Board of Education of the East Ramapo Central School District; DR. DEBORAH L. WORTHAM, as Superintendent of the East Ramapo Central School District; and THE EAST RAMAPO CENTRAL SCHOOL DISTRICT, Respondents.



1640-2014



Richard Casagrande, Esq., for PetitionersHarris Beach, PLLC, for Respondents
Rolf M. Thorsen, J.

In this special proceeding commenced pursuant to CPLR Articles 4 and 78, Petitioners, in their First Cause of Action, seek an Order and Judgment declaring the decision by the Respondent, the Board of Education of the East Ramapo School District (hereinafter "Respondent," or "Board of Education" or "the Board"), voted on May 20, 2014 at a school board meeting — abolishing approximately twenty non-competitive bus driving [*2]positions — to be illegal.[FN1] Specifically, Petitioners contend that the decision was the product of a violation by Respondents of Public Officers Law §105, commonly referred to as the Open Meetings Law. In their Second Cause of Action, Petitioners seek an award of reasonable attorneys fees and costs as a result of Respondent's alleged violation of Public Officers Law §89, commonly referred to as the Freedom of Information Law ("FOIL").[FN2] The Court has considered the following papers in reaching its decision herein:

1. Amended Verified Petition and Exhibits A through N attached thereto, Memorandum of Law in Support and Exhibits A through C attached thereto;

2. Respondents' Verified Answer with Affirmative Defenses/Objections in Point of Law and Memorandum of Law in Opposition to the Verified Petition;

3. Certified Record of the Proceedings (Exhibits 1 through 34); and

4. Petitioners' Reply Memorandum of Law.

The Relevant Facts

By letter dated April 25, 2014, Diane C. Psaros, Personnel Administrator of the East Ramapo Central School District, advised approximately twenty school bus drivers that "[d]ue to staff reductions, [she] is forced to recommend to the Board of Education at its next meeting on May 6, 2014, that [their] position[s] be abolished effective August 1, 2014." See, Certified Record of Proceedings (hereinafter "CRoP") at Exhibit 1. The meeting agenda for the May 6, 2014 Board of Education meeting under the heading "Routine Matters" listed as Item C, "Personnel Report for Civil Service Staff and Addendum." See, CRoP at Exhibit 2. A document entitled "Regular Meeting of the Board of Education, May 6, 2014, Civil Service Personnel Report Addendum" stated as the first topic of business the terminations of the bus drivers and listed the names of the twenty affected bus drivers. See, CRoP at Exhibit 3.

At the May 6, 2014 Board of Education meeting, the public hearing portion of the meeting began at 8:14 p.m. At 8:34 p.m., the regular meeting was called to order. Numerous topics were discussed as set forth in the agenda. With respect to the agenda item labeled "Routine Matters," all items were discussed except Item C, which was "tabled under after executive session." See, CRoP at Exhibit 4. At 8:48 p.m., a motion was made and "passed" allowing the Board of Education to "convene into executive session to discuss litigation, personnel, real estate, and contracts...." See, CRoP at Exhibit 4. The Board of Education met in executive [*3]session until 10:00 p.m. When the Board of Education reconvened into open session, all matters listed on the agenda under "Routine Matters - Item C" were approved except for Item I pertaining to the terminations of the bus drivers. See, CRoP at Exhibit 4. The minutes further reflect that although the Board of Education had not received any written communications, an attorney with the New York State Union of Teachers, representing members of the East Ramapo Employees Union, spoke to the Board of Education about the proposed terminations of the bus drivers.

The next meeting of the Board of Education was scheduled for May 20, 2014. See, CRoP at Exhibits 4, 5 and 6. As with the May 6th meeting agenda, the agenda for the May 20, 2014 Board of Education meeting similarly contained the heading "Routine Matters" and listed thereunder was Item C, "Personnel Report for Civil Service Staff and Addendum." See, CRoP at Exhibit 5. Again, a document entitled "Regular Meeting of the Board of Education, May 20, 2014, Civil Service Personnel Report Addendum" indicated as the first topic of business the terminations of the bus drivers and listed the names of the twenty affected bus drivers. See, CRoP at Exhibit 6.

On May 20, 2014, the "regular meeting" of the Board of Education commenced at 8:41 p.m. With respect to Item C under Routine Matters, i.e., the termination of the bus drivers, the topic was "tabled until after executive session." See, CRoP at Exhibit 7. All other items listed under the heading of "Routine Matters" were approved. At 9:01 p.m., after a motion was made and passed, the Board of Education "convened into executive session to discuss litigation, personnel, real estate, and contracts...." See, CRoP at Exhibit 7. The Board met in executive session for almost three hours. At 11:57 p.m., the Board "reconvened into open session." See, CRoP at Exhibit 7, p. 5. Among other actions taken by the Board, the Board approved Routine Matters, Item C, effectively terminating the twenty bus drivers. The minutes of the meeting reflect that the Board received numerous written communications with respect to the proposed layoff of bus drivers and that Amanda Vasquez, an attorney with the New York State Union of Teachers, addressed the Board on that topic as well.

Prior to the May 6, 2014 meeting, a FOIL request on behalf of the Petitioners was sent via e-mail requesting numerous documents "reflecting a cost analysis of transportation services." See, CRoP at Exhibit 8. Thereafter, three more FOIL requests were made on behalf of the Petitioners requesting additional documents pertaining to transportation services. Due to the Board of Education's delinquency in responding, Petitioners appealed the denial of their FOIL requests, as is statutorily required, and ultimately commenced the within Article 78 proceeding alleging a violation of the Freedom of Information Law.[FN3]

Legal Discussion:

In their First Cause of Action, Petitioners allege that Respondent violated Public Officers Law §100, et seq., the Open Meetings Law, by improperly entering into executive session on May 6, 2014 and May 20, 2014 to discuss the proposed layoffs of the twenty bus drivers. Specifically, Petitioners contend that the Board's stated reasons for entering into executive sessions on those dates, i.e., "to discuss litigation, personnel, real estate, and contracts," do not rise to the level of specificity that is required for entering into executive session. The Court agrees with Petitioners and finds that the Board of Education violated the Open Meetings Law on May 6, 2014 and May 20, 2014.

The legislative intent of the Open Meetings Law is set forth within the statute itself. Section 100 of the Open Meetings Law provides as follows:

It is essential to the maintenance of a democratic society that the public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy. The people must be able to remain informed if they are to be retain control over those who are their public servants. It is the only climate under which the commonweal will prosper and enable the governmental process to operate for the benefit of those who created it.

In other words, "the purpose of the Open Meetings Law is to prevent municipal governments from debating and deciding in private what they are required to debate and decide in public." Gernatt Asphalt Prods v. Town of Sardinia, 87 NY2d 668, 686 (1996).

To that end, Open Meetings Law §103(a) states that "[e]very meeting of a public body shall be open to the general public, except that an executive session of such body may be called and business transacted thereat in accordance with section [105] of this article." Thus, in order to transact business in "private," the public body must adhere to the procedures set forth in the statute for entering into an executive session. Specifically, a public body can only enter into executive session "[u]pon a majority vote of its total membership, taken in an open meeting pursuant to a motion identifying the general area or areas of the subject or subjects to be considered." Public Officers Law §105(1). The subject or subjects to be considered are limited to the eight "enumerated purposes" set forth in the statute. They are:

a. matters which will imperil the public safety if disclosed;b. any matter which may disclose the identity of a law enforcement agent or informer;c. information relating to current or future investigation or prosecution of a criminal offense which would imperil effective law enforcement if disclosed;d. discussions regarding proposed, pending or current litigation;e. collective negotiations pursuant to article fourteen of the civil service law;f. the medical, financial, credit or employment history of a particular person or corporation, or matters leading to the appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal of a particular person or corporation;g. the preparation, grading or administration of examinations; andh. the proposed acquisition, sale or lease of real property or the proposed acquisition of securities, or sale or exchange of securities held by such public body, but only when publicity would substantially affect the value thereof.

Thus, "[t]he [Open Meetings Law] is violated when a quorum of a public body holds a private meeting for the purpose of transacting public business, thus making unavailable for public scrutiny that body's deliberative process." MCI Telecoms. Corp. v. PSC, 231 AD2d 284 (3d Dept. 1997).

Applied here, although the Board of Education complied with the statutory procedure for entering into executive session during the May 6, 2014 and May 20, 2014 meetings, i.e., a majority vote of its total membership during an open meeting, the Court finds that the Board of Education nevertheless violated the Open Meetings Law by inadequately describing the purpose for entering into the executive sessions. See, Matter of Cutler v. Town of Mamakating, 137 AD3d 1373, 1375 (3d Dept. 2016). "Given the overriding purpose of the Open Meetings Law, section 105 is to be strictly construed, and the real purpose of an executive session will be carefully scrutinized 'lest the ... mandate [of the Open Meetings Law] be thwarted by thinly veiled references to the areas delineated thereunder.'" Matter of Zehner v. Board of Educ. of Jordan-Elbridge CSD, 91 AD3d 1349, 1350 (4th Dept. 2012), quoting, Daily Gazette Co. v. Town Bd., Town of Cobleskill, 111 Misc 2d 303, 304 (Schoharie Cnty. Supr. Ct. 1981). As was done here, by merely reciting to "litigation, personnel, real estate, and contracts" as the basis for entering into executive session, without describing with some detail the nature of the proposed discussions, the Board of Education has done exactly what the Open Meetings Law was designed to prevent. Nowhere does the Board of Education identify, for example, the name of the case that will be the subject of the discussion regarding "litigation," or the name of the property that will be the subject of the discussion regarding "real estate." Similarly, the Board of Education fails to identify which "contracts" they will be discussing during executive session or what particular "personnel" issues they will be discussing. As a result, the public lacks the ability to determine whether the subjects may properly be considered in private.

Having determined that the Board of Education has violated the Open Meetings Law, the Court must now determine the effect of that violation, if any. In that regard, it is well settled that "not every breach of the 'Open Meetings Law' automatically triggers its enforcement sanctions." New York Univ. v. Whalen, 46 NY2d 734, 735 (1978). Rather, in an action or proceeding commenced pursuant to Article 78, "the court shall have the power, in its discretion, upon good cause shown, to declare any action or part thereof taken in violation of this article void in whole or in part." Public Officers Law §107(1); see also, Matter of Thomas v. NYC Dept. of Educ., 145 AD3d 30, 36 (1st Dept. 2016).

Applied here, the Court finds that Petitioners have established good cause to declare the action taken by the Board of Education, on May 20, 2014 — approving the termination of the twenty bus drivers — to be void. The Petitioners have submitted evidence to sufficiently establish [*4]that the Board of Education has engaged in a persistent pattern of deliberate violations of the letter and spirit of the Open Meetings Law by, inter alia, improperly convening executive sessions and limiting the public's opportunity to participate at Board meetings.[FN4] See, Goetschius v. Board of Educ., 281 AD2d 416, 417 (2d Dept. 2001).

Turning next to the Second Cause of Action, Petitioners seek attorneys fees and costs due to Respondent's violation of the Freedom of Information Law. In opposition, although the Board of Education does not dispute that they failed to comply with the provisions of the Freedom of Information Law, Respondent argues that since Respondent has provided to the Petitioners all of the documents that Petitioners requested, any alleged violations have been rendered moot. The Court finds in favor of Petitioners on their Second Cause of Action.

Public Officers Law Section 89(4)(c) provides that "[t]he court in [a proceeding to review a violation of the Freedom of Information Law] may assess, against such agency involved, reasonable attorney's fees and other litigation costs reasonably incurred by such person in any case under the provisions of this section in which such person has substantially prevailed, when: i. the agency had no reasonable basis for denying access; or ii. the agency failed to respond to a request or appeal within the statutory time." The purpose in permitting an award of attorney's fees and costs in such proceedings is "to create a clear deterrent to unreasonable delays and denials of access [and thereby] encourage every unit of government to make a good faith effort to comply with the requirements of FOIL." Matter of Acme Bus Corp. v. County of Suffolk, 136 AD3d 896, 898 (2d Dept. 2016)(Internal quotations omitted).

Here, the Court finds that an award of attorney's fees and costs to Petitioners is appropriate under the circumstances. Although Respondent may have eventually responded to Petitioners' FOIL requests, Respondent did not do so in the manner prescribed by the Freedom of Information Law. Respondent failed to acknowledge receipt of Petitioners' FOIL requests, failed to either grant or deny Petitioners' FOIL requests and failed to render a decision with respect to Petitioners' appeals of the constructive denials of their FOIL requests. See, Public Officers Law §89. Rather, only after Petitioners commenced the within Article 78 proceeding did Respondent eventually provide the documents requested under FOIL. As such, the Court finds the purpose in permitting an award of attorney's fees and costs in a proceeding such as this — to deter unreasonable delays and denials of access — is entirely warranted.

Based on the foregoing, it is hereby

ORDERED, ADJUDGED and DECREED that the Petition is granted to the extent set forth herein; and it is further

ORDERED, ADJUDGED and DECREED that Respondent, Board of Education, violated the provisions of the Open Meetings Law, specifically Public Officers Law §105; and it is further

ORDERED, ADJUDGED and DECREED that the motion approving the termination of the bus drivers listed on the Personnel Report for Civil Service Staff and Addendum on May 20, 2014 is vacated and set aside; and it is further

ORDERED and ADJUDGED that the matter is remitted to the Respondent, Board of Education, to take all actions as are necessary and required in accordance herewith; and it is further

ORDERED that a hearing shall be held on November 13, 2017 at 11:00 a.m. to determine the amount to be awarded to Petitioners for reasonable attorneys fees and costs; and it is further

ORDERED that all other relief not specifically addressed herein is denied.

The foregoing shall constitute the Decision and Order of this Court.

Dated: October 5, 2017

New City, New York

HON. ROLF M. THORSEN

Acting Supreme Court Justice Footnotes

Footnote 1:Although commenced in 2014, due to numerous adjournments and the retirement of the Honorable Victor J. Alfieri, Jr. in December 2016, the within proceeding was re-assigned to the undersigned. Upon this Court's partial denial of Respondents' motion to dismiss, Respondents were granted additional time to file an answer and to fully brief the issues raised.

Footnote 2:By Decision and Order dated February 17, 2017, this Court dismissed Petitioners' Third Cause of Action.

Footnote 3:Although Respondent alleges that it has provided thousands of documents to Petitioners in response to their FOIL requests, the Court notes that said documents were provided only after the within Article 78 proceeding was commenced.

Footnote 4:Due to the serious fiscal issues facing the East Ramapo Central School District, in the spring of 2014, a Fiscal Monitor was appointed "to serve the District in an advisory capacity in order to ensure that the District is able to provide an appropriate educational program and properly manage and account for state and federal funds received." See, Amended Verified Petition at Exhibit H. After a full investigation of the District, the Fiscal Monitor, in his Report of Investigation dated November 17, 2014, found that the Board of Education "lacks transparency." Specifically, the Fiscal Monitor reported that the "Board routinely spends 60% to 70% of meetings (sometimes more) in executive session" and that the "Board also limits opportunity for public participation at Board meetings, by not allowing the public to speak until the end of meetings (e.g., after 10:00 or 11:00 p.m.)." See, Amended Verified Petition at Exhibit H, p. 35.