Dewey cleared of complaint by police chief

Resident seeks lawsuit costs, settlements for past 10 years
October 21, 2019

The Attorney General’s Office found Dewey Beach officials did not violate the Freedom of Information Act after a complaint was filed by Dewey Police Chief Sam Mackert.

The attorney general’s Sept. 17 opinion came in response to Mackert’s petition alleging the town violated open meeting requirements during town council’s Aug. 9 meeting.

At the meeting, Commissioner David Moskowitz said a report on the police department cited concerns about the chief’s effectiveness. He called for the town manager to place an ad and start looking for a new chief. 

Town Manager Scott Koenig, Mayor TJ Redefer and Town Counsel Fred Townsend silenced Moskowitz’s attempts to elaborate; Townsend said that discussion should be held in executive session.

In his complaint, Mackert alleged the town violated FOIA by failing to post the matter on the agenda and failing to reserve the personnel discussion for executive session.

The attorney general’s opinion referenced Townsend’s response to Mackert’s petition, which stated Moskowitz “blurted out” his statements and that commissioners had no intention to discuss the matter.

The opinion found the town’s response to the complaint provided sufficient evidence to demonstrate a discussion of Mackert’s performance did not take place. 

While FOIA allows a public body to discuss certain topics in executive session, the opinion stated, “FOIA does not prohibit a public body from discussing a topic in open session. Therefore, even if the town had conducted a personnel discussion in open session, FOIA does not expressly forbid the council from doing so.”

Koenig said Townsend responded to the complaint on behalf of the town.  

The town spent just over $1,000 in attorney fees to address the complaint, Koenig said. 

An email request for comment to Mackert was answered by Daniel Herr, who identified himself as Mackert’s attorney; Herr said Mackert had no comment. Mackert could not be reached for further comment.

In related matters, Dewey Beach resident Ken Beach told commissioners at their monthly meeting Sept. 12 that he was concerned to read that commissioner candidate Phil Rowe is suing the town and Commissioner Paul Bauer.

Beach said costs involving the number of lawsuits and FOIA requests, combined with increasingly high insurance premiums, are disheartening. He said if the town doesn’t raise taxes, it needs to control money that leaves the town.

Beach called for the town to provide a list of lawsuit costs and to whom settlements were paid for the past 10 years.

“It’s the town’s money, and I think we would like to know what’s going on,” he said.

When asked the costs for FOIAs recently submitted by Moskowitz on town issues and by Dewey Beach Mayor TJ Redefer regarding Moskowitz’s emails, Koenig said it is difficult to tie down costs for regular FOIA requests, and hours spent responding to them are not tracked.

“FOIA complaints to the Attorney General’s Office are another story whereby we need to spend legal resources to respond,” Koenig said. “Fred [Townsend] bills us for his time for these complaints, and we also get bills from him for some regular FOIA reviews depending upon the subject matter.  FOIA responses are very time-consuming for our organization, and we will never be in a position to recover those costs to a very large extent.”

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