Sergio Bichao

@sbichao

Gannett New Jersey wanted data in electronic format, not PDF.

Judge says borough owes $590,000.

RARITAN BOROUGH – Officials in this Somerset County borough say they will have to raise taxes or cut services if they are made to set aside more than a half-million dollars that the town owes to a media company that won a public-records lawsuit against the municipality.

But an attorney for Gannett New Jersey — which owns the Home News Tribune, Courier News, Daily Record and Asbury Park Press, among others — says that is a price the borough must pay for violating the state’s Open Public Records Act.

A state Superior Court judge said last month that Raritan owes the company more than $590,000 in legal fees as a result of a 2009 lawsuit that the company won in 2012.

The amount is believed to be the largest ever awarded under OPRA, which allows successful plaintiffs to seek reimbursement for legal fees from government agencies that were found to have violated the law.

The borough, however, is appealing the ruling and Judge Yolanda Ciccone, sitting in Somerville, granted a stay, which allows the borough to hold onto the money while it appeals. Ciccone, however, ordered Raritan to set aside the award as a condition for its appeal.

The borough now is contesting that order, arguing that municipalities are not required to post a bond or security for an appeal, and that setting aside an award would harm the public because the borough “will have to take the money from necessary public services or borrow the money.”

“Yet, if Raritan is successful with its appeal, the award of attorneys’ fees will have been unjustified and the payment will have been unnecessary,” attorney Mark Anderson, of the Somerville firm Woolson Sutphen Anderson, says in a motion filed with the appeals court.

“At that point, though, it will be too late to put the money back into municipal budget or reinstate whatever municipal service Raritan had to forego. This would result in harm not only to Raritan but to the health safety and welfare of its residents as well. There is no reason to deprive the residents of Raritan any municipal services pending this appeal.”

During several public meetings following the ruling on the legal fee award — which is less than what the company has paid for its legal representation — members of the Borough Council suggested that the municipality would be able to dip into its budget surplus. The borough has a budget of $10.2 million with a $1.1 million surplus.

Gannett attorney Tom Cafferty, of the Newark-based Gibbons firm, said Monday that Ciccone ordered Raritan to set aside the funds because officials have repeatedly said that they may not be able to afford it.

“And, of course, the fee amount awarded was the result of the borough’s own egregious conduct in falsely representing from the inception that the information requested did not exist and in perpetuating that falsehood throughout the years of litigation that ensued,” the company says in its answer to the court.

The New Jersey State League of Municipalities also has asked the court to file papers in support of the borough’s position.

Gannett New Jersey filed the lawsuit more than four years ago over access to employee salary and overtime information. The newspapers wanted the data in an electronic format, instead of paper or PDF, in order to compare and analyze salary information among many municipalities.

After denying existence of the records, the borough sought to pass on a $1,100 service charge to convert the data. Gannett proved during a 2012 trial that the borough had access to the records in the format requested and Ciccone ruled that the borough had unlawfully denied access to the information. The service charge eventually was waived by the borough’s third-party payroll services vendor.

Staff Writer Sergio Bichao: 908-243-6615; sbichao@MyCentral

Jersey.com