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BLOOMINGDALE - Deleted e-mails are OPRA violation
(by Deborah Walsh - Staff Writer - July 30, 2008)
BLOOMINGDALE - The latest salvo fired in the feud between a recreation commissioner and councilwoman is an allegation of a violation of the Open Public Records Act (OPRA).
Recreation President and ROSE (Recreation Open Space Establishment) Advisory Board Chairman Jonathan Dunleavy claims Councilwoman Linda Huntley violated OPRA by not saving copies of e-mails pertaining to recreation.
At a May 13 Borough Council meeting, Dunleavy publicly stated that he would make an OPRA request for Huntley’s e-mails that were relevant to the operation of the borough. When Huntley reportedly did not produce the e-mails, he made a second request on June 5.
Huntley allegedly did not retain copies of all her e-mails because she reportedly electronically carbon copied the borough clerk, borough administrator or borough attorney. Dunleavy filed an OPRA complaint with the state Government Records Council. At the start of the July 22 Borough Council meeting, Huntley responded to a story on the matter that appeared in a daily newspaper.
“All of my e-mails have been provided to Mr. Dunleavy. My manner of retaining e-mails has been to cc (carbon copy) the borough clerk, the borough administrator or the borough attorney. The borough, itself, does not have set procedures for ensuring that all e-mails, which must be retained, are retained,” she said.
Huntley said sometimes e-mails kept by individuals are lost. Citing an example, Huntley claimed that not all the mayor’s e-mails are available because his computer crashed. Another member of the governing body’s e-mails have not been saved because he has had problems with his e-mail provider, she said.
“Mr. Dunleavy’s accusations of me violating borough policy and state law are false. This borough does not have procedures in place to ensure that all e-mails are retained. Contrary to his comment that the borough personnel policy manual stated that I should have saved them, there was nothing in the manual stating so,” said Huntley. “Accusations that I have deleted e-mails after receiving the OPRA request are false. I do periodically move e-mails by forwarding them to another account as I have to periodically clear e-mails out of my mailbox to make room for new e-mails. This moving of e-mails would generate a delete receipt to the sender of the e-mail if they had that option turned on when they send e-mail. These so called e-mails are included in the e-mails Mr. Dunleavy has received,” she said.
In the public portion of the July 22 council meeting, Sheldon Bross of Wood Place said Dunleavy formally requested all e-mails from Huntley, which included all “to and from” e-mails that pertained to borough business on May 18. As a follow-up, Borough Attorney Joseph MacMahon requested that Huntley provide all e-mails that pertain to borough business and he would review the e-mails to see if any could not be released because the subject matter is protected under attorney/client privilege, said Bross, who is also an attorney.
Bross claimed Huntley initiated 20 deletions. The deletions covered dates in several different months including November 2007, January, February and March.
“Is it coincidental that after 20 days you decided to clean house on June 2?" asked Bross. “Twenty days after the OPRA request and you were told you must supply them, you deleted 20 items and we don’t know what you deleted from home.”
At the public portion of the council meeting, Dorothy Tintle of Van Dam Avenue said she witnessed Dunleavy verbally attack Huntley at a council meeting.
“She wants to know how he's spending money and I think he’s trying to humiliate her,” said Tintle. "Now he’s gotten so aggravated with her, he’s going after her e-mails. I think people want to know how their money is being spent.”
MacMahon said it was unfortunate what was going on between Huntley and Dunleavy. MacMahon said that he, Borough Clerk Jane McCarthy, Borough Administrator Ted Ehrenburg and Borough Chief Financial Officer Donna Mollineaux are “stuck in the middle.”
MacMahon indicated that he had advised all members of the governing body to retain all e-mails relative to borough business more than once. MacMahon said he spent 3.5 hours reviewing Huntley’s emails to ensure that none would broach confidentiality laws. The attorney said the trend is that the information that the public has the right to under OPRA will become even more expansive rather than more restrictive.
Councilwoman Jennifer Altfield said she filed an OPRA request with Passaic County where the OPRA requests have become so onerous, the county had to hire someone solely to deal with OPRA requests.
The borough’s webmaster, Robert Kelly, attended the July 22 meeting and discussed methods of storing and saving all electronic correspondence. One of Kelly’s suggestions was to obtain an appliance known as a message archiver. The cost of the appliance is $14,000, which can be paid for over five years. The archiver can accommodate 350 users, but is expandable, he said.
Ehrenburg said the archiver might be another vehicle for the borough to provide shared services for another town. He said the borough recently completed an update of its policy manual, which now clearly states the borough’s e-mail policy. The administrator said he would like to meet with Kelly to discuss the cost of different e-mail retention options.
The toll on volunteers
Back at the May 13 council meeting, Dunleavy claimed that in Huntley’s 2.5 years on the council, she has launched more than 40 inquiries about recreation vouchers, bills, bids and purchases etc. As a council member, it is Huntley’s right to request such information, Dunleavy acknowledged. Dunleavy said he would not have a problem with the inquiries if he did not feel Huntley was singling out recreation. Dunleavy said the public works and police departments have budgets more than 10 times the size of recreation’s, yet these departments do not get the same scrutiny that recreation does by Huntley.
"You don’t scrutinize other departments like you scrutinize recreation. It takes its toll on volunteers," said Dunleavy.
Dunleavy said he gives more than 100 volunteer hours monthly to recreation. Dunleavy said Huntley’s inquiries waste his and Recreation Director Gail Galbraith’s time.
Huntley said she makes inquiries of all department’s expenditures, but when Dunleavy publicly asked Ehrenburg if recreation receives special attention from Huntley, Ehrenburg said, "She makes a complete review of all department’s bills. If something catches her eye, she’ll take a look at it, though primarily she has questions about recreation."
Huntley said she does examine recreation because there is not a lot of oversight with one person (Dunleavy) making decisions on expenditures. Other boards and commissions in the borough approve individual bills, she said.
Oversight is issue
Dunleavy disagreed that there is a lack of oversight. He said the ROSE Board meets and discusses projects and purchases and then makes its recommendation to the mayor and council. Huntley said, however, the governing body approves projects in its totality and does not approve individual purchases. The ROSE Board does not approve each and every bill. The council approves the bills, but sometimes the work has already been done, she said.
At a subsequent council meeting in June, the Borough Council rejected the idea of approving every expenditure and purchase of a couple thousand dollars prior to the purchases being made or work being done. The Borough Council did appoint a liaison to Recreation Commission and Department of Public Works (DPW).
At that meeting, Councilwoman Huntley, who asked that all non-recurring expenditures be brought to the council prior to the purchase or service being performed, initiated the discussion on the matter. She suggested that purchases or contracted services that exceed $2,500 or $3,000 should be brought to the council before the work or purchase is completed. If it is a recurring expense, the item is contained in the budget, she said.
"To have a purchase or service approved afterward is not a good control. I think it’s backwards," said Huntley, who is a certified public accountant.
Mollineaux, the borough’s chief financial officer (CFO), said a budget is a plan, but sometimes things occur, which are not part of the plan. If the borough must wait to have all expenditures approved beforehand, Mollineaux asked what the borough would do if a truck broke down and needed repair.
Councilman Dean Specchio said requiring that all purchases and expenditures be approved prior to purchases being made or work being done, undermines the borough’s professionals. The borough must trust that its professionals are doing the right thing, he said.
Too many meetings?
Mayor William Steenstra said if such a policy was enacted, he envisioned the council meeting five times a week to approve emergent types of expenditures. If the council allowed its employees to make purchases or approve work of an emergent nature prior to council approval, then it would have to be determined what is emergent, which would be a difficult task, he indicated.
Councilwoman Altfield said she thought there were enough controls in place already. Purchase requests or contracted services are brought to either the CFO or assistant treasurer, who submits the request to the borough administrator, she said.
MacMahon said in the final analysis the buck stops with the council, who approves all bills.
"The borough administrator is a full-time employee who is entrusted to manage the day-to-day operations of the borough. I hear what Councilwoman Huntley is saying. I don’t believe the borough does anything that is not permitted and not atypical of other municipalities," said MacMahon.
MacMahon said Huntley’s request to have non-emergent purchases or services over a certain amount beforehand is an option, but the current practice, which allows the borough leeway in taking action that is ratified by the council afterward, is the way most municipalities operate.
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