Sherry gets 'Wright' decision
Delco judge rules in her favor in lawsuit against school board
July 8, 2008
By SAM STRIKE
Main Line Life
More than one year after Newtown Square resident Judy Sherry was denied a request under Pennsylvania's Open Records law by the Radnor Township School District for documents relating to administrators' salaries and benefits, a Delaware County judge ordered that she be granted what had been withheld. The school district has a few weeks to deliver two documents to Sherry, a former school board member and close scrutinizer of the board, according to the June 30 order by Delaware County Court of Common Pleas judge Robert C. Wright, Jr.
But Sherry might have to wait longer than that.
"I think the court got this wrong no other court in Pennsylvania to my knowledge has held that documents generated for the expressed purpose of labor negotiations are public documents," said John McMeekin, Radnor School Board president.
Although appealing the order is an option, McMeekin said it's more likely that the school district will file for reconsideration and ask Wright to reconsider his order based on what the district's attorneys find to be incorrect facts and misapplications of the law.
He would not cite specific examples.
Eventually, the decision to appeal or not appeal will fall to the board members.
If the school district does appeal the order, it would require commitment of a $75,000 bond, according to the judge's order.
Wright states that the school district's denial of what is reportedly an in-house compilation of collected administrative-related data from other area school districts - one of Sherry's two requested documents - was not based on a "reasonable interpretation of law" and that the school district "willfully or with wanton disregard deprived the requester of access to a public record."
Thus, he awarded Sherry attorney fees and costs of litigation, as is allowed by the Right to Know law.
However, because there was a "good argument" that the second of Sherry's requested documents, an administrative compensation report crafted by the Pennsylvania School Boards Association (PSBA), was not subject to disclosure and the school district's "objection was not raised in bad faith," Wright reduced the awarded attorney fees by one-third of what was requested. He nonetheless ruled the administrative compensation report a public document.
The school district is ordered to pay Sherry $26,070 in attorney fees and $2,901.27 in litigation-related costs.
According to McMeekin, the school district has spent less than $30,000 defending its denials of Sherry's requests, but he did not know the exact figure.
Attempts to obtain that figure by deadline were unsuccessful.
The information that Sherry sought was: a document produced by a school district administrator that reportedly contains collected data from other school districts on elements of their administrators' contracts, and a comparative salary study created for the school district by the PSBA.
Sherry argued that the aforementioned documents directly affected a recent administrators agreement and the increase in salaries for four district employees, respectively. The school district argued that they were not documents fundamental to decisions.
Seeking the documents after the salary and benefits agreement was reached between the school district and its administrators and after the four employees salaries were raised, Sherry said she wanted to see how the decisions were made.
She said she did everything to avoid legal action.
"I hope that this results in a rethinking of what constitutes public documents," she said. "The school board is not above the law, not above the rules."
McMeekin said that Sherry's Right to Know request was treated like any and all others the district receives: it went to counsel for a decision.
Sherry and her attorneys attempted to prove their case partly from the testimony of former school board member Richard Booker, who testified that the school board's past president Kathy Fisher had said last year she did not want to create a "slippery slope" by granting a particular document request by Sherry.
Although former district business administrator Lisa Palmer testified that the "slippery slope" comment was more about consistency in granting Right to Know requests, the school district did not call any school board members to directly rebut numerous points of Booker's testimony, Sherry's lawyers point out.
McMeekin said that regardless of any "personality" issues that may exist between Sherry and Fisher, "They had nothing to do with this."
"Kathy has always, always acted in the best interest of the district. There was no personal interplay here," he said.
Judge Wright writes that the in-house produced document is merely a compilation of information from various area school districts that the public has the right to obtain under the law.
The school district's withholding of it from Sherry was "If not bad faith then at least, not in the spirit of the Right to Know law," the order states.
McMeekin doesn't agree. "I still think we did the right thing by not producing those documents we will continue in the future to have counsel continue to review Right to Know requests," he said.
Further, the decision, as is stands, would have "a deleterious effect on other school districts and municipalities. It effectively chills the type of research and fact gathering that you do when you're involved in labor discussions."
Wright's order was not short, and he made a number of rights-related statements.
For example, "The idea of being stingy when it comes to recognizing a citizen's rights is repugnant to our system of government. Indeed, it turns a right to a privilege, which may be granted or denied at the whim of those in positions of power."
Booker, speaking last week after the judge's order was issued, says he told fellow board members that they shouldn't fight Sherry's petition "because it wasn't worth spending any taxpayer money on."
But it was continued, and money was spent on it.
Speaking as a taxpayer, Booker said, "I'm incensed [about the expenditure] the district forced a lawsuit based on grounds that were not reasonable, an unreasonable interpretation of the law and I said so at the time."
In January, after Booker and Palmer's testimonies were taken, Sherry and her attorneys, sons Parker V. Sherry and Daniel J. Sherry, Jr., said they offered to settle with the school district for the documents and "a fraction" of fees that were eventually awarded to them by the judge.
The fees sought were a "conservative" calculation of the rate Parker's law firm would pay him for billable hours, and no fees were sought for Daniel's participation, they said.
The Sherrys state that neither the school district nor its legal representative Michael I. Levin responded to their settlement offer.
Sherry said that the judge's order was a strong, positive result, but that the school district's original denial of her requests last year "speaks to a culture that the board has of withholding information from the public."
Daniel J. Sherry, Jr., said that Wright's order, especially as it relates to the school district produced document, is "a ringing endorsement [for open records] and an emphatic denunciation of the school district's conduct in this case "
He said he and Parker are submitting the judge's order, findings of fact and conclusions of law, which they call significant, to the searchable database Lexis Nexis and online legal research service Westlaw.
That way, others will be able to reference it in future legal cases.
But, depending on the actions of the school district this month, that, too, may have to wait.
Reprinted with permission from The Main Line Life