The Truth About Brooks v. Tabernacle

pinochio-liarAt its August 22, 2015 meeting, the Township Committee voted to approve Resolution 2016-97, which authorized payment of $18,000 for legal fees to my attorney. The amount of my attorney’s fees was a compromise based on my attorney’s itemized bill (July 18, 2016, closed session minutes).

The payment of legal fees was ordered by the Court after it ruled that the Township wrongly withheld documents that I requested through the Open Public Records Act (OPRA) and the common law right of access (“common law”). For more information about this lawsuit, see the March 22, 2015 and the August 9, 2016, TTJ Posts.

In addition to my attorney’s fees, the Township has paid Mr. Lange $26,417 for his work in the case as of May 2016 (see Lange invoices). This makes the total bill $44,417 so far. More bills from Mr. Lange are possible.

The $44,000 cost is staggering in light of my July 9, 2015 offer to settle the case for $300. Three hundred dollars was the amount that it cost to file my lawsuit.

My attorney was willing to waive all of his fees ($11,729) if the Township produced the documents under the common law. Both sides believed that the common law required the documents to be produced so the monetary settlement seemed extremely reasonable. But the Township Committee rejected my offer at its July 13, 2015 closed session meeting (a.k.a. “executive session” meeting).

Just before the Committee voted to approve the $18,000 payment, Mr. Lange gave his explanation of why the Township spent so much money litigating the case instead of settling it for $300.

His explanation was largely a “cover your backside” exercise on behalf of the Committee. I was not surprised to hear half-truths and nuanced shadings from Mr. Lange because he had to stretch a lot to justify the Committee’s decision.

But I was surprised to hear how far from the truth Mr. Lange strayed. He said things that are completely untrue.

After Mr. Lange’s “explanation,” my husband pointed out that it was a “sugarcoated” version; and he pointed out some of the untruths. For example, Mr. Lange repeatedly said that my husband and I filed the suit. That’s wrong. I filed the suit; my husband didn’t. Mr. Lange also said that I withdrew my $300 settlement offer before the Township could accept it. That’s not true either. The Township considered my offer on July 13, 2015 and rejected it.

Mr. Lange should have corrected the record when the mistakes were pointed out. But he didn’t. He also could have corrected the record at the following meeting on September 12, 2016. But he didn’t do that either.

Having declined to correct mistakes that were brought to his attention, it seems clear that Mr. Lange’s statements were intentionally untruthful. It’s time to set the record straight. Here’s a close review of what he said and how it’s false.

Township Attorney Peter Lange

[My document request]…was a novel request at that time. There was no authority on whether or not the farmland assessment documents, which arguably included some personal financial information, would be subject to OPRA.

That’s half true. What’s missing is the comment that the documents were subject to the common law. Very early in the case, Mr. Lange and my attorney recognized that the documents should be released under the common law. Both sides made settlement offers to release documents under the common law. There was no need to litigate over the novelty of this OPRA request.

Although the records may have “arguably” included personal financial information, the judge ruled that they didn’t.

Township Attorney Peter Lange

At the end of the day, the Clerk [Township Clerk LaShawn Barber] decided that she would invoke the exception [the exception in OPRA which prevents the release of records regarding personal financial information] and the Brooks’s instituted litigation.

That’s false.

First, I instituted litigation. My husband didn’t; and he was never a party in the case.

Second, I won’t fault Clerk Barber for considering the privacy interest of the affected property owner. I also recognized the possibility that the property owner might have a privacy interest. That’s why my attorney made him a party to the lawsuit. This enabled the property owner to defend his privacy interest.

Some people have commented that my lawsuit put the Township between a rock and a hard place, meaning that if it released the documents to me, the property owner would sue the Township. If the Township didn’t release the documents, I would sue it. This concern was addressed by making the property owner a party in the case. If he wanted to protect his privacy interest he could.

But the property owner didn’t even take the preliminary steps to defend himself. In May 2015, he told the Court that he wouldn’t participate in the case at all. From that point on there wasn’t any personal privacy interest.

Robert Brick's Blueberry Field
Robert Brick’s Blueberry Field

The Township, like the property owner, didn’t dispute any of the facts that I submitted. Yet the Township continued to litigate the owner’s “arguable” privacy interest under OPRA. That was wrong. It made the Township completely responsible for all of the risks if it lost the OPRA case, as it eventually did.

a-real-blueberry-field
A Real Blueberry Field

If the Township was willing to litigate the property owner’s privacy interest, it should’ve demanded that he indemnify the Township against the possibility that it might lose the OPRA case and have to pay my attorney fees. The minutes of the closed session meetings show that Committee members never discussed indemnification.

Township Attorney Peter Lange

I think that the Court initially indicated and felt that on the face of the language of the statute [OPRA] [the documents] such that would likely be excluded as personal financial information. Of course, the document[s] were requested in light of not only an OPRA requirement, but also in light of what’s known as the common law right to know. And so there were two different legal standards to be applied by the court. In executive session, I think the Committee struggled with exactly what decision to make….

It’s true that the documents were requested under OPRA and the common law. It’s also true that the standards of each are a little different.

But it’s false to suggest that the differences between the legal standards of OPRA and the legal standards of the common law caused the Committee to struggle over the release of the documents. I was willing to settle for production of the documents solely under the common law. And the Township was willing to produce the documents solely under the common law. The legal standard that required the production of the documents was never a problem.

The decision that the Committee struggled with was how to stop me from filing future OPRA requests.

Township Attorney Peter Lange

A settlement was offered by the Brooks’s which involved the payment of their $300 filing fee and the release of the documents….Unfortunately, before that offer of settlement could be accepted, and actually prior to its acceptance, that offer was withdrawn and so the litigation commenced.

This is just a lie.

First, I filed the suit and I offered the settlement. As I said before, my husband wasn’t in the case.

Second, all of the documents – the official minutes of the closed session meetings, the emails between the attorneys and Mr. Lange’s invoices to the Township – show that the Committee considered my settlement offer and rejected it.

The Township’s Official Closed Session Minutes

The following excerpts from the July 13, 2015 official minutes show how the Township considered and rejected my $300 offer.

Mr. Lange indicated that the Attorney for the Plaintiff (Mr. Laures) wants to make an offer for the township to release the documents, pay the $300 filing fee under Common Law and not under OPRA.

Members of the Township Committee spoke of not in favor of settling or paying the filing fee of $300.00 for the feeling that Fran Brooks can make such demands of the Township Clerk under OPRA in the future for other personal financial information in farmland properties.

Mr. Lange will reach out to the Plaintiff’s Attorney to advise that a majority decision of the Township Committee to accept the settlement cannot be achieved unless it includes such OPRA demands in the future for other farmland properties.

Emails Between Attorneys

The Emails between my attorney Walter Luers and Peter Lange also show how my offer was made and rejected and how the Township made a counter-offer, which I rejected.

On July 9, 2015, my attorney emailed me:

I spoke with Lang and confirmed our offer: dismiss the case “with prejudice,” they produce the records under the common law right of access, and they reimburse my filing fee of $300. He said he would recommend it (see p.1).

On July 10, 2015, my attorney sent an email to Peter Lange confirming the settlement offer. It says this:

Peter, I’m writing to confirm our conversation from yesterday.

My offer to Defendants [the Township] is that in consideration for production of the unredacted documents at issue in the case to Plaintiff [Fran Brooks], and payment of $300 in costs [my court filing fees], Plaintiff will dismiss her complaint with prejudice. Disclosure shall be made solely pursuant to the common law right of access, not OPRA. Plaintiff waives attorneys fees (see p.2).

On July 16, 2015, three days after the Committee rejected the settlement offer, Mr. Lange sent an email to my attorney saying that the Committee had authorized him to make a counter-offer. Counter-offers are an automatic rejection of the prior offer (see p. 3).

Walter [my attorney, Walter Luers], After speaking with the Committee, I have been authorization (sic) to make the following counter proposal for settling the above matter:

  1. In consideration of the production of the unredacted documents at issue in the case to Plaintiff, Plaintiff will dismiss her complaint with prejudice.
  2. Disclosure shall be made solely pursuant to the common law right of access, not OPRA.
  3. Plaintiff waives attorney’s fees.
  4. Plaintiff will be precluded from demanding and/or receiving the release of or inspection of any FA 1 Forms (Farmland Assessment forms filed by individual property owners) maintained  by Tabernacle Township under OPRA.
  5. Nothing will prevent Plaintiff from making a demand for such documents under the common law and each such demands will be reviewed and responded to on a case by case basis with the Clerk determining whether or not to release the documents based on the facts supporting each such [message truncated]

Mr. Lange’s invoice confirms that I rejected the Committee’s counter-offer. His invoice for his July 2015 charges says: “9/23/2015” (obviously a typo for “7/23/2015”), “review rejection of settlement proposal; email to committee” (Invoice #4702). The timing of this charge, seven days after the Committee’s counter-offer, could only refer to my rejection of the Township’s counter-offer.

I rejected the counter-offer because it was one-sided. It required me to give up my rights on future OPRA requests. Just as the Clerk wants to retain the right to address future requests on a case-by-case basis, so do I. I was willing to settle this lawsuit, but the Committee insisted on making conditions on future OPRA requests. This was a ludicrous counter-offer.

It’s a lie to say that my settlement offer was withdrawn before the Committee had a chance to accept it. The official minutes and the attorney emails show that the Committee had the opportunity to accept my offer, but rejected it instead.

Township Attorney Peter Lange

Actually, [p]rior to its acceptance [my $300 settlement offer], that offer was withdrawn and so the litigation commenced.

This is a double lie. As I describe above, the Committee rejected my offer.

But the statement is also a lie about the timing of events. The litigation began in November 2014, long before I made my settlement offer on July 9, 2015. A substantial amount of work had already been done by the time I offered to settle. Mr. Lange’s fees were $15,647. My attorney’s fees were $11,729, including filing fees.

Both attorneys understood that if the case was settled in July, there would be no need to do the work scheduled in August, and everyone would be spared additional costs.

Here’s what my attorney’s July 10, 2015 Email to Mr. Lange said. It shows the proceedings scheduled for August (see p.2).

Peter,

Regarding Proceedings, Defendants’ [Township’s] supplemental brief must be served and filed on August 7, 2015. Please fax or email the papers to me on the seventh so I can turn the response around quickly.

Plaintiff’s [Brooks] reply to Defendants’ supplemental papers shall be served and filed on August 12, 2015.

Oral Argument is Monday, August 24 at 2 p.m.

Because the Township didn’t settle the case in July 2015, substantial, additional legal fees were incurred.

In January 2016, perhaps because Mr. Lange was beginning to see the weaknesses of the OPRA case, and recognized that the Township might lose on OPRA and have to pay substantial – and growing – legal fees, he wanted the Committee to reconsider my July 2015, $300 settlement offer.

The January 4, 2016 closed session minutes say:

Mr. Lange wanted to revisit the $300 settlement filing fee offer….Mr. Lange suggested that the risks associated with the attorney’s fees issue under the prevailing party document were significant.

The January 25, 2016 closed session minutes say that Mr. Lange:

strongly recommended accepting the settlement offer indicating that the township should not risk having to pay substantial attorney’s fees in such a matter. Mr. Lange reminded the committee that he has always recommended settling this matter in view of the fee shifting included in the statute.

Mr. Lange should have strongly recommended settlement in July 2015, when I made the $300 offer and the legal costs were lower. The official minutes of the July 2015 closed session meetings don’t mention any settlement recommendation.

It’s shocking that, seven months after the Township rejected my settlement offer and seven months after I rejected the Township’s counter-offer, Mr. Lange would suggest to the Committee that my $300 offer was still on the table in February 2016, waiting for the Committee to accept it.

This was a false and preposterous idea. My $300 offer ceased to exist when it was rejected. The Township’s counter-offer ceased to exist when I rejected it. There was nothing left for me to withdraw.

Besides, Committee members couldn’t reasonably expect my attorney to now waive his fees for the work done from November 2014 through February 2016. The offer to waive over $11,000 in fees from November 2014 to July 2015 was very generous. But the Township can’t expect people to work for free. Non-payment for work isn’t an issue for Mr. Lange because the Township automatically pays his bills.

In the February 9, 2016 minutes, Mr. Lange rolled out the idea that the offer had suddenly been withdrawn. The minutes say:

Since the last executive session meeting (February 9, 2016), Mr. Lange reported that Ms. Brooks withdrew her settlement offer and we are now going to final hearing in the matter.

This is an extraordinary lie to cover up extraordinarily bad decision making. Ultimately, my case was decided in June 2016. The Township lost under both OPRA and the common law. It was ordered to pay my legal fees.

Other Thoughts

1. One other revealing part of the January 25, 2016 closed session minutes is Committeewoman Brown’s response to Mr. Lange’s settlement recommendation. The minutes report, “Committeewoman Brown said she personally cannot support releasing the document morally.”

This is a troubling comment in many ways. It’s troubling legally because there was a general understanding that the common law required the documents to be released. My offer and the Township’s counter-offer both recognized that the documents could be released under the common law. Committeewoman Brown, like all Committee members, swore an oath of office to obey the laws of the state.

It’s also irrational for Committeewoman Brown to place such high importance on her personal feelings when the documents had such little meaning to the property owner who submitted them. He dropped out of the case without any participation at all.

But it’s the moralizing that’s so offensive. Over a 10-year period, Committeewoman Brown voted to give herself Tabernacle Township health benefits so that she could collect almost $29,000 in lieu of the health benefits that she earned as an employee of the Tabernacle School District. She had no moral concerns about this double dipping.

2. The Legislature established fee shifting in OPRA because it recognized that citizens don’t have the resources to go to court to get documents that are wrongly withheld by public agencies. Our Committee often bashes the fee-shifting OPRA provision. Committeeman Franzen, in particular, has commented that he viewed OPRA’s fee shifting provision to be like “ambulance chasing.”

If any attorney seems to have chased an ambulance to benefit from a lawsuit it’s Mr. Lange. At the time of the settlement offer, he had been paid over $15,600 for his legal work. In contrast, my attorney offered to waive all of his fees, over $11,000, if the Township would pay the Court’s $300 filing fee.

The Township’s decision to reject my settlement offer was wrong in every way. The $300 court filing fee was an actual out-of-pocket expense that I incurred because the Township Clerk wrongly refused to give me documents that I asked for under OPRA and the common law. There was little doubt that the documents had to be produced under the common law.

Because Mr. Lange charges $155 an hour, the settlement would have paid for itself almost immediately. Instead the Township lost both the OPRA claim and the common law claim. Now Tabernacle taxpayers have to pay the entire bill. As of this Post, the bill is over $44,000.