Commission finds in favor of email disclosure
By Suzanne Carlson
VERNON — The state Freedom of Information Commission upheld a proposed final decision Wednesday when it ruled the town violated public records disclosure laws when former Republican Mayor Jason L. McCoy responded to a request for town documents with a $950 bill for his services as a private lawyer.
“The town has no disagreement with the proposed finding of facts or conclusions” of hearing officer and commission member Sherman D. London, Assistant Town Attorney Martin B. Burke said.
The eight-member commission voted unanimously to affirm London’s report, which found that the town violated three sections of state law in its handling of an April 14, 2011, request by the Journal Inquirer for all emails sent to or from McCoy’s personal assistant Christopher D. Bandecchi.
McCoy, who did not seek re-election as mayor and recently dropped his campaign for U.S. Senate, hired Bandecchi in December 2010 as a personal public relations aide at $26.78 per hour. Republican Mayor George F. Apel terminated Bandecchi at the end of December because, he said, “I didn’t think that position was required.”
The FOI matter began May 3 when Assistant Town Administrator Peter Graczykowski, who no longer works for the town, said Vernon had incurred expenses from an “outside agency” and provided an invoice from McCoy’s law firm listing a $600 fee for “email retrieval” and a $350 fee for “email search and PDF for FOI.”
The Vernon mayor is an elected official, but McCoy had classified himself as an independent contractor and charged his private lawyer’s rate of $250 per hour for 3.8 hours of work.
McCoy argued the fee was proper because he was not acting as mayor at the time, and said he would not provide the documents without $950.
The Journal Inquirer filed a complaint to the commission on May 13 and at an Oct. 19 hearing, Town Attorney Harold Cummings argued that if McCoy could not charge his private legal rate, he could at least charge $11 per hour for his position as mayor.
Immediately prior to the hearing, Cummings offered to provide 117 pages of emails for a fee of $41.80. But London found that the pages represented a response to only part of the Journal Inquirer’s request, and the law prohibits municipalities and elected officials from charging any amount for time spent searching for documents.
McCoy, “failed to prove that he performed programming or formatting functions” as he had claimed, and instead “engaged in search and retrieval,” London said.
The Journal Inquirer rejected requests to withdraw the complaint, and a day before London’s decision was released on Dec. 23, Burke filed a last-minute motion to re-open the hearing, arguing that the 117 pages should be considered compliance. The commission never addressed the motion.
At Wednesday’s hearing, Burke acknowledged the town’s violations and provided electronic copies of the requested records in response to the commission’s order.
As one of the drafters of the state’s freedom-of-information law, Burke is familiar with its requirements and he has conceded that McCoy was not always in compliance while serving as mayor.
“I think he had a different view of the parameters of the Freedom of Information Act,” Burke has said.
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