Niagara Gazette

April 9, 2013

Falls Bridge Commission lawsuit languishes

By Rick Pfeiffer
Niagara Gazette

Niagara Gazette — BUFFALO — It’s been almost two and a half years since U.S. District Court Judge Richard Arcara asked lawyers for the Niagara Falls Bridge Commission why they were keeping secrets from the public.

But despite the judge’s concerns, he still has not ruled on a lawsuit brought by two local lawmakers seeking to force the commission to comply with the federal Freedom of Information Act.

Arguments between lawyers for then Niagara County Legislators John Ceretto, and Danny Sklarski and attorneys for the bridge commission took place in U.S. District Court in Buffalo on Oct. 21, 2010. Since then, Cerretto has moved on and been elected a New York state assemblyman, while Sklarski left the Niagara County Legislature and became a councilman in the Town of Niagara.

Sklarski admitted he hasn’t given the lawsuit much thought in the intervening years.

“I’ll be honest with you,” he told a reporter, “I haven’t thought the first thing (about the lawsuit) since you just brought it up.”

Cerretto said he has just been waiting patiently for Arcara to rule.

“When we (brought the lawsuit), we did it because we thought the people had a right to know what (the bridge commission was doing),” Cerretto said. “I think boards and commissions should be accountable.”

Cerretto said he has had some contact with the lawyers who represented him and Sklarski in the case since the last court appearance. Sklarski, however, said he has not heard so much as a “whisper” from the attorneys.

“(The lawyers) told me the judge will rule when he’s ready and there’s not much to do until then,” Cerretto said.  

Ted Graney, a partner in the law firm Webster Szanyi, who represented the two local lawmakers could not be reached for comment. Attorneys for the bridge commission were also unavailable.

“The judicial system moves on their own timetable,” Sklarski said. “The decides in his own time and there’s nothing we can do.”

The lawsuit seeks to force the commission to disclose information about the 2008 departure of it’s executive director, Thomas Garlock. Sklarski and Cerretto filed their request for details about Garlock’s separation agreement with the commission under the federal Freedom of Information Act which requires government agencies and entities to make information about their operations available to the public.

The lawsuit is Ceretto and Sklarski’s second attempt to force the commission to provide documents on Garlock’s exit. A prior lawsuit, brought under New York State’s Freedom of Information Law, was dismissed by Arcara, who ruled the commission was not a state agency and not subject to the state law.

The commission has argued that it is neither a state nor a federal agency and is not subject to either of the public disclosure laws.

During the October 2010 arguments in the case, Arcara repeatedly asked commission lawyers, “What’s the big secret? What are you trying to hide? Who are you trying to protect?” 

When the commission lawyers said they wanted to protect Garlock’s privacy, Arcara took issue with that position.

“But who pays him?” Arcara said.

“The commission,” one their lawyers replied.

“Where does the commission get its money from? From the public, when they cross the bridges, it gets it from me,” the judge said. “Your position, it defies common sense.”

In his prior ruling, Arcara declared, “There can be no doubt that the commission is a public authority of some sort, performing a public function.” Lawyers for Ceretto and Sklarski the argued the federal FOIA must apply to the commission.

In prior filings in state and federal court and in arguments in front of Arcara, lawyers for the commission have repeatedly insisted that they are not bound by the laws of either the United States or Canada because the board is “bi-national” and made up of half American and half Canadian members.

Commission lawyers have also argued that even if Arcara ruled that information was available under U.S. law, Canadian law bars the release of it.

Sklarski said he is still hopeful that Arcara will rule on the lawsuit.

“I think, at some point, a resolve needs to be made,” he said.

The commission was created by an act of Congress. Half of the commissioners are appointed by the governor of New York. 

When asked by a reporter whether, as a member of the state Assembly, he might seek to introduce legislation or otherwise pressure the governor to make the commission more transparent, Cerretto said he would look into that.

“That’s a good point,” Cerretto said. “I always thought about this as just a legal matter. But I would consider (some legislative action) now.”