Wednesday, November 15, 2017

Appellate Division: Release that settled lawsuit is disclosable when settlement terms are agreed to by the parties.

Are lawsuit settlement agreements subject to disclosure when the settlement terms are first hammered out and agreed to by the parties or can agencies suppress settlement information until all the paperwork is signed, sealed and delivered?  This is an important question because weeks or sometimes months elapse between a lawsuit's parties' informal--yet binding--agreement to settle and the signing of a formal agreement by all parties.  During those weeks or months, many public agencies deny access to settlement agreements thus depriving the public of important settlement information.

The case law on this issue has so far has been mixed.  Judges in Essex, Hudson and Passaic Counties have ruled that agencies must disclose settlement agreements as soon as the settlement's essential terms have been agreed to and reduced to writing.  (William Paterson University, however, has appealed the Passaic County judge's ruling and that appeal remains pending.)  But, a judge in Mercer County has reached the opposite conclusion.

Today, an Appellate Division panel has come out on the side of early release.

On November 15, 2017, a two-judge Appellate Division panel issued an unpublished (and thus non-precedential) opinion holding that a release that settled a lawsuit was final and required to be disclosed to an Open Public Records Act (OPRA) requestor when "the terms of the settlement were agreed to between the attorneys for the respective parties" even though "the stipulations of dismissal were not filed and the settlement checks were not delivered until after" the parties' attorneys came to their agreement.  The panel also said that releases and settlement agreements that settle lawsuits are "contracts" which must be made "immediately available" in accordance with N.J.S.A. 47:1A-5(e).

The opinion reversed a Final Agency Decision of the Government Records Council (GRC).

Tuesday, November 14, 2017

Appellate Division: Local Finance Board lacked quorum to decide ethics matter.

In a November 14, 2017 unpublished (and thus non-precedential) opinion, a three-judge panel of the Appellate Division ruled that four members of the eight-member Local Finance Board (LFB) were not statutorily authorized to rule on a Local Government Ethics Law (LGEL) complaint against a Franklin Township (Somerset County) Fire Commissioner.

According to the opinion and a January 13, 2016 LFB decision, the Franklin Township Ethics Board ruled in 2011 that Fire District 1 Commissioner James Wickman violated the LGEL by voting "to settle a sexual harassment lawsuit filed [in 2009] against the Commissioners of Franklin Township Fire District No. 1 in which he was also an individually-named defendant."  The LFB reversed the Franklin Ethics Board's determination and vacated a $250 fine it had levied against Wickman.  The LFB found that "Wickman's limited involvement in the underlying sexual harassment litigation did not rise to the level of a direct or indirect financial or personal involvement that might reasonably be expected to impair his objectivity or independence of judgment [and] that Wickman did not use or attempt to use his official position to secure an unwarranted privilege or advantage for himself."

Jeff Carter, a Franklin Township resident and brother of the woman who filed the underlying sexual harassment lawsuit, appealed the LFB's decision to the Appellate Division.  The Appellate Division found that N.J.S.A. 40A:9-22.9 required that LFB decisions "shall be made by no less than two-thirds of all members of the [B]oard."  Accordingly, the panel ruled, "at least six of the Board's eight statutorily-commanded members had to participate in the decision it rendered in this case."  Since only four members were present to vote, the Appellate Division found that "the decision is void," vacated it and remanded the matter back to the LFB for further proceedings.

Saturday, November 11, 2017

Appellate Division: Courts are empowered to penalize government officials for knowing and willful OPRA violations.

There has been some confusion over the power of Superior Court judges to assess monetary penalties against records custodians and other government officials who knowingly, willfully and unreasonably violate the Open Public Records Act (OPRA)

The confusion stems from the Appellate Division's August 5, 2008, unpublished opinion in Hirsch v. City of Hoboken.  In that case, a three-judge panel held that the Superior Court lacks the authority to issue civil penalties against government officials because the court's "role under OPRA is not as broad as the role of the Government Records Council (GRC)."

On August 3, 2017, the Appellate Division issued a published opinion in North Jersey Media Group, Inc. v. Office of the Governor, 451 N.J. Super. 282 that rejected this limitation.  This precedential opinion states that both the Superior Court and the GRC are empowered to assess civil penalties against records custodians in appropriate cases.

Under N.J.S.A. 47:1A-11, "[a] public official, officer, employee or custodian who knowingly and willfully violates [OPRA} and is found to have unreasonably denied access under the totality of the circumstances, shall be subject to a civil penalty of $1,000 for an initial violation, $2,500 for a second violation that occurs within 10 years of an initial violation, and $5,000 for a third violation that occurs within 10 years of an initial violation."

Friday, November 10, 2017

Former Orange City Clerk ordered to pay $1,000 penalty for knowingly and willfully violating OPRA.

Update: In an earlier version of this post, I erroneously indicated that the former Clerk who was penalized served the City of East Orange rather than the City of Orange.  I regret this error.
In an October 31, 2017 order, the Government Records Council (GRC) ordered former Orange City (Essex County) Clerk Dwight Mitchell to "pay a civil penalty in the amount of one thousand dollars" for knowingly, willfully and unreasonably violating a woman's rights under the Open Public Records Act (OPRA). 

The penalty arose out of records denial complaint that Katalin Gordon filed with the GRC against the City.  In June 2013, Gordon requested disability insurance payments received by Clerk Mitchell between June 1, 2010 and June 25, 2013 and all sick days accumulated by him during the same period.  In a September 30, 2014 order, the GRC determined that even though the City's denial of Gordon's request was improper, it "did not rise to the level of a knowing and willful violation of OPRA" even though Mitchell had "failed to respond to the Complainant’s OPRA request in a timely manner, failed to provide a specific legal basis for denying the requested records, and failed to prove that the denial of access to the requested records was authorized by law."

Gordon appealed and a two-judge Appellate Division panel, in a June 23, 2017 unpublished opinion, found that there was "insufficient evidence in the record to support [the GRC's] finding that the City's denial of Gordon's OPRA request was not willful and deliberate."  The panel found that the City wrongly denied Gordon's request by claiming there was on-going and pending litigation with Mitchell.  When confronted with the fact that no such litigation existed, the court said that the City "unconvincingly" explained that it mistakenly characterized an investigation into Mitchell as litigation.  The court found that even if there was an investigation, the City offered nothing to prove that release of the records Gordon sought would be "inimical to the public interest."  After finding that the payroll records Gordon sought were clearly disclosable and after noting that the City made "meritless claims" that Gordon's OPRA request was "too broad" and that the information she sought was not maintained electronically, the two-judge panel reversed the GRC's September 30, 2014 order and remanded the matter to the GRC "for further proceedings regarding the imposition of appropriate penalties in accordance with OPRA."  The GRC's October 31, 2017 Order arose out of that remand.

Mitchell was given five days to pay the fine.

Tuesday, November 7, 2017

Who is T.S. and why is he or she suing the Monmouth County Prosecutor and seeking to have the lawsuit sealed by the court?

Monmouth County Prosecutor
Christopher J. Gramiccioni
Update 11/16/17: I spoke with Judge Thornton's law clerk today and learned that the hearing on sealing the record will be held on November 17, 2017 at 2:30 p.m. instead of 1:30 p.m. and that if a settlement conference being held in the judge's chambers at 1:30 p.m. results in settlement, the sealing motion will become moot and the records in the court's file that are not otherwise exempt will become open to the public.  I also learned that the plaintiff's name is Timothy Snyder and that he is an adult. According to the law clerk, Snyder initially filed using his initials T.S. but Judge Thornton disallowed the pleading and required Snyder to refile an amended pleading identifying him by his full name.  Unfortunately, the person who updates the court's on-line docket did not change the plaintiff's name in the public, on-line record.  That has been corrected and Timothy Snyder's full name now appears on the on-line docket.
Monmouth County Assignment Judge Lisa P. Thornton has permitted me to participate in a November 17, 2017, 1:30 p.m. hearing that will determine whether pleadings filed by an unidentified person in a civil case against Monmouth County Prosecutor Christopher J. Gramiccioni will be released to the public or sealed away from public view.

The lawsuit, which bears Docket No. MON-L-2856-16, was filed on August 4, 2016 by a person identified only by the initials "T.S."  I recently stumbled upon the case while randomly searching the New Jersey Superior Court's on-line docket (a horribly outdated and difficult to use system--click here for my article on how to best navigate it).  Intrigued, I had my non-profit submit an Open Public Records Act (OPRA) request for T.S.'s amended civil complaint but was informed by Jennifer Lipp, the Monmouth County Prosecutor's Office's records custodian, that because of her "duty to protect people’s privacy interests including medical, mental health, substance addiction, domestic violence, among other privacy interests," she would not release even a redacted copy of the lawsuit even though the Motion to Seal had not yet been decided. "Knowing there is a pending motion before the Assignment Judge could also be an ethical violation for me," she wrote in her October 31, 2017 e-mail.

I then submitted a records request under New Jersey Court Rule 1:38 (the courts are not subject to OPRA) for a copy of the amended complaint as well as the briefs and certifications filed in support of and in opposition to the Motion to Seal.  In subsequent conversations with Judge Thornton's law clerk I was told that I would not receive any of the requested documents unless and until the Motion to Seal was heard and denied.  But, I was invited to submit a written argument in opposition to the motion and to participate in hearing at which the motion will be heard.

My opposition brief was difficult to write because I have not been allowed to know the nature of the lawsuit or any of the factual allegations underlying it.  Nor have I been allowed to see T.S.'s arguments on why he or she believes that the lawsuit should be sealed.  All I know is that the case is of type "701--Prerogative Writs." Basically, I'm almost completely in the dark and will hopefully be given a few crumbs of information during the November 17th hearing.

The hearing will presumably be open to the public.  Anyone who wishes to observe should call Judge Thornton's chambers at 732-677-4100 the day prior to make sure that the hearing hasn't been cancelled or postponed.

Thursday, October 26, 2017

Court to determine if State Trooper overtime pay amounts are public information and whether 100+ day OPRA response delays are permissible.

Update: In an October 30, 2017 court order, Mercer County Assignment Judge Mary C. Jacobson reprimanded the Division of State Police for having a "pattern and practice of lengthy delays" of between 120 and 145 days in responding to Open Public Records Act (OPRA) requests.  She ordered the Division to provide a certification to the court, the requestor's attorney and the Superintendent of State Police "that explains the reasons for the delayed response [and] "describes the current resources and procedures the State Police has in place for managing OPRA requests, and outlines a plan to foster compliance with OPRA's timelines in the future."  Judge Jacobson also ordered the Division to release overtime information on four troopers, provide properly redacted versions of the troopers' final pay stubs and pay the attorney fees of CJ Griffin, the OPRA requestor's lawyer.
On Thursday, October 26, 2017 at 2 p.m., Mercer County Assignment Judge Mary C. Jacobson will hear the case of Libertarians for Transparent Government (LFTG) v. New Jersey State Police, et al, Docket No. MER-L-1055-17. There are two matters at issue: 1) whether the amount of overtime pay a State Trooper receives must be disclosed to the public and 2) whether the court will require the State Police--an agency that routinely takes months to substantively respond to even routine Open Public Records Act (OPRA) requests--to generally honor OPRA's seven business-day response period.

On the first issue, LFTG submitted a records request to the Division of State Police on December 20, 2016 seeking payroll records from 2015 for four specific State Troopers.  In its request, LFTG requested "records that show the amount of overtime earned in 2015 by each of" the four Troopers.  In its April 20, 2017 response, the Division sent LFTG payroll records for the four Troopers that were redacted to remove personal identifiers and overtime earnings.  The Division's suppression of overtime pay was based on state regulation N.J.A.C. 13:1E-3.2(a)(7) which exempts:
The duty assignment of an individual law enforcement officer or any personally identifiable information that may reveal or lead to information that may reveal such duty assignment, including, but not limited to, overtime data pertaining to an individual law enforcement officer.
LFTG's lawyer, CJ Griffin of Hackensack, argued in her brief that since OPRA expressly permits access to payroll information, including the amount of overtime pay, the Department of Law and Public Safety lacks authority to create an administrative rule that exempts all overtime information. "A regulation passed by the Department of Law and Public Safety cannot trump what is expressly made available by statute and OPRA makes payroll records and overtime information available," she wrote.

In its opposition paperwork, the Division submitted a Certification by Major Scott Ebner that stated in part:
Disclosure of overtime pay, overtime hours, and compensatory time for individual State Troopers will reveal the names of the State Troopers who have worked the largest amount of overtime. This information, when viewed in the aggregate, can be used to determine the duty assignments of the troopers at the top of the overtime lists. This link between overtime pay and duty assignment is possible because the highest earners of overtime pay more often than not are those troopers engaged in homeland security, executive protection and undercover assignments. Such knowledge, in turn, will assist terrorists and other wrong-doers who intend to cause harm to New Jersey or high level New Jersey officials.
The Division also pointed out in its opposition that in 2005 then Mercer County Assignment Judge Linda R. Feinberg upheld the Division's denial of overtime records in the unpublished case of Newark Morning Ledger Co. v. Division of State Police of the New Jersey Department of Law and Public Safety.  According to the Division's brief, Feinberg's "ruling was the catalyst for the New Jersey Department of Law and Public Safety to amend its regulation, N.J.A.C. 13:1E- 3.2(a)(7), to include a specific reference to "overtime data pertaining to an individual law enforcement officer."

In her reply to the Division's opposition, Griffin pointed out that the Appellate Division, in its 2015 unpublished decision in New Jersey Second Amendment Society v. Div. of State Police, cautioned the State Police "against the use of [N.J.A.C. 13:1E-3.2(a)(7)] to improperly deny public access to overtime information because that would clearly subvert the express language of OPRA."  Griffin also pointed out that the Division routinely publicizes its Troopers' allegedly confidential duty assignments on social media.   (Note: the Newark Morning Ledger and New Jersey Second Amendment Society cases are attached to the Division's opposition brief as Exhibits D and E, respectively.)

On the second issue, Griffin's brief pointed out that the State Police extended OPRA's seven business-day response period nine separate times causing the Division to not substantively respond to LFTG's request for payroll information on four employees until 121 days had elapsed.  In order to show that this delay was not an isolated incident, Griffin submitted certifications from OPRA requestors Richard Rivera and Gavin Rozzi demonstrating that they each encountered long delays when requesting records from the Division.  She also submitted a chart developed by LFTG showing that 150-day delays were typical.  In opposition, the Division noted only that LFTG did not object to the extensions.  In her reply, Griffin wrote that since the Division "has a pattern and practice of grossly violating OPRA's statutory timelines . . . [t]he Court should therefore enter an Order compelling the State Police to comply with OPRA's statutory timeframes in the future."

Wednesday, October 25, 2017

Galloway taxpayers paid $103,222.57 in legal fees and costs to an OPRA requestor's attorneys.

At its October 24, 2017 meeting, the Galloway Township (Atlantic County) Council authorized an $87,199.44 payment to Clinton-based attorney Walter M. Luers for legal work that he and other lawyers performed in an Open Public Records Act (OPRA) lawsuit that resulted in a significant New Jersey Supreme Court ruling.  This is in addition to $16,023.13 in fees and costs that Galloway taxpayers paid Luers as a result of a July 25, 2014 court order that arose out of the same case.  The $103,222.57 figure does not include fees and costs paid by Galloway taxpayers to their own lawyer, Michael J. Fitzgerald of Linwood, for advocating the Township's interests in this case.

The case was John Paff v. Galloway Township et al, that resulted in a June 20, 2017 decision in which a unanimous New Jersey Supreme Court ruled that "information in electronic form, even if part of a larger document, is itself a government record [and that] electronically stored information extracted from an email is not the creation of a new record or new information; it is a government record."  The decision reversed a contrary ruling handed down by a three-judge Appellate Division panel on April 18, 2016.  The Appellate Division ruling had reversed a June 10, 2014 opinion issued by Atlantic County Superior Court Judge Nelson C. Johnson.

According to an agreement between the Township and Luers, of the $103,222.57, $16,023.13 represents legal work done at the trial level, $51,770.85 for work done at the Appellate Division level and $35,428.59 for work done before the New Jersey Supreme Court.  Attorney who assisted Luers and who will receive part of the proceeds are: Henry F. Furst, Joshua M. Laurie, Raymond Baldino and Michael M. McIlmail.