Superior Court Judge Rules Emails Between Anderson and Fairgrounds Redevelopment Board are Public Records

By MARY SERREZE

NORTHAMPTON — Hampshire Superior Court Justice Cornelius J. Moriarty ruled on Thursday that city economic development director Teri Anderson is not exempt from public records law when it comes to her communication with the Three County Fairgrounds Redevelopment Corporation.

Anderson was until recently a voting member of the corporation’s board of directors. She is also head of the city’s Community and Economic Development Office (CEDO).

A complaint for ruling under public records law was filed in 2010 by Maria Tymoczko of 28 Pomeroy Terrace, an abuttor to the partially-stalled $46 million fairground redevelopment project.

Tymoczko had filed a public records request with Anderson requesting access to “all emails and all other correspondence” concerning the proposed redevelopment of the the fairgrounds.

Moriarty, in allowing a motion for summary judgment filed by Northampton lawyer Michael Pill, wrote that Anderson’s emails and other correspondence concerning the fairgrounds are public records, not the private property of the redevelopment board.

The city has 30 days to appeal the court’s decision. If no appeal is filed, the city must turn over a trove of fairgrounds-related communication to Tymoczko, who is suing the city and fairgrounds officials in state Land Court.

In granting Pill’s motion, Moriarty noted that Anderson used City of Northampton office supplies, sent and received correspondence from her office at City Hall, used her city email address, and retained documents in electronic form on her work computer related to her role as a fairgrounds board member.

Anderson had been filing permit applications and attended hearings simultaneously in her capacities as a city employee and as a member of the redevelopment corporation board of directors, he noted.

“Having joined the Board by virtue of her public position, Anderson sent, received and created records for the Three County Fairgrounds project also by virtue of her public office,” Moriarty wrote.

City Solicitor Elaine Real, representing Anderson, had argued that because the fairgrounds board is a private entity, it need not divulge its communications to the public.

She had further maintained that Anderson’s emails, even if public records, were exempt from disclosure under a state law protecting trade secrets and certain financial information. Moriarty wrote that Anderson had failed to meet the burden of proof that such an exemption applies.

In Judge Moriarty’s decision, he noted that even though the redevelopment board is a private entity not subject to public records law, Tymoczko still has the right to inspect records Anderson has in her possession as a direct consequence of her status as a public official.

“Such records are public,” concluded Moriarty.

Anderson was named as the city’s representative to the fairgrounds redevelopment board in 2008 by former Mayor Mary Clare Higgins. Acting Mayor David Narkewicz last month removed Anderson from that position, calling her role there “inappropriate.”

Earlier this month Anderson announced she would be leaving city government for a new job as a regional economic development planner with Common Capital, formerly the Western Mass. Enterprise Fund.

Some of Anderson’s emails have already been released to Tymoczko, a former Ward 3 city councilor. In August, Anderson turned over about two hundred messages from her personal computer in City Hall, nine months after the original public records request.

After acting mayor David Narkewicz took office in September, he ordered a search of the city’s email central email archives, turning up 21 more. (see story, Daily Hampshire Gazette.)

But in a telephone interview on Sunday, Tymoczko said that the city is still holding back entire categories of communication, including attachments containing the redevelopment board’s minutes and agendas.

The Three County Fairground Redevelopment Corporation, a non-profit subsidiary of the Hampshire Franklin and Hampden Agricultural Society, consists of representatives from the Northampton Area Chamber of Commerce and the Franklin Hampshire and Hampden Agricultural Society (which owns the property).

Until recently, the board also contained representatives from Northampton city government who had been appointed by former Mayor Mary Clare Higgins. While Anderson no longer sits on the board, she still attends its meetings.

Three former Ward 3 city councilors — Marilyn Richards, Bob Reckman, and Angela Plassmann — also at one time sat on the redevelopment board while serving as elected officials. When Reckman, a Higgins appointee, lost the Ward 3 election to Plassmann in 2009, he kept his fairgrounds seat. Plassmann sat on the board briefly before stepping down of her own accord, citing advice from the state ethics commission. Richards is no longer member of the redevelopment board, and now sits on the Planning Board. Owen Freeman-Daniels, the current Ward 3 councilor, is not a board member but said he’s been invited to attend their meetings as a non-voting member, which he has done.

Officials say a redeveloped Three County Fairgrounds would pump $30 million to $63 million into the regional economy every year.

Originally, Tymoczko’s beef with the city and fairgrounds officials was her claim that stormwater from the project would be discharged upon a 15 acre parcel that she owns, rendering it unfit for agriculture.

But it’s evolved into more than that, Tymoczko said over the phone — she wants to hold government accountable.

The project was rubber-stamped by three city boards last year, she said, representing a “scandalous betrayal of the public trust.”

“They rolled over and played dead,” she said.

Tymoczko said she was curious to see whether Narkewicz, in his first days as mayor, would appeal Moriarty’s ruling — “throwing good money after bad and protecting his predecessor in the mayor’s office.”

She added that the trove of previously hidden communication between city hall and the fairgrounds proponents will likely “open a window into the way the Higgins administration did business.”

She does not want to kill the fairgrounds redevelopment, she said, but wants to ensure that landowners on the down-drainage, southerly side of the fairgrounds are not adversely impacted by what she called an “experimental” stormwater management system involving elaborate underground detention basins, pumps, and controlled release mechanisms.

On a more practical level, if Tymoczko and her lawyer do gain possession of Anderson’s documents,  it’s safe to assume they’ll comb through them carefully, seeking fodder for their land court complaint. That lawsuit, which names the city, the redevelopment board, and the agricultural society, charges that proponents intentionally failed to seek a special permit for the fairgrounds project so as to prevent Tymoczko’s having meaningful right to appeal.

In his land court argument, Pill points to a July 14 email procured in an apparent leak from a board member. In that message, board member Charles Bowles relays to proponents a piece of tactical advice from lawyer Ed Etheredge:

“…if we go for site plan approval and it is appealed we can proceed at our own peril. But if we go for special permit and it is appealed we are dead in the water until the appeal is satisfied.”

Last summer, the $4 million “Phase One” development of the fairgrounds — consisting of brand-new horse barns — was unveiled to great fanfare. Whether the rest of the project will come to fruition remains to be seen.

© Northampton Media

Mary Serreze can be reached at mserreze@northamptonmedia.com

 

Tymoczko v. Anderson Motion Allowed