"An issue that is not briefed is deemed waived upon appeal."
How later courts described this case
- "An issue that is not briefed is deemed waived upon appeal."
Written by the judges who cited it.
The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3716-20
MICHAEL SHURIN,
Plaintiff-Appellant,
v.
BOARD OF EDUCATION
OF HUDSON COUNTY
SCHOOLS OF TECHNOLOGY,
and JOSEPH M. MUNIZ in his
official capacity as Board
Secretary and Records
Custodian of Hudson County
Schools of Technology,
Defendants-Respondents.
___________________________
Argued August 30, 2022 – Decided September 26, 2022
Before Judges Haas and Gooden Brown.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-1328-21.
Walter M. Luers argued the cause for appellant (Cohn
Lifland Pearlman Herrmann & Knopf LLP, attorneys;
Walter M. Luers, on the briefs).
Jorge R. De Armas argued the cause for respondents
(Scarinci Hollenbeck, LLC, attorneys; Robert E. Levy,
of counsel and on the brief; Jorge R. De Armas, on the
brief).
PER CURIAM
Plaintiff Michael Shurin appeals from the July 9, 2021 Law Division order
dismissing his verified complaint and denying his order to show cause in which
he sought an order compelling defendants, Board of Education of Hudson
County Schools of Technology (Board) and Board Secretary Joseph Muniz, to
produce an employee settlement agreement pursuant to the Open Public Records
Act (OPRA), N.J.S.A. 47:1A-1 to -13.1 We affirm.
We glean these facts from the record. On February 27, 2020, the Board
adopted a resolution reinstating Graciela Rubet, who had been suspended after
a workplace incident led to criminal charges being filed against her. Ultimately,
the municipal court dismissed the charges on the prosecutor's recommendation.
Subsequently, Rubet presented "a pre-suit litigation demand" to the Board,
alleging she was wrongfully suspended. Following consultation with its insurer,
on July 16, 2020, the Board adopted a resolution approving a $115,000
1
The verified complaint also included a count based on the common law right
of access, which was addressed by the trial court but abandoned on appeal. See
N.J. Dep't of Envtl. Prot. v. Alloway Tp., 438 N.J. Super. 501, 505 n.2 (App.
Div. 2015) ("An issue that is not briefed is deemed waived upon appeal.").
A-3716-20
2
settlement payment to Rubet in exchange for a general release of the Hudson
County Schools of Technology (HCST) and all its employees from all claims
related to the suspension. The resolution provided that the settlement amount
was funded by three sources: $65,000 from the insurer; $15,000 from HCST;
and the remaining $35,000 from an unnamed "source." The resolution identified
the unnamed "source" as a "HCST employee" who would "sign a payment
agreement and general release to be formalized by the employee, Superintendent
and HCST General Counsel."
On February 10, 2021, Shurin, an independent journalist, submitted an
OPRA request to Muniz seeking: (1) a copy of Rubet's notice of tort claim; (2)
certain email communications regarding a published story about Rubet; and (3)
a copy of the "payment agreement and general release" between the unnamed
employee and HCST in connection with the $35,000 payment to Rubet. In
response, HCST provided copies of the requested emails but informed Shurin
there was no tort claims notice. Additionally, HCST denied Shurin's request for
the payment agreement with the unnamed employee, citing N.J.S.A. 47:1A-1.1,
defining government records; N.J.S.A. 47:1A-10, limiting access to government
personnel records; and this court's decision in Libertarians for Transparent
Government v. Cumberland County (Libertarians I), 465 N.J. Super. 11, 13
A-3716-20
3
(App. Div. 2020), rev'd 250 N.J. 46 (2022), which held that "a settlement
agreement resolving an internal disciplinary action against a public employee is
not classified as a government record under OPRA." Defendants later provided
Shurin with a copy of Rubet's settlement agreement and general release, which
made no mention of the payment agreement with the unnamed employee.
In April 2021, Shurin filed a verified complaint and an order to show
cause, seeking access to the payment agreement with the unnamed employee.
In an opposing certification, Muniz averred that the unnamed employee was the
subject of an "internal disciplinary investigation" which began in February 2020.
The investigation uncovered "a commonality of fact as between at least a portion
of the allegations underlying [Rubet's] pre-suit claim and the conduct for which
the [unnamed employee] was being investigated." After determining the
unnamed employee's conduct warranted disciplinary action, "HCST and the
[e]mployee entered into an internal '[s]ettlement [a]greement,'" wherein the
employee forfeited "accumulated benefit time . . . valued at $35,000[]" to satisfy
"the monetary component" of the disciplinary action. However, "[Rubet] was
not a party to the agreement between . . . HCST and the [unnamed e]mployee,
and the [unnamed e]mployee was not a party to the agreement between . . . HCST
and [Rubet]." According to Muniz, "[n]o funds were actually exchanged in
A-3716-20
4
satisfaction of th[e] $35,000[]" and no agreement was ever reached between
Rubet and the unnamed employee. Instead, Muniz asserted that the $35,000
"monetary component" of the disciplinary action was HCST's attempt to
"recoup" some of the funds it paid to Rubet. Muniz stressed the record sought
was "an internal employee personnel matter" that "was never the subject of a
civil lawsuit" and was not "part of a global resolution" of Rubet's "pre-suit claim
for damages."
Following oral argument on the order to show cause, the trial judge denied
Shurin's request and dismissed the complaint. Relying on this court's decision
in Libertarians I, 465 N.J. Super. at 21, the judge found that the payment
agreement with the unnamed employee was "in fact a personnel record which
involve[d] internal employee discipline and investigation into misconduct."
Therefore, the judge concluded the record was "exempt from disclosure" under
OPRA, pursuant to N.J.S.A. 47:1A-10. The judge reasoned that "some
employees agree to settle disciplinary charges, at least in part, to avoid public
disclosure of the charges."
In this ensuing appeal, Shurin argues that the internal settlement
agreement with the unnamed employee was not merely a personnel record but
rather "part of a global resolution" of Rubet's "pre-suit claim for damages."
A-3716-20
5
According to Shurin, because the unnamed employee was both a beneficiary of
Rubet's settlement agreement by virtue of its general release of all claims against
all of defendants' employees, including the unnamed employee, as well as a
contributor to the funds comprising Rubet's settlement, the internal settlement
agreement "cannot be fairly said to be a resolution of a personnel matter."
Inasmuch as the public has the right to access government settlement agreements
that resolve civil litigation under OPRA, see Asbury Park Press v. Cnty. of
Monmouth, 406 N.J. Super. 1, 9 (App. Div. 2009), Shurin maintains he is
entitled to access the unnamed employee's internal settlement agreement
because it "resolved potential litigation."
"[D]eterminations about the applicability of OPRA and its exemptions are
legal conclusions, and are therefore subject to de novo review." In re N.J.
Firemen's Ass'n Obligation, 230 N.J. 258, 273-74 (2017) (citations omitted).
"OPRA's purpose is 'to maximize public knowledge about public affairs in order
to ensure an informed citizenry and to minimize the evils inherent in a secluded
process.'" Mason v. City of Hoboken, 196 N.J. 51, 64 (2008) (quoting Asbury
Park Press v. Ocean Cnty. Prosecutor's Off., 374 N.J. Super. 312, 329 (Law Div.
2004)).
To that end, OPRA declares that:
A-3716-20
6
government records shall be readily accessible for
inspection, copying, or examination by the citizens of
this State, with certain exceptions, for the protection of
the public interest, and any limitations on the right of
access accorded by [OPRA] . . . shall be construed in
favor of the public's right of access.
[N.J.S.A. 47:1A-1.]
"As further expansion of the public's right of access, OPRA places the burden
of proof on the government to show that a requested record may be withheld
under an exemption or exclusion from the disclosure requirement." Asbury Park
Press v. Cnty. of Monmouth, 406 N.J. Super. at 7 (citing N.J.S.A. 47:1A-6).
Although "[t]he statute broadly defines the term 'government record,'" it
"also calls for a careful balancing of competing interests -- the right of access to
government records versus the need to protect personal information."
Libertarians for Transparent Gov't v. Cumberland County (Libertarians II), 250
N.J. 46, 54 (2022) (citing Burnett v. Cnty. of Bergen, 198 N.J. 408, 414 (2009)).
Thus, from this broad definition of government record, OPRA provides specific
exclusions from the disclosure requirement. Pertinent to this appeal, N.J.S.A.
47:1A-10 (section 10) specifies that "the personnel or pension records of any
individual in the possession of a public agency, including but not limited to
records relating to any grievance filed by or against an individual, shall not be
A-3716-20
7
considered a government record and shall not be made available for public
access."
However, section 10 includes the following exceptions:
[1] an individual's name, title, position, salary, payroll
record, length of service, date of separation and the
reason therefor, and the amount and type of any pension
received shall be a government record;
[2] personnel or pension records of any individual shall
be accessible when required to be disclosed by another
law, when disclosure is essential to the performance of
official duties of a person duly authorized by this State
or the United States, or when authorized by an
individual in interest; and
[3] data contained in information which disclose
conformity with specific experiential, educational or
medical qualifications required for government
employment or for receipt of a public pension, but not
including any detailed medical or psychological
information, shall be a government record.
[N.J.S.A. 47:1A-10.]
Although OPRA "does not define precisely what information is covered
by the phrase 'personnel record,' . . . courts have tended to favor the protection
of employee confidentiality." McGee v. Twp. of E. Amwell, 416 N.J. Super.
602, 615 (App. Div. 2010). Nevertheless, in Asbury Park Press v. County of
Monmouth, we held that OPRA grants the public the right to access settlement
agreements that resolve civil litigation between a government agency and its
A-3716-20
8
employee. 406 N.J. Super. at 4, 9. We predicated that decision, in part, on the
public's right to access court documents. Id. at 9. We explained:
Even when neither party is a government agency,
the public has a right of access to court documents filed
in civil lawsuits. . . . [T]his court held in Verni v.
Lanzaro, 404 N.J. Super. 16 (App. Div. 2008), that the
public has a right to disclosure of a confidential
settlement entered under seal in a civil lawsuit between
private parties. It would be an odd departure from the
view expressed in Verni . . . if we were to uphold the
secrecy of a settlement in a civil lawsuit involving a
government agency.
[Asbury Park Press v. Cnty. of Monmouth, 406 N.J.
Super. at 9 (citations omitted).]
In Libertarians I, we held that the plaintiff was not entitled to access a
redacted settlement agreement that resolved a disciplinary action by allowing a
county employee to retire with reduced benefits because the document was a
personnel record that was excluded from disclosure under section 10. 465 N.J.
Super. at 14, 24. We reasoned that "[i]f the disciplinary records themselves are
exempt from disclosure under section 10, . . . an internal settlement agreement
resolving disciplinary charges, which often involves an employee accepting
discipline, [should] similarly be considered a personnel record exempt from
disclosure." Id. at 20-21.
A-3716-20
9
In reversing our decision, our Supreme Court "d[id] not rely on case law
about settlement agreements that public entities enter into to resolve a lawsuit. "
Libertarians II, 250 N.J. at 58 (citing Asbury Park Press v. Cnty. of Monmouth,
406 N.J. Super. at 9). Instead, the Court conducted an interpretive analysis of
"the plain language of section 10" and concluded that "[a] settlement agreement
that includes . . . details [about the reasons for an employee's separation from
government service] must . . . be made available to the public once it is
redacted." Ibid. The Court "recognize[d] that some requestors may be satisfied
to receive a written summary of information in response to an OPRA request.
But OPRA entitles them to press for actual government records in many
situations, which they can then inspect." Ibid.
Here, we conclude that the internal settlement agreement with the
unnamed employee is a personnel record that does not fall within section 10's
exceptions. Critically, the agreement did not resolve civil litigation or any threat
of litigation. Instead, the agreement resolved an internal disciplinary proceeding
that did not result in the unnamed employee's separation. Consequently, the
Court's holding in Libertarians II, 250 N.J. at 58, is inapplicable here. Further,
there is no evidence in the record that the settlement with Rubet was predicated
on the unnamed employee's agreement to forfeit accrued benefit time. Stated
A-3716-20
10
differently, there is no indication that the Board would not have followed its
insurer's recommendation to offer Rubet $115,000 had the unnamed employee
not acquiesced to forfeit accrued benefit time amounting to $35,000.
Additionally, neither the unnamed employee nor the internal settlement
agreement is referenced in Rubet's settlement agreement, refuting Shurin's
contention of a global resolution. At no point did Rubet and the unnamed
employee enter into any agreement giving rise to privity of contract. Therefore,
we see no basis for extending our holding in Asbury Park Press v. County of
Monmouth to encompass the internal settlement agreement of a purely
disciplinary matter at issue here.
Affirmed.
A-3716-20
11