Malverne S.D. Conceals Purpose For Special Counsel, Misses FOIL Deadlines

Since early July, the Malverne school district has been paying the Law Offices of Ingerman Smith, LLP to provide special counsel services. But what these services are and the motives for hiring the additional firm still remain a mystery to the public.

Patch was able to obtain a copy of the retainer agreement between the district and the law firm through a Freedom of Information Law, or FOIL, request fulfilled by the district clerk, but the section detailing the scope of representation was concealed using a black marker.

It does, however, reveal what the firm is charging the district - $250 per hour plus the cost of any out-of-pocket expenses including fees for filing, processing, delivery, and photocopying, as well as travel and meals. The agreement is in effect until June 30,2012, but the district has the option to terminate it sooner.

Robert Freeman, executive director of the State Department's Committee on Open Government, told Patch that although "generally speaking, contracts are public documents...a government agency may withhold information to prevent an invasion of privacy."

For instance, Freeman said, if the firm was hired to investigate an allegation of misconduct by an individual, case law says that it wouldn't be fair to disclose the person's identity and the claim that is being evaluated, because" we don't know if they did anything wrong."

Still, Freeman said the district could share this information if they wanted to. The only case where the law would prohibit them from doing so would be if the situation involved a student.

Freeman also gave his expert opinion regarding the procedure and time frame for answering FOIL requests. According to Malvernite and Board of Education Trustee Gina Genti, several FOILs that she has submitted to the district clerk have not be fulfilled, some dating back as far as late September.

"I'm very frustrated with the lack of transparency and the lack of accountability to taxpayers," Genti wrote in an email to District Clerk Lisa Ridley. "They appear to be hiding information even if it's not intentional."

Genti submitted seven FOIL requests on Sept. 28, asking for the 2008, 2009, 2010 and 2011 annual evaluations of Superintendent James Hunderfund, his resume and records pertaining to expenses reimbursed to him since 2007 and the cell phone the district provided him between 2008 and 2011. That day she also requested the Request for Proposal, or RFP, the district would have been required to put out in order to hire the special counsel mentioned above, and any documents showing appointments of special counsel the district made over the past decade and personnel to private or parochial schools during the past four.

Genti said she never received the cell phone records or documents showing the expenses reimbursed to Hunderfund that she requested.

"The RFP for Special Counsel was not available because they never did one...and the Superintendents' evaluations are not available because they never did one as required by NYS law and the Superintendents contract," Genti told Patch. (According to Board of Education Trustee and Past President Patrick Coonan, the evaluations were conducted verbally, as stated in the superintendent’s contract.)

On Oct. 26, Genti submitted seven additional FOIL requests, this time inquiring into documents pertaining to four of Coonan's relatives and money they received for providing services to the district.

"None of the requests made on 10-26-11 have been satisfied and the Board of Education is unable to tell me when they might be ready," Genti said.

Ridley was not available to comment, but Thomas McDaid, the district's business administrator, told Patch that "FOIL requests are just one of the district clerk's many duties. They require a lot of work and time for the documents to be reviewed."

However, Freeman said that an agency is required to respond within five business days of receipt of any FOIL request, and if they need more time, they must provide a proximate date, not to exceed 20 business days, when a response will be given.

"Any delay beyond five days must be reasonable," he added. After 20 days have passed and the applicant has still not received a response, their request is considered denied, Freeman explained, which means they can move on to the next step - an appeal. This appeal would go to the Board of Education or an entity designated by the board to handle appeals.

The last resort would be filing a lawsuit. "If you sue and win, the court has the authority to award you attorney fees that would be paid for by the district," Freeman said, adding that this exists as an incentive for agencies to comply with FOIL regulations.