|
RCBJ-Audible (Listen For Free)
 |
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 attorney’s fees. The yeshiva had sought documents regarding the town’s acquisition of the Grace Baptist Church, to which the Town 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 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 enjoyed.
Although the transcript is nearly 85 pages, what jumps out is a dispute over an invitation that Hammermeister’s 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 town attorney, the supervisor’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 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 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 improperly denied the request.
Zugibe further wrote: “It is clear the petitioner substantially prevailed in this proceeding, and the only question is whether the Town has a reasonable basis for denying access to the requested records.”
And 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.
