Breadcrumbs For Piermont, From The RCBJ Succubus.
“Legal
Beat”: Town Of Clarkstown Subject To Second Attorney’s Fee Award For FOIL
Denials.
May
12, 2024. Rcbizjournal.
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“Courts
Have Awarded Litigants Attorney’s Fees In Two Separate Cases Where Clarkstown
Denied Having Documents Subject To FOIL”.
LEGAL
BEAT
A
former Town of Clarkstown department head has secured a yet-to-be-determined
attorney’s fee award in a lawsuit aimed at compelling the town to provide
documents through a FOIL (Freedom of Information Law) request.
Eric
Hammermeister-Kahn, the town’s former Superintendent of Parks and Recreation,
was awarded attorney’s fees in an Order issued by Rockland County Supreme Court
Justice Thomas Zugibe. The Article 78 case filed last December charged that
petitioner was entitled to a transcript of an interview between himself and a
town-hired investigator who questioned him about workplace practices.
This
is the second time in the last six months the Town of Clarkstown has been
subject to having to pay attorney’s fees to litigants in FOIL litigation. In
November 2023, after losing on appeal, the town agreed to pay attorneys for
Ateres Bais Yaakov Academy of Rockland $25,000 for[sic] attorney’s fees. The yeshiva
had sought documents regarding the town’s acquisition of the Grace Baptist
Church, to[sic] which the [T]own claimed that none existed. That settlement and payment is separate and
distinct from the $200,000 agreement the town also made with the yeshiva to
settle the $10 million RLUIPA suit.
The
Hammermeister-Kahn lawsuit, which names George Hoehmann “as FOIL Appeals
Officer” for the town and the Town[sic] of Clarkstown, alleges the town acted
illegally when it denied Hammermeister-Kahn access to a stenographer’s
transcript of his statement given to a legal consultant at the Clarkstown Town
Hall on Sept. 18, 2023.
This
is the second time in the last six months the Town of Clarkstown has been
subject to having to pay attorneys fees to litigants in FOIL litigation.
On
June 1, 2023, Hammermeister-Kahn had been told by then-Town Attorney Craig
Johns that he was under investigation for “possible use of Town computers by
Clarkstown personnel for political purposes”, the lawsuit said. On July 18, the
town hired attorney Arthur Riegel at a rate of $3,000 per day to conduct
employee interviews and make a recommendation to the town board.
In
the September interview, Hammermeister-Kahn says that he had been discriminated
against by the town due to his “sexual preference”, according to the transcript
which is now part of the court record. Hammermeister-Kahn is gay. He also
believes he received inadequate training and did not get the same respect from
Hoehmann and senior staff that other department heads[sic] enjoyed.
Although
the transcript is nearly 85 pages, what jumps out[sic] is a dispute over an
invitation that Hammermeister’s[sic] department sent to the town’s two senior
centers to host then-Democratic candidate Monica Ferguson as a speaker back in
March of 2023. Ferguson was a Democrat running for town council in the upcoming
November election. It’s unclear from the transcript exactly what Ferguson
planned to talk to the seniors about, but Hammermeister-Kahn explains the
conflict arose over the town’s policies regarding speakers who are elected
officials or candidates prior to a November election. He said he got
conflicting information from the [t]own [a]ttorney, the [s]upervisor’s office and the
senior clubs regarding who can speak and when, ranging from 30 days to 90 days
before a November election.
He
told the investigator he was told[sic] there “was a policy in place. But through my
research in trying to find this policy and asking questions nobody is able to
produce this policy”.
Ultimately,
he withdrew the invitation to candidate-Ferguson, and was called in to Town
Attorney Craig Johns’ office shortly after the incident.
Hammermeister-Kahn
told the investigator that “I’m in a hostile work environment right now and I’m
being treated unfairly compared to other department heads”. He went on to
explain that he was not “getting the praise I should be getting. It’s only
negatives. They look for anything wrong or potentially could be wrong, whether
it was an accident or not, and instead of training me and saying you did this
wrong - here’s how you can do it better. It’s an attack on me”.
He
also said, according to the transcript, that he was treated differently than
other department heads, particularly as it related to requesting new vehicles.
He said the highway superintendent had just received a $450,000 grant for new
vehicles and the Department of Engineering & Facilities Management got a
comparable grant. He said, “I’m still being told that they don’t have money to
get new vehicles for upgrades that I need for my department”. He told the
investigator the vehicles are 20 years old.
“There
are no allegations of misconduct on anybody’s part”, the investigator said[,] at
the outset.
On
November 14, 2023, Hammermeister-Kahn’s attorney Richard Glickel made a FOIL
application[sic] to Clarkstown for the transcript. A day later, the town denied the
FOIL request. The town wrote, according to the lawsuit, that it did not
“physically possess the requested documents”. Hammermeister-Kahn’s attorney
appealed the decision. On Nov. 22, the town claimed: “the record was exempt
from FOIL disclosure as attorney work product”.
FOILs
are an important tool to give the public access to records of government. It
is, in essence, part of the system of checks and balances, and it is
problematic when governments attempt to thwart such underpinnings of American
democracy. Courts have held, “In order to create a clear deterrent to
unreasonable delays and denials of access and thus, encourage government to
make a good faith effort to comply with the requirements of FOIL, the
legislature has provided for the assessment of attorney’s fees and other
litigation costs in FOIL proceedings”.
In
filing the Article 78, Hammermeister-Kahn’s attorney asserted that “a party is
always entitled to obtain a copy of his own statement and the transcribed
minutes of the Town’s consultant’s interview of petitioner isn’t attorney work
product and is not exempt or immune from disclosure”.
The
lawsuit asserted that denial of access to the court reporter’s transcription
was “arbitrary and capricious” or “an abuse of discretion and in violation of
the Freedom of Information Law”.
Hammermeister-Kahn
resigned from his position in January of 2024. His resignation was accepted by
the Town Board on January 23, 2024. He did not receive a settlement, according
to his attorney. Hammermeister-Kahn has
filed a complaint with the New York State Division of Human Rights.
On
Jan. 29, 2024, Clarkstown produced the transcript which they previously denied
having.
Justice
Thomas Zugibe in his decision wrote that the “underlying FOIL request in now
moot” and addressed the petitioner’s request for “reasonable” attorney’s fees.
The
town says that because the requested transcript was ultimately produced
“voluntarily”, the petition should be dismissed without an award of attorney’s
fee and costs. But Zugibe wrote, relying in part on the appellate decision in
the Ateres case: “Dismissal of the proceeding for mootness does not however
preclude petitioner’s request for counsel fees”.
Essentially
Zugibe’s decision recognizes it took the filing of the Article 78 against
Clarkstown for the town to produce the FOIL documents and that it[sic] improperly
denied the request.
Zugibe
further wrote: “It is clear the petitioner substantially prevailed in this
proceeding, and the only question is whether the [T]own has a reasonable basis
for denying access to the requested records”.
And[sic] the Justice also pointed out that while the town’s contentions that it did not
have the transcript at the time it was requested might be true, the town never
told Hammermeister-Kahn that he would be provided with the transcript once the
town received it.
In
his opinion, Zugibe cites the case “Matter of Ateres Bais Yaakov Academy of
Rockland v. Town of Clarkstown”, in which the town later reached a settlement
to pay $25,000 in attorney’s fees and litigation costs. In that case, the trial
court denied the yeshiva an attorney’s fee award, a denial that was reversed on
appeal.
Glickel
is seeking $16,136.72 in legal fees and costs. The town can contest the amount
sought as unreasonable. It will be up to Justice Zugibe to decide the amount.
The Town has also filed a Notice of Appeal.
https://rcbizjournal.com/2024/05/12/legal-beat-town-of-clarkstown-subject-to-second-attorneys-fee-award-for-foil-denials/
