SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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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 , P A , 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PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not " constitute precedent or be binding upon any court
. " A lthough 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, 20172 A

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

dec ision 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 T ownship m anager , Steven J. Bonanni , Sr. Galloway
and its mayor were represented in the litigation by an attorney

a ssigned by the Township ' s i nsurance 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 Octob er 28 , 2014 , Galloway requested that its
town solicitor prepare a resolution approving the settlement of
the Bonanni litigation.

On November 4 , 2014 , p rior to Gal loway ' s adoption of a

resolution approving the settlement , Bonanni signed a document

entitled " RELEASE AND SETTLEMENT AGREEMENT " (Release). I n the

document , Bonanni released Galloway from all claims he may have3 A

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against it. The R elease did not require o r 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 b ody adopted a
resolution in public session authorizing the settlem ent 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 Agree ment 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 counse l ' s " review and approval " of the " Settlement

Agreem ent 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

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Prior to adopting the resolutio n , 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 to wnship manager and reques ted 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 w ithholding 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 Bonan ni. "
By that time , the R elease had been signed and delivered to
Galloway ' s defense counsel , the settlement check had been issue d ,
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

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H aving 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 counse l 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 coun s el 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 mayo r 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 provi de 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 r ecords 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 bee n signed yet. "6 A

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Steve Bonanni settlement agreement. " On December 29 , 2014 , the
records custodian responded in writing , stating " Steve Bonanni ' s
settlement agreement h as 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 townsh ip manager , he was waiting to file the stipulation of dismissal as to Galloway ,
and the settlement was final " a s far as [he was] concerned. "
Defense counsel faxed copies of the release and stipulations of
dismissal to the township manager and explained th at although the
documents had been previously signed , they were not approved by
the Township until " much later. "

On Janua ry 1 , 2015 , complainant wrote to the township
solicitor advising that he was informed a check was issued to
Bonanni and inquiring how the T ownship could issue a check if

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

records custodian received the R elease , and provided a copy to
complainant
. The records custodian delivered the Release to

3 In fact , a settlement check was i ssued to Bonanni in November 2014 without there being a written settlement agreement between Galloway and Bonanni.7 A

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plaintiff within seven business days of the records custodian ' s receipt of complainant ' s December 22 , 2014 OPRA request.
Three days after receiving the R elease , complainant filed a

GRC complaint alleging the records custodian u nlawfully denied

access to the R elease 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 R elease
. 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

acc ess complaint with the GRC. The complaint reasserted the claims
in the plaintiff ' s initia l complaint. The complaint also alleged
Galloway ' s records custodian , defense counsel and township
solicitor knowingly and willfully violated OPRA and should pay a

c ivil 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

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2014 request. Complainant further alleged the solicitor should
be disqualified from representing Galloway in the GRC proceeding.

Th e GRC consolidated plaintiff ' s complaints and received
statements of information from the parties , and its executive

director issued writte n findings and recommendations. Citing the

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

- 262 (Aug. 27 , 2013) and Kohn v. Tw p . 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 w as finalized. The e xecutive director found that on

November 20 , 2014 , the settlement of the Bonanni l itigation was

not final because Galloway " had not finalized and executed a
settlement agreement " with Bonanni as required under the

resolution.

The exec utive 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 h ad 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 de termined9 A

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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 ex ecutive director concluded
the records custodian did not unlawfully deny acces s 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

th at because only Bonanni signed the release , it was unclear

whether the document " actually served as the official settlement

agreeme nt 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 u nnecessary to dete rmine if

the R elease 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 requ est and

therefore did not violate OP RA. The executive director also10 A

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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 recor ds 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 acces s to the R elease
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 revie w 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 ' t11 A

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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. 200 5)
. " 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. C ty . 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 B onanni ' s a ttorney. The y agreed to the

settlement terms: Bo nanni 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 Gallo way and

Bonanni setting forth those te rms , even though the resolution
required a written agreement signed by the mayor , with his
signature attested to by the acting township clerk.

A lthough 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 a12 A

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government record encompassed within complainant ' s OPRA requests
for production of the Bonanni " settlement agreement
. " That is why
on January 2 , 2015 , the records cust odian , after being advi sed 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 , th e 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 litigati on was not final at that time.

In the executive directo r ' 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 Kohn 4 because h aving

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 intr a - agency advisory , cons ultative or deliberat ive material " concerning a settlement that had not been finalized. Kohn , supra , GRC Complaint No. 201 2

- 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 deliber ative material
. " Instead , the GRC assumed the Release13 A

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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 la wsuit is a contract which , like

all contracts , may be freely entere d into , and which a

court . . . shall honor and enforce as it does other cont racts. "

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 Envt l
. 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 N ovember

co nstituted such material based on its determination that a settlement agreement , or i n this case a release , constitutes

" advisory , consultative or deliberative material " until the settlement agreement is finalized. Because we conclude the re is insufficient evidence supporting the GRC ' s determination that the settlement agreement was not f inal on November 20 , 2014 , it is unnecessary to address the validity of the GRC ' s assumption.14 A

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20 , 2014. In accordance with the agreement , prior to November 20 ,
2014 , t he attorney s 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 tim e 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 stipulation s of dismissal were n ot

filed and the settlement checks were not d elivered until after

November 20 , 2014 , but the settlement agreement was final and
binding when plaintiff served its first OPRA request. T he filing
of the stipulations and delivery of the check s were simply the

fulfill ment of a condition of a final settlement agreement that
the attorneys , on behalf of their respective clients , reached in15 A

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late October or very early November 2014. 5 See , e.g. , ibid.
( " Absent unusual circumstances , the courts should enforce

executo ry agreements to settle litigation. " ).

We are therefore convinced the GRC erred in concluding that
Galloway was not obli gated 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. 47:1A

1.1 , and it was provided in fulfillment of one of th e 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 u nlawfully 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 Bona nni on November 4 , 2014 , and Galloway issued the initial check p rior to November 11 , 2014.16 A

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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. I t i s un disputed that the

records custodian provided the Release within seve n business days
of the request. See N.J.S.A. 47:1A

- 5 (i) ( requiring response to
request for government record s " 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 O P RA 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 neve r incorporated

into a formal written agreement. The records custodian reasonably17 A

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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 agains t Galloway in e xchange 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 claim s. In other

words , t h e 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 o ne of the conditions of the settlement agreement
and was a government record encompassed by complainant ' s requests

for the " settlement agreement. "

T he GRC rejected complainant ' s claim he was unlawfully denied
access in response to his December 22 , 2014 request b ecause it18 A

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determined the Release was provided within seven days of the

request. 6 This finding was b ased on its determination that t he
settlement agreement was not final when the request was made. As

noted , the record lacks substantial cred ible 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.

Co mplainant also claims that the GRC erred by failing to
determine it was the prevailing party and was entitled to

attorney ' s fe es. The GRC did not reach those issues and others , including complainant ' s claim for the imposition of civil
penalties , because i t determined there were no OPRA viol ations
.

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

shall address the claims on remand.

Reversed and remand ed for further proceedings. We do not
retain jurisdiction.

6 The executive director recommended that because the Release was properly produced within the seven

- d ay 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 set tlement agreement was not final on December 22 , 2014.