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Aug 29, 2016 2:53 PMPublication: The Southampton Press

Press News Group Files Lawsuit Against Southampton School District Seeking Details Of Former Superintendent's Departure

The Southampton Press has filed a lawsuit against the Southampton School District for failing to follow through with a FOIL request. GREG WEHNER
Aug 30, 2016 4:20 PM

The Southampton School District is facing a new lawsuit charging that it has failed to comply with the Freedom of Information Law—this time from the Press News Group.

The publishers of The Southampton Press, The East Hampton Press and the website 27east.com filed the lawsuit in State Supreme Court on Friday. The lawsuit seeks to compel the school district to release the results of an investigation—paid for with taxpayer dollars—of former Superintendent of Schools Dr. Scott Farina, which was conducted earlier this year and which eventually led to Dr. Farina’s resignation and a $300,000 payout as part of an agreement in April.

Interim Superintendent Dr. Nicholas Dyno declined to comment on the suit on Monday.

The Press News Group is being represented by media law attorneys Rachel F. Strom and James E. Doherty of the Manhattan-based law firm Levine Sullivan Koch & Schulz, LLP.

The memorandum of law filed this week, laying out the plaintiffs’ legal argument, notes that the information being sought “unquestionably [involve] matters of significant public concern.” It notes that the district’s “blanket refusal” to provide any information violates the Freedom of Information Law, or FOIL. “The significant public interest in such information … overwhelms any possible privacy interests here,” the Press News Group’s attorneys argue, citing case law.

The lawsuit also asks the court to award attorney fees to the plaintiffs if the court finds that the district violated FOIL. “The school district should be held to account and pay an actual price for their unlawful actions that embraced secrecy over transparency,” the lawsuit argues.

The court has the option of awarding a plaintiff attorneys fees in a case where a municipality has failed to answer a FOIL request in the requisite time, or, as The Press alleges in this case, has unreasonably refused to provide public information.

The Press filed a FOIL request in April seeking a copy of the findings of an investigation into Dr. Farina, which was conducted by the Garden City-based firm Jaspan Schlesinger LLP. The district denied the request, citing “unwarranted invasion of personal privacy” and “other” as the reasons, although the line next to “other” to explain what that meant was left blank.

The Press then appealed the district’s denial, and the appeal was also rejected by the district. In the denial, Dr. Dyno wrote that such a disclosure “would constitute an unwarranted invasion of personal privacy,” the same reason given for the initial denial.

The only option left to attempt to compel the district to release the information was the filing of an Article 78 lawsuit, which generally seeks to overturn a decision made by an administrative agency rather than seeking monetary damages.

“We are disappointed to have to take this step, but it’s our only recourse through FOIL when the district will not provide information that we strongly believe should be made public,” Joseph P. Louchheim, owner and publisher of the Press News Group, said on Friday. “It’s a step we are taking on behalf of district residents—public access isn’t just about the newspaper having the information, but everyone in the district.

“Taxpayers have a right to know what’s being done with tax money, and that includes the performance of officials who are paid with it,” he added.

Dr. Farina resigned from his position in April, nearly two months after the Board of Education hired Jaspan Schlesinger LLP to investigate unspecified allegations made against the superintendent.

When the board accepted Dr. Farina’s resignation, former School Board President Heather McCallion read from a prepared statement that the move was a direct result of the investigation. Ms. McCallion would not go into details about what investigators found, citing that information to be “confidential and not subject to public disclosure.”

Both sides agreed to a confidentiality agreement as part of the settlement.

As part of his agreement with the school district, Dr. Farina received one year’s salary of $234,000 and was paid $1,170 for each unused vacation and sick day. He had eight unused vacation days and 47 unused sick days, totaling $64,350, meaning that he parted ways with the district with a total of $298,350. The district has refused to provide information about how the settlement was reached.

“The public paid for the investigation, paid Dr. Farina’s salary and paid nearly $300,000 in severance,” Mr. Louchheim said. “It seems ridiculous to suggest that the taxpayers are the only ones who should be kept in the dark about why he left.”

Robert Freeman, executive director for the State Committee on Open Government, said the school district was wrong in refusing to disclose the findings of the investigation to The Press. Unlike students, who are protected under the Family Educational Rights and Privacy Act, where employees are concerned, “the courts have pretty much said [they] have less privacy than anyone else,” he said at the time.

Mr. Freeman said it is the law that determines what is confidential and what is not and that any private confidentiality agreement between the district and an employee is irrelevant, although federal statutes like those protecting personal medical records would pertain.

State Assemblyman Fred W. Thiele Jr. is currently working on a bill that would make such confidentiality agreements null and void. Mr. Thiele said the bill would address confidentiality agreements in places where state or local tax dollars are expended.

“If taxpayer money is being expended for severance or a payoff, I think the public has the right to know,” he said on Friday.

Mr. Thiele said he will be working on the bill throughout the fall, and that he has been consulting with Mr. Freeman to make sure he gets the legislation drafted correctly.

This is the second lawsuit filed against the district in a month that has to do with the release of information. On August 3, Reclaim New York, a nonprofit organization that focuses on municipal accountability, filed a lawsuit against the Southampton School District, saying it had failed to provide an electronic copy of its spending records for the 2014 fiscal year.

While it was not alone in its failure to provide the records, Southampton, along with two townships, was singled out by the organization for legal action primarily because of the manner in which it refused to provide the information.

Municipal agencies like the Southampton School District typically do not count on being taken to court for FOIL violations because the costs affiliated with the cases can be expensive.

A case involving the Southampton Town Trustees and their failure to respond to a FOIL request from The South Shore Press in 2010 was finally decided this year in State Supreme Court, after the newspaper appealed an earlier decision that granted it the information it sought—but which did not award legal fees.

But on February 17 of this year, an appellate court unanimously overturned the lower court’s decision, saying the town must pay the plaintiffs’ legal fees associated with the case.

“The award of attorney’s fees is intended to create a clear deterrent to unreasonable delays and denials of access [and thereby] encourage every unit of government to make a good-faith effort to comply with the requirements of FOIL,” the decision reads.

It was a ruling that could become the new normal for FOIL request lawsuits. Governor Andrew Cuomo’s executive budget proposal this year included a proposal suggested by the Committee on Open Government to tighten FOIL restrictions. Currently, the court has the option of awarding a plaintiff attorney’s fees. The new wording would mandate the award of attorney fees in cases where the agency does not respond in the required amount of time or has unreasonably refused to provide public information.

Members of the Southampton Association, a Southampton Village-based civic group, have agreed to split the attorneys fees associated with the lawsuit with The Press, citing a need for more openness by district officials.

“Many residents in the village don’t feel there’s transparency in the district,” said Jay Diesing, president of the association. “I think there is a level of information that they clearly can give that would probably satisfy community awareness needs and still protect the individuals.

“I think they just dig their heels in … that’s not fair to the community,” he added.

The federal Freedom of Information Act was established in 1967, giving the public the right to request access to records from any federal agency, according to foia.gov. Under the law, government agencies are required to provide the information requested, unless it falls under one of nine exemptions, mostly involving personal privacy, national security and law enforcement. New York State’s Freedom of Information law is patterned after the federal measure. Any municipal or government agency can be subject to FOIL requests.

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This comment has been removed because it is a duplicate, off-topic or contains inappropriate content.
By Vikki K (490), Southampton on Aug 29, 16 6:18 PM
This is our board, spending our money to fight this. Not wanting to admit their mistakes. Sounds like congress...
By knitter (1725), Southampton on Aug 29, 16 6:25 PM
The First Amendment and our various Sunshine Laws mean nothing if the press doesn't fight to make them respected and upheld. Good for You! I hope you get reimbursed. If not, the entire east end community should have fundraiser in your honor. We should have a party in your honor anyway. After Tumbleweed Tuesday!!! Thank you all for your persistence on our behalf.
By baywoman (163), southampton on Aug 29, 16 8:02 PM
2 members liked this comment
Why not find out what the board keeps putting administrators on the bench at full salary. It goes back many years.
By Gene10x (26), Southampton on Aug 29, 16 11:35 PM
This is fantastic. the culprit here is the attorney who is shared by every school district out here. He has NO idea he works for the taxpayers. You had completely incompetent board members who would fall for a smooth talking surfer dude and we have litigation.
By even flow (842), East Hampton on Aug 30, 16 4:53 AM
In point of fact, the Board Attorney does NOT work for the taxpayers, but is hired by and works for the Board -- look it up!

Any doubts? Is the position ever anywhere on the ballot? That should tell you something.

The taxpayers have only two recourses: to do what The Press has done, and sue their Board, or the Ballot! Incrementally vote to replace the Board members.

Sick and tired or hearing people blather about things they haven't any idea of, like "we the taxpayers."

You ...more
By Frank Wheeler (1814), Northampton on Aug 30, 16 3:49 PM
2 members liked this comment
the people I voted for didn't win genius, but you didn't think of that. Don't sell yourself short. It's a PUBLIC education paid for by the public..just like that unethical lawyer. He works for the taxpayers just like that board is supposed to.

I'm sick and tired of apologists for unethical, incompetent morons who wast my hard earned tax dollars giving it to the likes of farina then to an attorney to protect said unethical and incompetent decisions.
By even flow (842), East Hampton on Aug 31, 16 6:14 AM
The school board has "Jumped the Shark". Nothing they do seems plausible. From attempting to buy $8m office buildings to keeping administrators on salary and hiring a replacement for that person.

This is our money, you A**h*les. We give it to you to educate our children. When I hear that the Scool Board is negotiating with the Village Ambulance Corps the cost of teaching CPR to the kids because "It's not in the budget" and then give Farina a 300k golden parachute it makes me sick. The ...more
By Draggerman (908), Southampton on Aug 30, 16 7:13 AM
The district should reimburse the press for their expenses, and take that .oney from the idiot whi made the decision.
By chief1 (2726), southampton on Aug 30, 16 11:15 AM
Thank you to The Press News Group, for holding these people accountable.
By Arnold Timer (324), Sag Harbor on Aug 30, 16 11:46 AM
1 member liked this comment
As a proud elementary school educator with 33 years of experience of loving my wonderful students and correspondingly becoming hotly frustrated with the gutless "administrators" who irrationally think of themselves as CEO's and hot shot business GIANTS when in point of they are in actuality unsuitable to educate anyone. Lots of high educational degrees but no common sense. They are mainly, (in my long experience) failure faces who got pushed upstairs where they are out of sight and cannot harm the ...more
By BILLM (9), SOUTHAMPTON on Aug 30, 16 12:18 PM
1 member liked this comment
OK, I know you might have a bridge to sell me.... but what if what Farina did was only enough, on one hand, for the board to convince him to resign (mainly because of the optics of the event), but on the other, did not rise to a level where he would be in breach of his employment contract? What if a critical aspect of his agreement to immediately leave the district, an agreement that would be legally binding on both sides, was a stipulation of no wrongdoing by one or both sides (a common end result ...more
By Rickenbacker (256), Southampton on Aug 30, 16 4:53 PM
Always fascinating to see what narrative the voices in people's heads create. That is some long and intricate "what if" based on zilch
By even flow (842), East Hampton on Aug 31, 16 6:05 AM
Not at all. Read the article. The seeds of what I commented on are reported in this article. I'm open to being convinced otherwise but for now I think this lawsuit is pretty weak.
By Rickenbacker (256), Southampton on Aug 31, 16 7:13 AM
It might help to read the documents related to the lawsuit, which outline the legal argument in more specificity. We don't know what the information is that we're seeking, or if there's even anything in the report that's relevant. But the bottom line is: a school district is a public institution, spending public money. It's not Goldman Sachs or Apple for that very reason. And FOIL makes it clear that ALL records are public, unless they meet very specific exceptions. We have said, from the beginning, ...more
By Joseph Shaw, Executive Editor (201), Hampton Bays on Sep 1, 16 12:42 PM
1 member liked this comment
That's all very nice, and as I said, maybe there is something to gain from it. While your effort seems noble (I've had frustrating experiences with local government denying FOIL requests for something that should have been publicly available - looking at you, Sag Harbor), I have been more troubled by the Press' inability to analyze what might very well be a legitimate reason for denying you the FOIL information you requested. I also note your surprising emphasis on getting your attorney's fees ...more
By Rickenbacker (256), Southampton on Sep 1, 16 2:49 PM
The problem is, when you go to court, it's a 50-50 shot going in. No matter how right you may think you are, the court's job is to give equal weight and consider both sides' arguments. In the process, both sides will be knocked down a peg or two by the other, and the judge will have to decide on what legitimately remains. I suspect you won't be publishing any of the other side's defending arguments in your newspapers. So, I just hope you think you had at least an 85% chance of winning going in, ...more
By Rickenbacker (256), Southampton on Sep 1, 16 2:50 PM
Your fiction has now evolved to accusatory lecturing. You are entitled to your opinion, but it's pretty obvious you have a chip on your shoulder.

There is no such thing as a legitimate reason for a taxpayer supported institution to deny a FOIL request by a taxpayer. That's just not how things works in this country. You get a receipt for everything you pay for. The taxpayers never got a receipt for what they paid for and deserve at least that - especially for a $300,000 purchase.
By even flow (842), East Hampton on Sep 1, 16 6:36 PM
"There is no such thing as a legitimate reason for a taxpayer supported institution to deny a FOIL request by a taxpayer"... a very naive and factually incorrect statement. Actually, there are a host of potential legitimate exemptions to disclosure, and one of which was ticked off in the denial paperwork. Whether their legitimate denials were actually legitimate reasons could be debated, but not the fact that public agencies have some leeway on this, narrow as it is. No fiction or lecturing, just ...more
By Rickenbacker (256), Southampton on Sep 2, 16 11:16 AM
I will never understand people like you. Arguing for your ability to get worked over, lied to and ripped off. I repeat. There is no such thing as a legit reason for a taxpayer funded institution to deny a foil request. I don't care what attorneys say.
Sep 3, 16 6:15 AM appended by even flow
Legal=/= legit
By even flow (842), East Hampton on Sep 3, 16 6:15 AM
Tax payers have a right to know how their money is spent. The BOE hired an outside lawyer even though they have a lawyer who is included in their yearly budget. The BOE has no real incentive to be careful with our tax money if we are unable to determine how they are spending it. They are accountable. The Press as well as the tax payers in the district have every right to the facts. Then if tthe BOE members' actions are not in keeping with their mission to be responsible to the taxpayers, they ...more
By localcitizen (102), Southampton on Aug 30, 16 6:15 PM
1 member liked this comment
WE, THE TAXPAYERS, have a right to know where OUR money is going. Thanks Joe
By Lets go mets (359), Southampton on Aug 30, 16 7:34 PM
1 member liked this comment
Just read Rickenbacker's comment. He/She Should run for political office.
By Lets go mets (359), Southampton on Aug 30, 16 7:37 PM
Wow...its Patton Place all over again...
By pstevens (406), Wilmington on Sep 1, 16 3:28 PM
It is possible that a false accusation was made against Farina, he didn't violate his contract, maybe he had grounds to sue, but took the payoff to go quietly and no further grief for himself.
Of course, the details, whatever they may be, should be public knowledge.
And speaking of bad optics, can anybody verify that Farina did not have a home, but lived on a sailboat in Sag Harbor? And when it was too cold or rough he camped out at the district offices? (which was most of the year)
Something ...more
By smacw (239), New York on Sep 1, 16 10:38 PM
1 member liked this comment
Farina has a track record of leaving under under a dual gag order with a large chunk of taxpayer funds. He left the Garnett Pennsylvania and East Hampton districts in exactly the same way. In each case he had a history of promotions and positive PR only to abruptly be asked to leave with a confidential payment of taxpayer funds under a cloud of secrecy.

It is up to SH Press to stop this pattern. Something is taking place under his administrations that is causing board to ask him to leave ...more
By even flow (842), East Hampton on Sep 2, 16 6:16 AM
2 members liked this comment
How could someone with his credentials be hired in the first place. Garrnett, East Hampton and Southampton??? What a track record.
Guess no one was watching the ship...
By knitter (1725), Southampton on Sep 6, 16 11:05 AM
"Southampton School District, in partnership with our diverse community, will educate students in a safe, supportive environment and equip them with the knowledge, values and skills to become responsible citizens in a dynamic global society."

After the pledge of allegiance...the school Board, Admins, teachers, and staff should recite their mission statement...daily.
By foodwhiner (145), Southampton on Sep 8, 16 9:36 AM
How come my comments were deemed inappropriate?
By Vikki K (490), Southampton on Sep 8, 16 12:12 PM
8k run & 3 mile walk, Agawam Park, Southampton Rotary Club fundraiser