Press-Republican

August 31, 2013

City School denies FOIL request

By ASHLEIGH LIVINGSTON
Press-Republican

---- — PLATTSBURGH — The Plattsburgh City School District has denied public access to a letter from its attorney on unilateral benefit changes.

The April 25 letter, which is from the Albany-based law firm Girvin & Ferlazzo P.C., was requested by School Board member Fred Wachtmeister following some debate at board meetings about whether the district could switch its employees’ health-care coverage from Plan A to Plan B without negotiations.

While Wachtmeister has insisted that such a change must be negotiated with the school’s collective-bargaining groups, Plattsburgh resident Walter Chmura says he believes the contracts do allow for a unilateral switch.

DENIAL APPEALED

According to City School Superintendent James “Jake” Short, the contracts for both the Plattsburgh Teachers Association and Plattsburgh Civil Service Employees Association state that the health-insurance plan must be at least the equivalent of the Blue-Cross/Blue Shield Statewide Plan.

“This brings the question forward if the School Board can or has interest in unilaterally switching plan options absent contract negotiations,” Short told the Press-Republican in May.

On June 20, Chmura submitted a request for the attorney’s letter through the Freedom of Information Law. That request was subsequently denied by the District Office on the grounds of attorney/client privilege.

He appealed the decision, and the board was scheduled to vote on the request at last week’s public meeting.

TAXPAYERS ARE ‘CLIENTS’

“I can only hope that there’s some appreciation for the fact that I and other taxpayers out there are clients and that you are representatives (and are) not to deny us information that’s valuable in making major decisions like switching the health-care plan from Plan A to Plan B, which is a million-and-a-half-dollar savings that’s been postponed for almost seven years,” Chmura told the board during the first public-comment portion of the meeting, before any action was taken.

He also thanked the board for taking action on his request in public session.

“Obviously, it’s been discussed before in executive session, which I don’t believe was appropriate for Open Meetings Law,” Chmura said.

Wachtmeister, fellow board member Robert Hall, Board President Leisa Boise and Vice President Tracy Rotz voted to deny the request, while board member Ron Marino voted to grant it.

The motion, however, did not carry because only a quorum was present for the vote, meaning the motion could have passed only with a unanimous decision. Members Amelia Goerlitz, Steve Krieg, Clayton Morris and Dr. David Stone were absent.

The board is expected to vote on the matter again at its next meeting, on Thursday, Sept. 12.

LEGAL TO WITHHOLD

Before the vote was taken at last week’s meeting, however, Marino stated that he felt denying Chmura’s request was wrong.

“I don’t believe that there’s a client/attorney privilege with Mr. Girvin’s letter.

“This board represents the taxpayers, the residents of this school district,” he said. “They are the clients.”

Wachtmeister told him the notion of taxpayers as clients “sounds nice, but it’s ludicrous.”

“It’s the Board of Education that is the client. It’s not individual taxpayers or a group of taxpayers that are hiring an attorney, requesting an opinion.

“It’s a nice thought by those who are trying to get a wedge issue to have the letter made public, but these kinds of letters sometimes contain advice as to how to approach negotiations, and that should not be made public.”

He added that he stood by his previous statement that changes to health insurance have to be negotiated.

“At the very least, the issue would be one in which, if the district were to act unilaterally, the matter would be subject to litigation and all three of the employee bargaining groups would join together and further a lawsuit against the district, which would take some time to resolve (and) would require the expenditure of district funds to defend in the lawsuit,” he said.

The Press-Republican contacted the New York State Committee on Open Government to seek an opinion. Assistant Director Camille Jobin-Davis said that, given the circumstances, she believes the letter is subject to attorney/client privilege, which only the School Board can waive.

Were the board, however, to describe what opinions were expressed in the letter during a public meeting, she said, that would constitute waiving its privilege.

‘ENTANGLEMENTS’

After the meeting, Short told the Press-Republican in an email that when the issue was discussed publicly last spring, a representative from the Teachers’ Association indicated the group would argue the equivalency of Plan B to the Statewide Plan if a unilateral switch were to be made.

“Even though, on the surface, the board can make a unilateral change to Teachers (Association) and CSEA, it does not mean that the change would not be met with other entanglements,” Short said.

“Last spring, the board stated they preferred to approach health insurance or any other employee benefit changes through collective bargaining.”

‘SECRETIVE’

Wachtmeister noted at the meeting that people have the option of bringing Article 78 proceedings against the district in an effort to force a unilateral switch to be made.

“Let’s see (what) those people who have been so vocal and vociferous in saying what we can do, even though they are not attorneys, are willing to do to back up what they say,” he said. “My guess is they won’t.”

Marino then spoke up again, saying that by denying Chmura’s request, “we’re doing what this board does best — be secretive about things ... the biggest thing I heard when I was walking around and talking to people (while running for School Board) is that this board is secretive.

“There’s a letter that was answered by an attorney at the request of the board and has the answers, and this board refuses to surrender it.

“And there isn’t anything personal about it,” Marino said of the letter. “There aren’t any names in it.

“It’s just another way of hiding things from people.”

‘IGNORANT PEOPLE’

There is no secrecy when it comes to the School Board, Wachtmeister responded.

“We make decisions right here, and nothing is done behind anyone’s back that is required to be done in the public ... if people tell you everything is done in secrecy, they are ignorant people, and I have no problem saying that,” he said.

Email Ashleigh Livingston:alivingston@pressrepublican.com