For Immediate Release — 3 June 2011

Contact:  Dan Schroeder, Sierra Club volunteer, 801-393-4603

SIERRA CLUB AND OGDEN SETTLE GONDOLA RECORDS LAWSUIT

The Sierra Club and Ogden City have settled a legal dispute over
access to government records dating from 2007.

The disputed records pertain to the gondola and resort development
that was proposed in 2005 by Mayor Matthew Godfrey and Chris Peterson,
owner of the Malan’s Basin property in the mountains above Ogden.

The Sierra Club requested access to a variety of records in mid-2007,
and the city released many of the requested records at that time.
However, the city also withheld a few dozen records–mostly
emails–citing several statutory exemptions under Utah’s Government
Records Access Management Act (GRAMA). After the city’s Records Review
Board upheld the decision to withhold these records, the Sierra Club
filed suit in Utah’s Second District Court.

Under the terms of the recent settlement, Ogden has now released 43 of
the 46 withheld records, even while continuing to maintain that these
records were legally withheld. The Sierra Club disagrees with Ogden’s
opinion on these 43 records, but has agreed that the remaining three
records were legally withheld under GRAMA. To complete the settlement,
Ogden has reimbursed the Sierra Club for $10,000 in attorneys’ fees.

The Sierra Club considers this settlement a full victory, aside from
the investment of volunteer time and the long delay before the vast
majority of the records were publicly released. The Sierra Club’s
attorneys, Joel Ban and Patrick Shea, were allowed to examine the
three remaining records under a confidentiality agreement, and
determined that those three records were legitimate attorney-client
communications that could be withheld under GRAMA.

As the lawsuit progressed over the last three years, the Sierra Club
and Ogden became engaged in several procedural disputes. Chief among
these was whether Ogden was required to provide a detailed list of the
records being withheld.

Initially, the city refused to list the withheld records or even to
disclose the number of records being withheld. When this question came
before the court, however, Second District Judge W. Brent West ruled
that the city had to provide an index of the withheld records that was
sufficiently detailed to allow the opposing party to assess the
applicability of each GRAMA exemption that was being claimed. The
Sierra Club hopes that this ruling will help set a state-wide
precedent, encouraging other government agencies to adequately
describe the records they are withholding.

Although the gondola and resort proposal has been dormant for the last
three years, the content of the released records is still interesting
for two reasons.

First, the records document the depth of involvement of Ogden City
officials and others in promoting the gondola-resort proposal. For
example:

* The city administration assembled a detailed $600,000 budget for
gondola-related studies and attempted to fund nearly half of this
amount through an exchange of federal grant funds with the Utah
Transit Authority, bypassing the Ogden City Council.

* Peterson and Godfrey managed the public relations campaign through a
“steering team” consisting of Michael Joseph, Edgar Allen, Dave
Hardman, Dan Musgrave, Larry Hansen, Bob Geiger, Kent Petersen, and
Jennifer Jones.

* The Ogden-Weber Chamber of Commerce paid at least $15,000 to
Pinnacle Marketing for the public relations effort, and was reimbursed
for at least $10,000 by Peterson.

Second, the newly released records document the city’s overly broad
interpretations of several GRAMA exemptions. For example:

* A contract and invoice for an already-completed consultants’ study
were withheld under the GRAMA exemption for “drafts”.

* A price quote from an engineering firm was withheld under the GRAMA
exemption for records whose disclosure would impair government
procurement, even though no competitive bids were ever sought.

* An email suggesting that Peterson close off the hiking trails on his
property was withheld under the GRAMA exemption for records of
negotiations over business incentives.

* An email consisting solely of the sentence “Thanks for following up
on this” was withheld under the GRAMA exemption for attorney-client
communications.

These classifications highlight the city administration’s troubling
preoccupation with secrecy, even in instances when the withheld
records contained no information worth protecting. Equally troubling
is the fact that the city’s Records Review Board, a supposedly
independent body, upheld every one of these classifications during its
administrative appeal hearings.

Copies of all of the released records are posted on the Sierra Club’s
web site, http://utah.sierraclub.org/ogden/.

The AP reported quoting the Judge:  “No more veterans should be compelled to agonize or perish while the government fails to perform its obligations,” Judge Stephen Reinhardt wrote for the three-judge panel. “Having chosen to honor and provide for our veterans by guaranteeing them the mental health care and other critical benefits to which they are entitled, the government may not deprive them of that support through unchallengeable and interminable delays.”  He went on to state that: “[t]he delays have worsened in recent years, as the influx of injured troops returning from deployment in Iraq and Afghanistan has placed an unprecedented strain on the VA, and has overwhelmed the system”.

Faith in the system is something that is difficult under the circumstances.  The VA has a very hard job but instead of attempting to address the problem directly and with zeal towards assisting Veterans many head administrators have engaged in acts of deceit and misdirection.  An email from a VA deputy chief illustrates this point.  “Shhh!” began a Feb. 13, 2008, e-mail from Dr. Ira Katz, a VA deputy chief. “Our suicide prevention coordinators are identifying about 1,000 suicide attempts per month among the veterans we see in our medical facilities. Is this something we should (carefully) address ourselves in some sort of release before someone stumbles on it?”  Clearly, some administrators in the VA are more interested in limiting public knowledge of the problem.  Others have engaged in deliberate misdiagnosis and have exacerbated the problem by attempting to encourage some in the VA health system to not diagnosis PTSD.  There was another email from a psychologist in Texas who asked her colleagues to not diagnose PTSD to such a great extent.

These emails should shake the public’s trust in the government’s ability to adequately care for Veterans.  This is not just a problem for Veterans, although it is their well-being that is of utmost concern, but it does a tremendous disservice to all Americans since it erodes the public’s trust in our government, and its ability to care for some of the most important Americans.  Hopefully this decision will be a wake up call to the VA.  It is true that the VA’s mission is incredibly difficult, but the facts that have come to light in this lawsuit make it clear that they are woefully failing in its mission.

New claims at the VA have nearly doubled since 2005, and of the 1.3 million living combat veterans discharged since 2001, nearly half have filed for benefits.  Richard Cohen, Director of NOVA , has remarked that today’s veterans are suffering in different ways than Veterans of previous wars such as Vietnam.  This is especially true of the Veterans who may have been involved in roadside bombs during one of the current conflicts, but the explosion will often not directly implode next to a soldier. They will be close enough to suffer brain trauma causing long term impacts that often are not immediately recognizable or traumatizing.  The Post’s report includes other scathing indictments on the VA’s integrity including a case where a Veteran’s medical record had apparently been deliberately altered by the VA to make the disability appear less severe.  The case was eventually heard in a federal Article III court and he was awarded significant retroactive benefits for $175,000 since he should have received his benefits much sooner.

Ban Law Office regularly practices in this Court and often settles Veteran’s cases before briefing based on remands where Board of Veteran Appeal errors can be corrected.  Many cases at the CAVC are settled in this manner since the remand and error rate are so high at the BVA.  Unfortunately this does not bring immediate remedy or compensation to the Veteran, but allows for the opportunity to present more evidence and make the case stronger.

For claims related to PTSD or Agent Orange consultation and records requests may be directed to the Joint Services Records Research Center.  JSRRC serves as Secretary of Army’s administrative agent for direct support of the Department of Veterans Affairs, Veterans Service Organizations, and individual Veterans to accomplish this mission.  They research all available Army, Navy, Air Force and Coast Guard unit records, but not the Marine Corps.  However, this agency is seriously limited in terms of what they can do since they will not specifically verify that a specific event occurred, obtain statements from commanders or friends about an incident, or research records related to a stressor during Marine Corp service.  There is also the National Personnel Records Center in St. Louis, MO, but again this option has serious limitations.  Many Veterans may find that their records are unavailable due to a fire at the Center in 1973.  So there are options, some have serious problems, and although the VA has a role here in terms of finding records the Veteran still ultimately has the difficult burden in certain claims to find the records that they need to prove their compensation claim.

The objective of the amendment to the EAJA is alleged to be to impose a moratorium on the bill so that it can be determined how much government money is being paid under the EAJA and to spotlight any abuses under the law.  The moratorium would last until October 2011.  No justification has been given why the program cannot be studied without imposing a moratorium.  The bill would most definitely harm disabled Veterans who frequently are required to retain an attorney to handle their case in the U.S. Court of Appeals of Veterans Claims.  A very high percentage of these cases are remanded based on the fact that the VA’s position is not substantially justified.  Politico has covered the current situation very well.  Representative Lummis intends to introduce a reform bill that will correct perceived weaknesses in the bill.  The general assumption is that it would focus on cases that are environmentally focused even though it appears that EAJA primarily is paid out in disability cases.

Not to say that this is the ideal solution and is viewed by a panacea by all parties as many view a video hearing as a poor substitute for a live hearing with a judge.  The VA widely relies on video hearings since there are basically never any local judges in the VA disability system.  The Social Security system should fare better for applicants since at least Social Security has a more advanced electronic file system whereas the VA does not.  However concerns about being able to face a judge in a live setting persist and its unclear if this is the solution to adjudicating disability claims in the most fair way while being mindful of due process concerns.  The Quick Disability Determination (QDD) and Compassionate Allowance (CAL) processes should allow for faster adjudication of many disease situations.  It is still recommended that applicants consult with qualified attorneys for assistance with their claims so that the proper evidence can be gathered and representation at a hearing (video or live) can occur.

Work is not considered substantial under Social Security rules if less than $1000 per month is earned and you are not blind. This is only for the year 2010 and typically increases every year. However it did not in 2011. This is based on the Social Security Cost of Living Adjustment. As explained above one should keep in mind that even if you earn less that this amount the fact one engages in work activity could influence the judge since they could reason that this person could in fact work full time at a level that was greater than the substantial level. Therefore, the decision to work should be weighed based on the financial needs vs. the need to succeed in your disability claim. If possible generally it is better not to work when applying for disability.