Agreement Settling Disciplinary Charge Against a Public Employee is Exempt From Disclosure Under OPRA, But Perhaps Available Under Common Law

Libertarians for Transparent Government v. Cumberland County, 465 N.J. Super. 11 (App. Div. 2020). Judge Accurso issued this opinion for the Appellate Division today, the first published opinion in a civil case of this new Term. It arose under the Open Public Records Act, N.J.S.A. 47:1A-1 et Seettlement seq., a statute doubtless familiar to readers of this blog. Judge Accurso well encapsulated the issue and the panel’s resolution of it in the first two sentences of her opinion:

“The central issue on this appeal is whether a settlement agreement between defendant Cumberland County and a former County employee resolving a preliminary notice of disciplinary action (PNDA) against the employee is a government record under N.J.S.A. 47:1A-10 (section 10) of the Open Public Records Act (OPRA) , N.J.S.A. 47:1A-1 to -13, the exemption for personnel records. We hold a settlement agreement resolving an internal disciplinary action against an employee is not classified as a government record under OPRA, but instead is a personnel record exempt from disclosure under section 10 of the statute.”

Plaintiff learned from minutes of the Board of the Police and Firemen’s Retirement System that Tyrone Ellis, a corrections officer employed by Cumberland County, had been charged in a PNDA with conduct unbecoming, including having sex with inmates and bringing them contraband, conduct that Ellis admitted. The PNDA sought his termination. Ellis then resigned and cooperated with authorities, which led to charges against other officers. The County then entered into a settlement agreement with Ellis that dismissed the charges against Ellis and allowed him to retire in good standing, subject to a partial forfeiture of his service and salary.

Plaintiff then made an OPRA request to the County for the PNDA, the settlement agreement, and Ellis’s “name, title, position, salary, length of service, date of separation and the reason therefor.” County Counsel responded that the PNDA and settlement agreement were not required by OPRA to be produced. But he provided the specific information that plaintiff sought and stated that Ellis “was charged with a disciplinary infraction and was terminated.”

Plaintiff filed suit under OPRA and the common law right of access, seeking the settlement agreement, in its entirety or, at least, in redacted form. The Law Division ruled that the settlement agreement was to be released with redactions. Even before actually reviewing the document in camera, the court found plaintiff to be a prevailing party. After the parties reached a consent order for attorneys’ fees to plaintiff, the County appealed, and today the Appellate Division reversed, employing de novo review.

Judge Accurso noted that OPRA applies broadly, but that access is not absolute. OPRA calls for disclosure of “covered government records” but expressly excludes “personnel records” from the definition of “government records.”

The Appellate Division had “little doubt” that the PNDA, for which plaintiff did not sue, was a “personnel record.” OPRA’s plain language states that “records relating to any grievance filed by or against an individual shall not be considered a government record.” Judge Accurso reasoned that “[i]f the disciplinary records themselves are exempt from disclosure under section 10, we have difficulty understanding why an internal settlement resolving disciplinary charges, which often involves an employee accepting discipline, would not similarly be considered a personnel record exempt from disclosure. Indeed, we expect that some employees agree to settle disciplinary charges, at least in part, to avoid public disclosure of the charges.” She distinguished cases that permitted access to settlements of civil lawsuits. This internal settlement did not implicate the same policies.

The panel then held that neither the language of OPRA nor the history of the personnel records exception permitted production of the settlement agreement in redacted form. The statutory statement that personnel records “”shall not be considered a government record and shall not be made available for public access” was absolute. Judge Accurso traced the exception back to the 1960’s, including through Executive Orders by Governors Hughes, Byrne, and McGreevey that led directly to OPRA’s predecessor, the Right to Know Law, and then to the current exception.

Judge Accurso then turned to the fact that county counsel had misstated that Ellis had been terminated when he had in fact resigned. The Law Division had cited that as a basis for allowing partial disclosure. The panel did not “condone” that misstatement, but its existence could not “affect a statutory analysis.”

But the ruling that OPRA did not require disclosure of the settlement agreement did not end the matter. Because the Law Division had not considered plaintiff’s alternative request for access under the common law, the case was remanded for consideration of that issue. Judge Accurso observed that the definition of a public record under the common law is broader than OPRA’s definition pf a government record.

The panel had “no doubt” that the settlement agreement was a public record in which plaintiff could likely show an interest. But eh balancing of those considerations against the County’s interest in confidentiality, “particularly given the County’s past assertions that disclosures could affect a then-ongoing criminal investigation,” was for the Law Division to resolve based on the current status. The decision requiring disclosure of the settlement agreement under OPRA and declaring plaintiff a prevailing party, as well as the attorneys’ fee award, were reversed.