Lawsuit to Obtain the Financial Records of Community Board 9!
Summary
MTOPP obtained preliminary evidence which showed that Carmen Martinez current Community Board 9 member was actually paid, while a Temporary Restraining Order "TRO" was in affect, preventing her from being hired. This information however could not be confirmed because of the refusal of three government agencies to comply with Freedom of Information Law "FOIL" requests and thus the need for the below lawsuit.
Please Note: This case is scheduled to appear on Thursday, April 6, 2017, at 9:30 am room 724 in the Brooklyn Supreme Court, 360 Adams St., but please check the Brooklyn Supreme Court Calendar for any updates or changes.
Below is a copy of the Lawsuit that was filed in the Brooklyn Supreme Court under Index # 923/17. If you want to review the evidence you must obtain them at the court house.
Case Name is Boyd vs MOORE Index #923/17
Petitioners: Alicia Boyd, Janine Nichols and Lorraine Thomas.
The Respondents: Musa Moore, Chairman of CB9, Demetrius Lawrence, former chairman and current board member, Community Board 9, the Office of Management and Budget for New York City and Borough President Eric Adams
Table of Contents
- Standing - Lawful Right to Bring Lawsuit
- Statement of Facts
- History
- Violation of Freedom of Information Law “FOIL” by Community Board 9
- Violation of FOIL by The Office of Management and Budget of NYC.
- Violation of FOIL by Borough President Eric Adams
- Violation of City Charter- Preliminary Evidence of Community Board 9 Paying Board member.
- Violation of the Open Meetings Law – The Misappropriation of Public Moneys by Community Board 9
- What Petitioners Demand
- Article 78 request seeking respondents to fully comply with the FOIL requests of Petitioners and the granting of Attorney and Legal Fees.
Standing (Lawful Right to Bring Lawsuit)
Petitioner Alicia Boyd has standing because (1) she is a member of the community served and is the head of a local community group who are served by respondent “CB9”; (2) there is preliminary evidence which shows that respondent CB9 violated the TRO that petitioner Boyd advocated for, regarding the hiring of Ms. Carmen Martinez; (3) because respondents’ actions impact petitioner and the group that she represents; (4) because petitioner Boyd and her members have attended all pertinent meetings of respondents; (5) because she submitted the FOILs to respondents Adams and CB9; and (6) she has been denied the right to know the budget and the actual expenditures of respondent CB9.
Petitioner Janine Nichols has standing because; (1) she is a member of the community served and is the head of a local community group who are served by respondent “CB9”; (2) because respondents’ actions impact petitioner and the group that she represents; ; (3) because petitioner Nichols and her members have attended all pertinent meetings of respondents; (4) because she submitted the FOIL to respondent OMB; and (5) she has been denied the right to know the budget and the actual expenditures of respondent CB9.
Petitioner Lorraine Thomas has standing because she is a legally appointed board member of CB9, who was served with the TRO preventing her, as a board member, from hiring Carmen Martinez. She has been denied; (1) the right to decide the salary of staff hired by respondent CB9; (2) to be kept informed on a monthly basis of the budget of respondent CB9 including its expenditures both personnel and non-personnel; (3) to engage in discussions and decisions concerning CB9’s Budget appropriations; and (11) the right to vote for or against the hiring of respondent CB9’s staff.
Statement of Facts
On information and belief for the past three years since petitioners Boyd and Nichols have been attending respondent CB9’s meetings, and petitioner Thomas has been a board member, there have been no presentations of respondent CB9’s financial records, despite the annual election of a Treasurer. Community Boards are given $223,000 a year for personnel and non-personnel expenditures.
In the Fall of 2015, Pearl Miles, former District Manager, who salary was $140,000 a year was fired from her job and there was only one person left, Ms. Witherspoon, who salary was $47,000. This left almost $175,000 at respondent CB9’s disposal.
On April 4, 2016, Ms. Witherspoon was removed from her job and thus there were no one working at the district office. This left respondent CB9 with the entire $225,000, to spend on both personnel and non-personnel expenditures. Please note that Community Boards can transfer money from their personnel expenditures to their non-personnel expenditures, which means the entire $225,000 was at respondent CB9’s disposal.
On May 5, 2016, Petitioner Boyd presented respondent CB9 with a FOIL requesting the personnel and non-personnel expenditures for June 1, 2015 to the present. Petitioner Boyd made several attempts to have respondents adhere to the FOIL, however this FOIL was denied with no explanation given.
In a series of emails dated from July 12, 2016 to August 10, 2016, between respondent CB9 and respondent OMB, it indicates that personnel forms called Planned Action Request “PAR” for the hiring of staff were submitted to respondent OMB office, by respondent Lawrence to hire and get retroactive pay for Carmen Martinez, despite the fact that Ms. Martinez was a board member.
On September 21, 2016, petitioner Boyd requested information via FOIL, from Respondent Adam, on all active and sick leave personnel from January 1, 2016 to present. Respondent Adam simply gave statements instead of factual documentation. When petitioner Boyd formally appealed the FOIL, her appeal was simply ignored amounting do a denial without cause.
On October 28, 2016 petitioner Nichols, presented respondent OMB with a FOIL requesting all personnel and non personnel expenditures of respondent CB9, from June 1, 2015 to present. Respondent OMB gave petitioner Nichols several heavily redacted emails, where it was clear that directions were being given to respondent CB9 to hire and pay Carmen Martinez. However respondent OMB failed to provide the requested documents and thus petitioner Nichols appealed their decision.
On February 8, 2017, respondent OMB gave subsequent documents, which were described as the actual expenditures for CB9, but were 99% redacted, making it impossible to gain any information from them. Also respondent OMB denied petitioner Nichols request to see the “PAR FORM 1xs”, that was submitted to respondent OMB by respondent CB9 in connection to the hiring of Carmen Martinez.
History
On May 5, 2016, petitioner Boyd sent in a FOIL request to respondent Lawrence who was the Chairperson of CB9 and the respondent CB9’s Treasurer, Simmon Bennett, requesting the personnel and non-personnel expenditures from June 1, 2015 to present.
On May 26, 2016, petitioner Boyd sent in a 2nd request for respondents to adhere to the FOIL because they had not at that point. Respondent Lawrence stated to petitioner Boyd that she “will be provided with this information soon”.
On July 1, 2016, petitioner Boyd sent a 3rd request appealing the FOIL, because it had not been answered. This was completely ignored by respondent Lawrence.
On July 12, 2016 and ending August 10, 2016, a series of emails were conducted between respondent CB9 and respondent OMB, in which it is clear that respondent CB9 was engaging in the hiring of Carmen Martinez and getting her retroactive pay for service that she rendered while being a board member of CB9. Respondent Adams was “cc” on all of these emails.
On August 3, 2016, respondent CB9 were served with a TRO, which prevented respondents CB9 from hiring Carmen Martinez. This order was extended on October 20, 2016, by Judge Saitta.
On September 21, 2016, petitioner Boyd sent in a FOIL request to respondent Adams requesting information for all active and sick leave personnel on CB9’s payroll since January 1, 2016 to present, including the former employee of CB9, Ms. Witherspoon who is a respondent in another related case Index # 1835/16
On September 19, 2016, at respondent CB9’s Executive Board meeting, petitioner Boyd stated that her FOIL that had been submitted in May for the financial records of CB9 personnel and non-personnel expenditures had not been complied with. Respondent Laurence stated that the financial record would be coming but didn’t know when.
On October 28, 2016, petitioner Nicholas sent in a FOIL to respondent OMB, requesting the personnel and non-personnel expenditures for respondent CB9 from June 1, 2015 to present.
On November, respondent CB9 produced a particle financial record of CB9 which did not contain the personnel expenditures.
On December 16, 2016, in answer to the FOIL requesting the documents pertaining to all active and sick leave personnel, respondent Adams, failed to provide any such documents concerning payroll of personnel expenditures.
On December 29, 2016, Petitioner Boyd formally appealed respondents Adams replies to her FOIL, demanding the actual documents and not simply statements made by respondent Adams.
On January 9, 2017, petitioner Nichols received documents from respondent OMB, which contained blank PAR Forms and email communications between respondent Lawrence and respondent OMB, but no personnel and non-personnel expenditures documentation.
On January 25, 2017, petitioner Nichols filed an appeal to OMB because she was not given the actual expenditures of CB9. And she requested to review the PAR FORM 1 that respondent Lawrence had given to respondent OMB on August 10, 2016.
On February 8, 2017, petitioner Nichols received a final determination from respondent OMB, in which she was given 7 pages of the actual expenditures for CB9, but which were 99% redacted making it impossible to obtained any information regarding these expenditures. Respondent OMB also denied her request to review the PAR Form 1.
First Cause of Action
Violation of FOIL Request
Community Board 9
Petitioner Boyd attempted to gain information regarding the financial expenditures from respondent CB9, but these FOIL requests have simply went unanswered and have been denied without cause.
On May 5, 2016, petitioner Boyd sent in a FOIL to respondent CB9, requesting the personnel and non-personnel expenditures from June 1, 2015 to present.
On May 26, 2016, petitioner Boyd sent 2nd request for respondent CB9 to adhere to the FOIL.
On May 26, 2016 Respondent Lawrence responded to petitioner Boyd’s FOIL and stated “You will be provided with this information soon”.
On July 1, 2016, petitioner Boyd sent a 3rd request appealing the FOIL, due to the failure of respondents to provide the documents.
On February 11, 2017, petitioner Boyd sent respondent Moore, a copy of the previous FOIL that was out of compliance in regards to the actual expenditures of CB9 and requested that it be complied with.
As of March 3, 2017 no response has been given to petitioner Boyd.
According to the FOIL law article 89 (4)(a) states:
Except as provided in subdivision five of this section, any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive or governing body of the entity, or the person therefor designated by such head, chief executive, or governing body, who shall within ten business days of the receipt of such appeal fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought. In addition, each agency shall immediately forward to the committee on open government a copy of such appeal when received by the agency and the ensuing determination thereon. Failure by an agency to conform to the provisions of subdivision three of this section shall constitute a denial.
Respondent CB9 has completely refused to follow the guidelines set forth by the FOIL laws regarding responses to FOIL requests and in the case of petitioner Boyd’s FOIL has completely denied the FOIL request.
Previously Cited Actions – Continued Violations Despite Litigation
In Boyd vs CB9 Index # 1836/16 and Boyd vs Martinez Index # 4985/16 still pending in the court, petitioners have already cited the fact that respondents have violated the FOIL, by not providing requested documents and by not responding to the FOIL requests. Paragraphs 237-253 in Boyd vs CB9 Index #1836/16 and paragraphs 84 – 87 in Boyd Vs Martinez Index # 4985/16, provide the laws and the evidence, which show that the respondent CB9 continue to violate the FOIL, despite pending litigation on that very subject and the oversight of the court.
Second Cause of Action
Violation of FOIL Request
The Office of Management and Budget of NYC
Petitioners allege that respondent OMB has purposely prevented them from reviewing the financial records and decisions that have been made by respondent CB9 regarding the hiring of personnel by submitting both emails and financial records almost 99% redacted. Thus making it impossible to gain any information regarding respondent CB9’s financial expenditures which should be readily available to the public and falls within the domain of FOIL requests.
On October 28, 2016, petitioner Nichols sent in a FOIL to respondent OMB, requesting actual expenditures of both personnel and non-personnel expenditures for respondent CB9 from June 1, 2015 to present.
On January 9, 2017, Ms. Nicolas received documents pertaining to her FOIL, in particular two blank PAR forms and a thread of emails pertaining to the hiring of staff at CB9 from July 12, 2016 - August 10, 2016. However it did not contain the actual expenditures of CB9.
On January 25, 2017, Ms. Nichols filed an appeal to respondent OMB. She also asked to see the PAR Form 1, pertaining to the hiring of staff that was submitted by respondent Lawrence, on August 10, 2016.
On February 8, 2017, Ms. Nichols received a final determination by OMB, in which she was given 7 pages of the actual expenditures for CB9, but which were almost 99% redacted, preventing her from gaining the information requested. Also her request to see the PAR form 1 that was submitted by respondent Lawrence was denied.
PAR FORMs Contain Factual Data
The PAR Forms that were submitted to petitioner Nichols and respondent CB9 submitted to respondent OMB clearly contains factual data regarding the hiring of staff at CB9. The forms pertain to the hiring of staff and contains the following information, name, salary, title of Job position, starting dates, hourly rates, salary adjustment, etc. All of these items are factual data, which pertains to the hiring of staff.
According to FOIL article 87 (2 )(g) documents that are, statistical or factual tabulations or data; instructions to staff that affect the public and final agency policy or determinations are subject to FOIL. Both the financial records of CB9 and the filled out PAR forms submitted to respondent OMB by respondent Lawrence, contained factual data, such as name, dated of employment, salary range etc…, and they represent the final determinations made by a public agency in regards to who was hired and the salary he/she was paid. The instructions which were given to respondent Lawrence by respondent OMB did lead to a determination and that is what PAR form to use to enable personnel to get paid and thus these instructions should be disclosed to the public.
Additionally according to FOIL Article 87(3) (b) states: “Each agency shall maintain a record setting forth the name, public address and title and salary of every officer or employee of the agency”. This means that this information should be disclosed to the public.
Third Cause of Action
Violation of the FOIL
Brooklyn Borough President Eric Adams
Petitioners allege that respondent Adams has been aware of what has been transpiring regarding the hiring of staff at CB9. And it is clear that FOIL is about providing documentation, not statements on agency’s letterhead. However, in an effort not to provide the documentation; respondent Adams has decided that statements on his letter head is his interpretation of compliance with the FOIL laws.
On September 21, 2016, petitioner Boyd sent in a FOIL request to respondent Adams requesting all active and sick leave personnel information on respondent CB9’s payroll since January 2016 to present including information pertaining to Ms. Witherspoon’s (former employee of CB9) employment status, sick leave and FMLA leave.
On December 16, 2016, respondent Adams responded to the FOIL but failed to provide documents pertaining to all active and sick leave personnel and to provide the actual records of Ms. Witherspoon’s sick and FMLA leave.
On December 20, 2016, petitioner Boyd challenged respondent Adam’s response to FOIL.
On December 27, 2016 respondent Adams responded to the challenged FOIL, but again gave no documentation, but simply wrote another statement.
On December 29, 2016, petitioner Boyd formally appealed the FOIL, demanding the actual documents and not simply statements made by respondent Adams.
On January 9, 2017, petitioner Boyd sent in a second notice of the FOIL appeal.
As of March 3, 2017, petitioner Boyd has not gotten any response to her FOIL appeal.
According to FOIL Law Article 86 Definitions Records mean:
“…any information kept, held, filed, produced or reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or code”. (Emphasis added)
According to FOIL law Article 89 (4)(a) states.
Except as provided in subdivision five of this section, any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive or governing body of the entity, or the person therefor designated by such head, chief executive, or governing body, who shall within ten business days of the receipt of such appeal fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought. In addition, each agency shall immediately forward to the committee on open government a copy of such appeal when received by the agency and the ensuing determination thereon. Failure by an agency to conform to the provisions of subdivision three of this section shall constitute a denial.
Respondent Adams did not put in writing why he was not complying with the FOIL request nor did he respond to petitioner Boyd’s appeal and thus this FOIL has been denied.
Fourth Cause of Action
Violation of the City Charter
Preliminary Evidence of Respondent CB9 Paying Board Member
On June 28, 2016 at respondent CB9’s Community Board meeting, respondent CB9 voted to elect Carmen Martinez as the District Manager. Carmen Martinez in an affidavit signed in September 1, 2016, stated that from June 2014 to present she had been a Community Board 9 member and had been volunteering at respondent CB9’s office since April 4, 2016.
However, on August 2, 2016, a TRO was placed against respondent CB9 in the hiring of Carmen Martinez. At the time of this writing this case is still pending in the courts.
In a series of emails between respondent OMB and respondent Lawrence, shows that respondent Lawrence was engaging in the hiring and paying of a salary for Ms. Martinez, while she was performing her duties as a community board member.
On July 12, 2016, a series of emails began, which occurred between respondent OMB and respondent Lawrence, whose subject matter was “RE: PAR Form”, which means Personnel Action Requests Form.
On July 12, 2016, respondent Lawrence stated that he would be sending a “completed form”, by Friday 22, 2016, in reference to the newly hired District Manager [Ms. Martinez].
On August 3, 2016, Ms. Barnes served respondents CB9 and respondent Lawrence with the Order to Show Cause and the TRO, preventing respondents from hiring Ms. Martinez.
On August 9, 2016, respondent OMB stated to respondent Lawrence that they “don’t approve PARS for starting dates for District Managers retroactively.” (Attached as Exhibit H.5, emphasis added) On August 10, 2016, at 8:10 am, respondent OMB directed respondent Lawrence to “send an updated form”.
On August 10, 206 at 8:54 am, respondent Lawrence stated to OMB “Okay, I’ll send you an updated form later on this morning”.
On August 10, 2016 at 2:13 pm, respondent Lawrence sent in the updated PAR form in the form of an attachment titled “FORM 1 PAR. xls”
On January 16, 2017, petitioner Nichols received two blank PAR forms from OMB via a FOIL – PAR FORM 1 and PAR FORM 2 which is in reference to the email conversation between respondent OMB and respondent Lawrence.
According to the evidence it is clear that respondent Lawrence was submitting paperwork to get Ms. Martinez hired and paid as the District Manager retroactively, despite the fact that during that very same time she had been a board member. The two PAR forms indicate clearly that these are forms for hiring staff that are done by Community Boards. PAR FORM 1 is for newly hired people or replacement hires and PAR FORM 2 is for staff that is already hired but are changing titles, positions or getting increase in salary.
From the email conversation it is clear that respondent Lawrence sent in FORM 2 (possibly in another email thread), but it was rejected by respondent OMB, because they don’t do retroactive pay for District Manager, and thus an “updated form” was submitted after the TRO was served!
There seems to be some type of direction on the part of respondent OMB to allow respondent Lawrence to pay Ms. Martinez under another category and thus the need for the “updated form” which was submitted to OMB and which ended this series of email communications. The PAR FORM 1 was submitted and it clearly shows that this form is to hire staff and set a salary for an individual. This means that Ms. Martinez was hired and given a salary for the District Manager position or under another category.
According to the City Charter Chapter 70, Article 2800 (c), “Members of community boards shall serve as such without compensation”. Thus the mere fact that respondent Lawrence was placing a request for Ms. Martinez to get paid, while she was conducting herself as a CB9 Board member, is a violation of the law. It also indicates that she was eventually paid, because the end of the email thread has respondent CB9 presenting an updated form to accomplish this goal. (Emphasis added)
Fifth Cause of Action
Violation of the Open Meetings Law “OML”
The Misappropriation of Public Moneys
According to Public Officers Law, Article 7 (105) section 1 states “..that no action by formal vote shall be taken to appropriate public moneys…” in secret. (Emphasis added).
According to an online dictionary “thefreedictionary.com” the legal definition of “appropriation” is allocation, allowance, apportionment, budget, budgeting, concession, designation of use, dispensation, distribution, setting apart; Additionally, it defines “public money” as “payment money by a government for some serviceit offers. A major example of government spending is payment of salaries for military personnel.” financialdictionary.thefreedictionary.com/Public+money.
There is preliminary evidence as sited in paragraphs 55-61, that has been produced within this petition, which shows that Ms. Martinez got paid for her work while being a member of CB9. If this fact is collaborated with the evidence that is being requested within this petition then a serious issue of the misappropriation of funds would be substantiated.
The City Charter clearly states that no board member may be compensated for work performed as a board member and Ms. Martinez in a signed affidavit has stated that she was a board member who was volunteering the entire time.
Additionally, respondent Lawrence continuously stated to the community and the board members that Ms. Martinez was volunteering and if in deed she was actually getting paid would show not only a misappropriation of funds, but may actually show criminal behavior.
Respondent Adams Implicated in Misappropriation of Moneys
Petitioners allege that respondent Adams was involved in the discussion on how to get Carmen Martinez paid for her work while being a board member in direct violation of the law and knew it would be a misappropriation of funds because community board members don’t get paid for their work.
The entire email thread, as noted above in paragraphs 55-61 which occurred between respondent OMB and respondent Lawrence, respondent Adams was “cc” on via several people from respondent Adam’s office; starting with Ruiz, Melody and then Lewis-Martin, Ingrid P, until the end of the email thread . Please note it is believed that Ms. Ingrid P. Lewis-Martin is related to Carmen Martinez.
There was one email thread that was addressed directly to respondent Adams (Melody) from respondent Lawrence.
And there is one email that was sent from respondent Adams (Melody) to respondent Lawrence.
Respondent Adams was very much aware that Carmen Martinez was a board member and that she had continued to function as one, because it is his office that appoints all board members.
Respondent Adams is also aware that board members don’t get paid and thus the attempting to have Ms. Martinez get retro pay while she had been a board member violated the law. It is even possible that respondent Adams actually encouraged and supported Ms. Martinez to get paid, but that can’t be substantiated until full disclosure is done on the email threads to see exactly what type of advice and guidance respondent Lawrence was given from respondent Adams.
Previously Cited Actions – Continued Violations Despite Litigation
In Boyd vs Eric Adams Index # 1149/15, petitioner Boyd had to file a lawsuit against respondent Adams to adhere to a FOIL request. This lawsuit also was involving unlawful behavior that respondent Eric Adams had displayed relating to Carmen Martinez and others. The evidence which was finally produced as a result of having filed the lawsuit showed that respondent Adams had not only placed Carmen Martinez and four other board members on the board illegally but also fabricated official documents to cover up these illegal behaviors.
Sixth Cause of Action
Article 78
Paragraphs 1 through 71 are repeated as more fully alleged herein.
Petitioners have exhausted all administrative remedies and have made no prior request to this or any Court for instant relief.
By reason of the foregoing, Petitioners are entitled to judgment pursuant to Article 78; (1) directing Respondent CB9 to provide all documentation responsive to petitioner Boyd’s FOIL request and all documentation regarding the financial records including both personnel and non-personnel expenditures from June 1, 2015 to present; (2) directing respondent OMB to provide all documentation responsive to petitioner Nichols FOIL Request, and all documentation regarding the financial records including personnel and non-personnel expenditures with the deleted portions restored, including all PAR forms and other documents related to the hiring of staff that were submitted to respondent OMB on behalf of respondent CB9 from June 1, 2015 to present; and (3) directing respondent Adams to provide all documentation responsive to petitioner Boyd’s FOIL request including all of respondent CB9’s expenditures and active and sick leave personnel from June 1, 2015 to present.
Petitioner Thomas is seeking this request as a board member of CB9 who should have access to all documents pertaining to the running of the Community board including all correspondence, emails etc. pertaining to the selection and salary appointment of staff in the District office. It is one of her duties to hire staff and to oversee the operations of the CB9 and this includes understanding and being kept informed of the financial expenditures and budget of CB9.
According to the City Charter Chapter 70 Article 28 (g) “Each community board may employ such other assistants as it may require within budgeted appropriations for such purposes or funds contributed for such purpose”.
Summary
Petitioners are making these requests for documents under C.P.L.R. Section 408 provide
“Leave of court shall be required for disclosure” in summary proceedings. Leave must be granted under C.P.L.R. Section 408 where (1) the moving party has asserted facts to establish a cause of action; (2) a need arises to determine information directly related to the cause of action; (3) the requested disclosure is tailored to clarify the disputed facts; (4) no prejudice will result from granting disclosure; or (5) any prejudice can be alleviated by a court; and (6) the court can structure disclosure so that the litigants' rights are protected. Courtney House, LLC v Starzecpyzel,27 Misc. 3d 1239A (Civil Court N.Y. Cty 2010); New York Univ. v Farkas, 121 Misc 2d 643, 468 N.Y.S.2d 808 (Civ Ct, NY County 1983).
Petitioners Boyd and Nichols presented lawful FOIL requests which were denied for no reason. Thus the FOIL that was presented to respondents CB9, OMB and Adams for respondent CB9’s personnel and non-personnel expenditures should be complied with and given to petitioners.
Petitioners believe that there has been a misappropriation of funds regarding the personnel expenditures by respondent CB9. Respondent CB9 has been reluctant to disclose their personnel expenditure information and yet has stated that they have not hired anyone within the last ten months. Their continued secretive behavior continues to point to under handed dealings, along with the evidence obtained from respondent OMB where it is very possible that staff has already been hired without the express permission from CB9’s board in direct violation of the law. And that this staff could very well be or was a board member. But this can’t be confirmed unless the documentation is produced.
Secondly this information should be readily available to the public, without the court’s intervention. The mere fact that the court is being asked to intervene raises a red flag that something is amiss. Three governmental agencies have completely refused to provide this information despite being presented with a lawfully binding request - FOIL. If it is true that CB9 didn’t hire anyone during the timeframe that is being requested, then why not just produce the evidence of this. The mere fact that they won’t implies that they have something to hide and that hiding is to protect themselves from disclosure of unlawful behavior that might even be criminal.
Awarding of Attorney and Legal Fees
Petitioners asserts that this is a meritorious lawsuit, which will allow the community the opportunity to review and gain information concerning decisions being made by CB9 and CB9 members. Also in light of the evidence produced so far, this article 78 allows the detection of unlawful behavior performed by public officials, to which the courts have stated is a right of the public “to know”. This lawsuit is also requesting corrective measures to decisions and behaviors that have caused harm to community residents and community board members by the illegal behavior of Respondents.
However, the community that Petitioners are representing is a moderate income community, with the average income at $40,000 and thus resources for such lawsuits are limited. The awarding of attorney fees and legal fees will continue to allow the residents of CB9 to appeal to the courts for the enforcement of the law.
In Gordon v. Village of Monticello, Supreme Court, Sullivan County, January 7, 1994, modified 207 AD2d 55, 620 NYS2d 573 (3rd Dept. 1994), reversed on other grounds 87 NY2d 124, 637 NYS2d 961, the courts made the determination "it is very often the possibility of recovering costs and attorneys' fees that gives private citizens like plaintiffs the impetus they need to bring meritorious lawsuits to enforce the Open Meetings”.
According to Public Officers Law Article 6 section 89 (4) (a,b,c,) states:
Except as provided in subdivision five of this section, any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive or governing body of the entity, or the person therefor designated by such head, chief executive, or governing body, who shall within ten business days of the receipt of such appeal fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought. In addition, each agency shall immediately forward to the committee on open government a copy of such appeal when received by the agency and the ensuing determination thereon. Failure by an agency to conform to the provisions of subdivision three of this section shall constitute a denial. (Emphasis added)
Except as provided in subdivision five of this section, a person denied access to a record in an appeal determination under the provisions of paragraph (a) of this subdivision may bring a proceeding for review of such denial pursuant to article seventy-eight of the civil practice law and rules. In the event that access to any record is denied pursuant to the provisions of subdivision two of section eighty-seven of this article, the agency involved shall have the burden of proving that such record falls within the provisions of such subdivision two. Failure by an agency to conform to the provisions of paragraph (a) of this subdivision shall constitute a denial. (Emphasis added)
The court in such a proceeding 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.(Emphasis added)
According to Article 7 section 107 (2) of the OML
“In any proceeding brought pursuant to this section, costs and reasonable attorney fees may be awarded by the court, in its discretion, to the successful party. If a court determines that a vote was taken in material violation of this article, or that substantial deliberations relating thereto occurred in private prior to such vote, the court shall awards costs and reasonable attorney’s fees to the successful petitioner.”
DATED: Brooklyn
March 4, 2017
Alicia Boyd