SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2809-15T4

HARRY B. SCHEELER, JR.,

Appellant,

v. 

GALLOWAY TOWNSHIP,

Respondent.

_________________________

Submitted September 6, 2017 – Decided

Before Judges Rothstadt and Vernoia.

On appeal from the New Jersey Government 

Records Council, Complaint Nos. 2015-1 and 

2015-22.

Pashman Stein Walder Hayden, PC, attorneys for 

appellant Harry B. Scheeler, Jr. (CJ Griffin,

of counsel and on the briefs; Michael J. 

Zoller, on the briefs).

Fitzgerald & McGroarty, PA, attorneys for 

respondent Galloway Township (Michael J. 

Fitzgerald, of counsel and on the brief).

Christopher S. Porrino, Attorney General,

attorney for the Government Records Council 

(Debra A. Allen, Deputy Attorney General, on 

the statement in lieu of brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.

November 15, 2017
2 A-2809-15T4

Complainant Harry B. Scheeler, Jr., appeals from a final 

decision of the Government Records Council (GRC or Council) 

dismissing two complaints alleging defendant Galloway Township 

(Galloway or Township) denied access to a purported settlement 

agreement in violation of the Open Public Records Act (OPRA),

N.J.S.A. 47:1A- to -13. We reverse and remand for further 

proceedings.

I.

The record shows that Galloway and its mayor were sued in 

2013 by former Township manager, Steven J. Bonanni, Sr. Galloway 

and its mayor were represented in the litigation by an attorney 

assigned by the Township's insurance carrier. There were efforts 

to resolve the litigation in mediation, and in October 2014

Bonanni's attorney advised Galloway's defense counsel that Bonanni 

would settle if Galloway approved the settlement by October 28,

2014, and payment of the settlement proceeds was made within ten

days thereafter. On October 28, 2014, Galloway requested that its 

town solicitor prepare a resolution approving the settlement of 

the Bonanni litigation. 

On November 4, 2014, prior to Galloway's adoption of a 

resolution approving the settlement, Bonanni signed a document 

entitled "RELEASE AND SETTLEMENT AGREEMENT" (Release). In the 

document, Bonanni released Galloway from all claims he may have 
3 A-2809-15T4

against it. The Release did not require or permit execution by 

Galloway's mayor or anyone else on Galloway's behalf. 

That same day, Galloway's township solicitor responded to an 

inquiry concerning the status of the Bonanni settlement. In an 

email, the solicitor confirmed he had been authorized to prepare 

a resolution based on a recommendation to settle the Bonanni 

litigation, but that "no settlement agreement [had been] drafted 

yet, let alone approved."

On November 12, 2014, Galloway's governing body adopted a 

resolution in public session authorizing the settlement of the 

Bonanni litigation. In pertinent part, the resolution made 

Galloway's agreement to settle "subject to and conditioned upon 

the execution and delivery of a general Settlement Agreement and 

Release . . . resolving the litigation in full and complete 

satisfaction of all issues set forth in the litigation." The 

resolution further conditioned the settlement on Galloway's 

defense counsel's "review and approval" of the "Settlement 

Agreement and Release." The resolution required execution of a 

settlement agreement by Galloway's mayor, and attestation of the 

mayor's signature by Galloway's acting township clerk, who also 

served as its OPRA records custodian.
4 A-2809-15T4

Prior to adopting the resolution, Galloway issued a check for 

its portion of the payment due to Bonanni under the settlement,

1

and sent it to Galloway's defense counsel for delivery to Bonanni's 

attorney. On November 11, 2014, however, defense counsel returned 

the check to the township manager and requested issuance of a new 

check because the first check included tax-withholding deductions. 

In a letter to the manager, defense counsel explained that under 

the terms of the Bonanni settlement, Galloway's payment was not 

to include withholding deductions. At the same time, defense 

counsel provided the township clerk with the Release. Galloway 

issued a corrected settlement check on November 12, 2014. 

In response to a tip that the Bonanni litigation had been 

resolved, on November 20, 2014, complainant served Galloway with 

an OPRA request for the "settlement agreement with Steve Bonanni." 

By that time, the Release had been signed and delivered to 

Galloway's defense counsel, the settlement check had been issued,

corrected and reissued, and the attorneys had exchanged the 

stipulations of dismissal they agreed would be filed to terminate 

the litigation. 

 

1 As part of the settlement agreement, the remaining portion of 

the agreed upon settlement payment was made by Galloway's insurance 

carrier.
5 A-2809-15T4

Having never received a written agreement signed by the mayor 

as required by the resolution, on November 20, 2014, Galloway's

records custodian denied plaintiff's OPRA request in writing,

stating "[t]he requested settlement agreement for Steve Bonanni 

has not been executed yet."

2 That same day, Galloway's township 

solicitor asked defense counsel if the Bonanni "settlement [has]

been completely finalized, including the tax deduction issue?" 

Defense counsel responded that he was out of his office, but had 

not "received anything as of today."

On November 24, 2014, Galloway's defense counsel forwarded 

the reissued corrected settlement check to Bonanni's attorney. In 

addition, Galloway's defense counsel advised he would file the 

first of two separate stipulations of dismissal with the court. 

The stipulation, which was dated October 30, 2014, dismissed the 

case as to the mayor only. Galloway's defense counsel and 

Bonanni's attorney had agreed the stipulation of dismissal as to 

Galloway would be filed later. 

On December 22, 2014, complainant served a second OPRA request 

stating "[s]ubject to immediate release[,] please provide the 

 

2 As noted, the resolution required that the records custodian,

who also served as the acting township clerk, attest to the mayor's 

signature on the settlement agreement. The records custodian was 

aware she had not attested to the mayor's signature on a settlement 

agreement and therefore reasonably understood the agreement 

required by the resolution had "not been signed yet."
6 A-2809-15T4

Steve Bonanni settlement agreement." On December 29, 2014, the 

records custodian responded in writing, stating "Steve Bonanni's 

settlement agreement has not been executed yet." 

On December 30, 2014, the township solicitor asked Galloway's 

defense counsel about the status of the Bonanni litigation and 

whether it could be considered "final and subject to OPRA release." 

Defense counsel responded the following day, advising he had just 

provided a copy of the "closing documents" to the township manager,

he was waiting to file the stipulation of dismissal as to Galloway,

and the settlement was final "as far as [he was] concerned." 

Defense counsel faxed copies of the release and stipulations of 

dismissal to the township manager and explained that although the 

documents had been previously signed, they were not approved by 

the Township until "much later." 

On January 1, 2015, complainant wrote to the township 

solicitor advising that he was informed a check was issued to

Bonanni and inquiring how the Township could issue a check if 

there was no executed settlement agreement.3 The next day, the 

records custodian received the Release, and provided a copy to 

complainant. The records custodian delivered the Release to 

 

3 In fact, a settlement check was issued to Bonanni in November 

2014 without there being a written settlement agreement between 

Galloway and Bonanni.
7 A-2809-15T4

plaintiff within seven business days of the records custodian's 

receipt of complainant's December 22, 2014 OPRA request. 

Three days after receiving the Release, complainant filed a 

GRC complaint alleging the records custodian unlawfully denied 

access to the Release in response to his November 20, 2014 OPRA 

request. Complainant asserted the November 4, 2014 release 

predated the OPRA request, the records custodian knowingly and 

willfully violated OPRA by failing to provide it, and the records 

custodian was subject to a civil penalty under N.J.S.A. 47:1A-11. 

Complainant later amended the complaint, adding Galloway's defense

counsel and township solicitor and alleging they participated in 

the unlawful denial of access to the Release.

On January 15, 2015, defense counsel filed the October 30,

2014 stipulation of dismissal as to Galloway with the court. On 

January 26, 2015, defense counsel advised Galloway that the Bonanni 

litigation had ended. 

On January 29, 2015, complainant filed a second denial of 

access complaint with the GRC. The complaint reasserted the claims 

in the plaintiff's initial complaint. The complaint also alleged 

Galloway's records custodian, defense counsel and township 

solicitor knowingly and willfully violated OPRA and should pay a 

civil penalty under N.J.S.A. 47:1A-11 for wrongfully denying 

immediate access to the Release in response to the December 22,
8 A-2809-15T4

2014 request. Complainant further alleged the solicitor should 

be disqualified from representing Galloway in the GRC proceeding.

The GRC consolidated plaintiff's complaints and received 

statements of information from the parties, and its executive 

director issued written findings and recommendations. Citing the

GRC decisions in Paff v. City of Union, GRC Complaint No. 2012-

262 (Aug. 27, 2013) and Kohn v. Twp. of Livingston, GRC Complaint 

No. 2012-328 (Aug. 27, 2013), the executive director reasoned that 

Galloway did not have an obligation to produce the record

complainant requested on November 20, 2014, until the Bonanni 

settlement was finalized. The executive director found that on 

November 20, 2014, the settlement of the Bonanni litigation was 

not final because Galloway "had not finalized and executed a 

settlement agreement" with Bonanni as required under the 

resolution. 

The executive director explained that although the records 

custodian later learned the Release was the only document 

memorializing the settlement, she had not seen the Release prior 

to the November 20, 2014 OPRA request. In addition, the executive 

director found the records custodian reasonably believed no 

settlement had been reached because she had not been asked to 

attest to the mayor's signature on a settlement agreement as 

required by the resolution. The executive director also determined 
9 A-2809-15T4

that the settlement agreement was not final on November 20, 2014,

because the first stipulation of dismissal was not filed until 

weeks later on December 8, 2014. The executive director concluded 

the records custodian did not unlawfully deny access to the Release 

on November 20, 2014, because "the evidence supports that the 

Township had not yet executed and finalized settlement at that 

time." 

The executive director also addressed complainant's denial 

of access complaint based on the production of the Release in 

response to his December 22, 2014 OPRA request. He determined 

that because only Bonanni signed the release, it was unclear 

whether the document "actually served as the official settlement 

agreement at the time of disclosure." He also noted that there 

were conditions precedent to the final settlement of the matter,

including the filing of the stipulation of dismissal as to 

Galloway, that were not satisfied when the December 22, 2014 

request was made. 

The executive director found it unnecessary to determine if 

the Release was exempt from disclosure under OPRA because, despite 

the records custodian's denial of access on December 22, 2014, she 

provided the release within seven business days of the request and 

therefore did not violate OPRA. The executive director also 
10 A-2809-15T4

recommended rejection of complainant's claims against Galloway's 

defense counsel and township solicitor.

The GRC adopted the executive director's findings and 

recommendations. In its final agency decision, the GRC determined 

the records custodian did not deny access to the release on 

November 20, 2014, because the evidence showed Galloway had not 

executed and finalized the settlement at that time. The GRC 

further concluded that there was no denial of access to the Release 

in response to complainant's December 22, 2014 request because the 

document was provided within seven business days. This appeal 

followed. 

II.

Our standard of review of a decision by the GRC "is governed 

by the same standards as review of a decision by any other state 

agency." Fisher v. Div. of Law, 400 N.J. Super. 61, 70 (App. Div. 

2008). "A reviewing court will not overturn an agency's decision 

unless it violates express or implied legislative policies, is 

based on factual findings that are not supported by substantial 

credible evidence, or is arbitrary, capricious or unreasonable."

Ibid. "[U]nder our deferential standard of review, we give weight 

to the GRC's interpretation of OPRA." McGee v. Twp. of E. Amwell,

416 N.J. Super. 602, 616 (App. Div. 2010). "We do not, however,

simply rubber stamp the agency's decision." Paff v. N.J. Dep't
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of Labor, 392 N.J. Super. 334, 340 (App. Div. 2007) (citation 

omitted); E.g., Paff v. N.J. Dep't of Labor, 379 N.J. Super. 346,

358 (App. Div. 2005). "Our standard of review is plenary with 

respect to" an interpretation of OPRA. Asbury Park Press v. Cty. 

of Monmouth, 406 N.J. Super. 1, 6 (App. Div. 2009), aff'd, 201 

N.J. 5 (2010).

We begin by noting that the parties do not dispute that 

settlement agreements are government records and subject to 

disclosure under OPRA. See Asbury Park Press v. Cty. of Monmouth,

201 N.J. 5, 6 (2009) (finding settlement agreement resolving 

lawsuit between an employee and a county is a government record 

subject to disclosure under OPRA). But here, the Bonanni 

settlement agreement was an oral agreement between Galloway's 

defense counsel and Bonanni's attorney. They agreed to the 

settlement terms: Bonanni agreed to execute a release of all claims 

and dismissal of the lawsuit in exchange for a monetary payment. 

There was no written settlement agreement between Galloway and 

Bonanni setting forth those terms, even though the resolution 

required a written agreement signed by the mayor, with his 

signature attested to by the acting township clerk.

Although the Release was not a contract between Galloway and 

Bonanni and did not comport with the requirements of the 

resolution, Galloway and the GRC considered the Release a
12 A-2809-15T4

government record encompassed within complainant's OPRA requests 

for production of the Bonanni "settlement agreement." That is why 

on January 2, 2015, the records custodian, after being advised for 

the first time that the settlement was final, provided complainant 

with the Release in response to his request for the Bonanni

"settlement agreement."

Relying on its decisions in Paff, supra, GRC Complaint No. 

2012-262, and Kohn, supra, GRC Complaint No. 2012-328, the GRC 

determined that the failure to provide the Release in response to 

the November 20, 2014 request did not violate OPRA because the 

settlement of the Bonanni litigation was not final at that time. 

In the executive director's findings and recommendations, which 

the GRC adopted, it states "the [GRC's] position on settlement 

agreements is that same are not finalized until all parties have 

executed the agreement." We need not address the validity of the 

GRC's application of its decisions in Paff or Kohn4 because having 

 

4 In Kohn, the GRC determined that a memorandum was not a government 

record subject to disclosure under N.J.S.A. 47:1A-1.1 because it 

contained "inter-agency or intra-agency advisory, consultative or 

deliberative material" concerning a settlement that had not been 

finalized. Kohn, supra, GRC Complaint No. 2012-328. In Paff, the 

GRC found there was no denial of access to a requested "settlement 

agreement" where the agreement did not exist at the time at the 

time of the OPRA request. Paff, supra, GRC Complaint No. 2012-

262. Here, the GRC did not make any factual findings supporting 

a determination that the Release contained "advisory, consultative 

or deliberative material." Instead, the GRC assumed the Release
13 A-2809-15T4

reviewed the record, we are convinced the GRC's factual finding 

that the settlement agreement was not final on November 20, 2014,

is not supported by substantial credible evidence.

"An agreement to settle a lawsuit is a contract which, like

all contracts, may be freely entered into, and which a 

court . . . shall honor and enforce as it does other contracts." 

Pascarella v. Bruck, 190 N.J. Super. 118, 124-25 (App. Div.),

certif. denied, 94 N.J. 600 (1983); accord Cumberland Farms Inc. 

v. New Jersey Dept. of Envtl. Prot., 447 N.J. Super. 423, 438 

(App. Div. 2016), certif. denied, 229 N.J. 149 (2017). Parties 

to a settlement agreement "may orally, by informal memorandum, or 

by both agree upon all the essential terms of the contract, and 

effectively bind themselves thereon, if that is their intention,

even though they contemplate the execution later of a formal 

document to memorialize their undertaking." Pascarella, supra,

190 N.J. Super. at 126. 

Here, all of the terms of the settlement were agreed to 

between the attorneys for the respective parties prior to November 

 

constituted such material based on its determination that a 

settlement agreement, or in this case a release, constitutes 

"advisory, consultative or deliberative material" until the 

settlement agreement is finalized. Because we conclude there is 

insufficient evidence supporting the GRC's determination that the 

settlement agreement was not final on November 20, 2014, it is 

unnecessary to address the validity of the GRC's assumption. 
14 A-2809-15T4

20, 2014. In accordance with the agreement, prior to November 20,

2014, the attorneys executed and exchanged the stipulations of 

dismissal, Bonanni signed and delivered the Release, and Galloway 

issued an initial and then corrected settlement check for its 

portion of the settlement amount due to Bonanni. There was no 

evidence that at any time after November 20, 2014, the attorneys 

negotiated or agreed to any additional settlement terms. To the 

contrary, the evidence established that Galloway and Bonanni 

entered into a binding and final agreement to settle the lawsuit

prior to November 20, 2014. See, e.g., Hagrish v. Olson, 254 N.J. 

Super. 133, 137 (App. Div. 1992) (finding acceptance of payment

in exchange for an agreement not to pursue an appeal constituted 

a binding settlement agreement). 

We are mindful that the stipulations of dismissal were not 

filed and the settlement checks were not delivered until after 

November 20, 2014, but the settlement agreement was final and 

binding when plaintiff served its first OPRA request. The filing 

of the stipulations and delivery of the checks were simply the

fulfillment of a condition of a final settlement agreement that 

the attorneys, on behalf of their respective clients, reached in 
15 A-2809-15T4

late October or very early November 2014.5 See, e.g., ibid.

("Absent unusual circumstances, the courts should enforce 

executory agreements to settle litigation."). 

We are therefore convinced the GRC erred in concluding that 

Galloway was not obligated to provide the Release on November 20,

2014 because the settlement agreement was not final. The record 

lacks substantial credible evidence supporting the factual finding 

upon which the GRC's conclusion is based. The parties do not 

dispute that the Release is a government record, N.J.S.A. 47:1A1.1, and it was provided in fulfillment of one of the conditions 

of the settlement agreement. Moreover, there is no evidence 

showing the Release was otherwise exempt from disclosure under 

OPRA when complainant first requested it on November 20, 2014. 

See N.J.S.A. 47:1A-1.1 (defining "government record" under OPRA 

and detailing exempt records). We therefore reverse the GRC's 

determination that Galloway did not unlawfully deny access to the 

Release in response to complainant's November 20, 2014 OPRA 

request.

 

5 We are convinced the final settlement agreement was reached in 

late October and early November 2014, because the stipulations are

dated October 30, 2014, the Release is dated October 30, 2014, and 

was signed by Bonanni on November 4, 2014, and Galloway issued the 

initial check prior to November 11, 2014.
16 A-2809-15T4

We next consider complainant's assertion that Galloway 

violated OPRA by denying lawful access to the Release in response 

to the December 22, 2014 request. It is undisputed that the 

records custodian provided the Release within seven business days 

of the request. See N.J.S.A. 47:1A-5(i) (requiring response to 

request for government records "no later than seven business days"

of a request "[u]nless a shorter time period is otherwise provided 

by statute, regulation, or executive order"). Nevertheless,

complainant asserts Galloway unlawfully denied access to the 

Release because it is a "contract" to which he was entitled to 

"[i]mmediate access" under N.J.S.A. 47:1A-5(e). We disagree.

"[C]ontracts . . . are ordinarily to be provided immediately"

in response to an OPRA request, Mason v. City of Hoboken, 196 N.J.

51, 65 (2008) (citing N.J.S.A. 47:1A-5(e)). Because the statute 

does not define the term "contract," we give the term its 

"generally accepted meaning, according to the approved usage of 

the language." N.J.S.A. 1:1-1. Contract is defined as a "legally 

enforceable agreement between two or more parties" or a "writing 

or document containing such an agreement." Webster's II New College 

Dictionary, 245 (1999). 

Here, as noted, the settlement agreement between Galloway and 

Bonanni was made orally between counsel, and was never incorporated 

into a formal written agreement. The records custodian reasonably 
17 A-2809-15T4

believed no settlement agreement had been made because the 

resolution required the mayor's signature on any settlement 

agreement and the records custodian knew that had not yet occurred. 

In any event, although the Release did not include all of the 

settlement terms and did not conform to the requirements of the 

resolution, we are satisfied that on December 22, 2014, it was an 

enforceable contract that was subject to the requirement of

immediate production under N.J.S.A. 47:1A-5(e). 

The Release created contractual rights between the parties. 

Under the Release, Bonanni agreed to dismiss his lawsuit and 

release all claims against Galloway in exchange for the monies he 

received. And although Galloway did not execute the document, the 

Release granted Galloway an enforceable contractual right 

precluding Bonanni's assertion of any future claims. In other 

words, the Release was a contract between the parties even though

it was signed only by Bonanni. See Domanske v. Rapid-American 

Corp., 330 N.J. Super. 241, 246 (App. Div. 2000) (finding "a 

release is merely a form of contract"). The Release was a contract 

that satisfied one of the conditions of the settlement agreement 

and was a government record encompassed by complainant's requests 

for the "settlement agreement." 

The GRC rejected complainant's claim he was unlawfully denied 

access in response to his December 22, 2014 request because it 
18 A-2809-15T4

determined the Release was provided within seven days of the 

request.6 This finding was based on its determination that the 

settlement agreement was not final when the request was made. As 

noted, the record lacks substantial credible evidence supporting 

that conclusion. To the contrary, the settlement was final and 

the Release constituted a contract to which Galloway should have 

provided immediate access N.J.S.A. 45:1A-5(e). We reverse the 

GRC's determination to the contrary.

Complainant also claims that the GRC erred by failing to 

determine it was the prevailing party and was entitled to 

attorney's fees. The GRC did not reach those issues and others,

including complainant's claim for the imposition of civil 

penalties, because it determined there were no OPRA violations. 

We will not address those claims in the first instance. The GRC 

shall address the claims on remand.

Reversed and remanded for further proceedings. We do not 

retain jurisdiction. 

 

6 The executive director recommended that because the Release was 

properly produced within the seven-day period, the GRC should 

decline to determine if the Release was exempt from disclosure 

because the settlement agreement was not yet final in December 22,

2014. Again, the record lacks sufficient credible evidence 

supporting any determination that the settlement agreement was not 

final on December 22, 2014.