Camden-Wyoming Sewer & Water Authority attorney Mary Sherlock maintained the authority's argument that employee salaries were not subject to disclosure under the state's Freedom of Information Act based on its interpretation of state law while Deputy Attorney General Ralph Durstein said such a notion was "illogical" in opening arguments Monday morning.
Durstein argued for the state in Delaware v. Camden-Wyoming Sewer & Water Authority before Superior Court of Delaware Judge Robert B. Young while Sherlock, of the Weber Gallagher Simpson Stapleton law firm's Dover office, defended the authority in Court No. 4 on the second floor of the Kent County Courthouse.
Durstein said it was "illogical" for any employees of the CWSW to expect privacy with regard to their salaries.
Sherlock argued that the state code created the mechanism by which the authority could be created but that the towns of Camden and Wyoming were the actual creators of the Camden-Wyoming Sewer & Water Authority. Moreover, the authority neither received state taxpayer dollars nor local taxpayer dollars from residents of the towns in question, she added.
Opening, oral arguments were the beginning of a long anticipated case precipitated by the denial of Wyoming Treasurer Georgette Williams' request for salaries and benefits in March 2011. Williams was denied the information. In response, the Delaware General Assembly passed legislation signed by Gov. Jack Markell specifically stating that CWSWA was a public body subject to the First State's Freedom of Information Act request.
CWSWA still resisted, and the Delaware Department of Justice intervened on Williams' behalf when Attorney General Beau Biden filed a lawsuit against the authority on Aug. 3, 2011.
On Monday morning, Sherlock said employee salaries were not included under the public records that it needed to provide.
But, Durstein said the argument that individual employees' salaries were exempt had been thrown out in previous FOIA cases.
Sherlock argued that the General Assembly's action to single out the Camden-Wyoming Sewer & Water Authority was an argument that teetered on "a slippery slope" and bypassed the analysis required to determine whether the authority was subject to FOIA.
Page 2 of 2 - But, Durstein said state Legislature amended code to make it clear that the CWSWA was a public body.
"Once that was passed, there was no need to go through the analysis," he said.
Sherlock said CWSWA was regularly audited and auditors were required by state law to report any salaries that appeared "out of skew" to them.
"There is no attempt to hide anything," she said.
However, Young pointed that the auditor was hired and paid by the CWSWA Board of Directors.
"What determines out of skew?" he said. "What if the town of Franklin's sewer and water salary is one-tenth that of Camden-Wyoming? Is that not out of balance?"
Durstein said the authority operated a monopoly funded by user fees paid by residents of the town. As such, the authority was required to operate under full disclosure of its operations, including employee salaries, he said.
"The determination of whether salaries are high or low is determined by the people, not the auditors," he said.
Sherlock then created a stir in the packed courtroom and caused Durstein consternation when she insinuated that sewer and water fees could be raised as a result of the disclosure of salaries.
Sherlock and Camden-Wyoming Sewer & Water Authority Chairman Mark M. Dyer Sr. explained after court proceedings that the disclosure of salaries would cause strife amongst employees. Dyer said CWSWA could lose employees as a result, citing one employee who recently left for a higher paying job with Kent County.
Sherlock also said during oral arguments that Williams could not ask for employee salaries in her capacity as treasurer for the town of Wyoming.
Durstein responded that Williams did not abdicate her right as a citizen to ask for public records under the state's FOIA law. It would be akin to denying a polling station manager the right to vote, he said.
Williams, also the Kent County comptroller, said after oral arguments that she was denied access to records even when she showed up personally with State Sen. Brian Bushweller (D-Dover) to the authority. Williams said her main objective was to determine if rates in Camden-Wyoming were fair by looking at CWSWA's biggest expense – salaries and benefits.
Williams, Bushweller, the sponsor of the aforementioned action by the Legislature, and Wyoming Mayor Frankie Dale Rife all said the Attorney General's Office presented its argument well.
Sherlock and Durstein both declined to speculate on when Young would render a decision.
Young told both parties he would render a decision as soon as possible before he ordered court into recess.