Friday, April 18, 2014

Paff and Carter unfairly blasted by Firemen's Association's president at state convention.

On September 13, 2013, George H. Heflich Sr., president of the New Jersey State Firemen's Association, personally attacked me and Jeffrey Carter during his report delivered to thousands of delegates who were assembled at the convention. The video of President Heflich's comments is on YouTube here.

Let's review Heflich's statements, one by one:

1. That in 2008, the Government Records Council (GRC) refused the Association's request for an advisory opinion on whether or not the Association was subject to the Open Public Records Act (OPRA).

True.  A copy of The GRC's December 30, 2008 letter is on-line here.
2. Prior to my lawsuit, the Association did not believe that it was subject to OPRA and it did not have an OPRA request form nor had it appointed an OPRA records custodian.
It is probably true that the Association did not believe it was subject to OPRA.  It is true that the Association did not have an OPRA request and had not appointed a custodian.
3. My lawsuit filed in Union County Superior Court was "dismissed."
True. Superior Court Judge Regina Caufield's February 17, 2012 order and opinion are on-line here.
4. The Appellate Division reversed Judge Caufield's dismissal and held that the Association is subject to OPRA.
True. The Appellate Division's June 13, 2013 decision is on-line here.
5.  I received all the information I requested and my request was not on an OPRA request form.
It is true that my request was not on an OPRA request form.  It could not have been because the Association had not adopted a request form at the time of my request.  It is false that I received "all the information I had requested," at least prior to winning in the Appellate Division.  My September 23, 2011 OPRA request, which is on-line here, was denied by way of the Association's lawyer's October 13, 2011 letter, which is on-line here.  In the letter, the lawyer maintains that the Association is not subject to OPRA.  Notwithstanding, he provided me with some of the information I requested due to me being a Life Member of the Association.  He did not, however, provide me with "records that shows the amount and type of pension received by each member of the Executive Committee who served immediately prior to the current members of the Executive Committee" as requested in part 2.a of my request.  That information, on-line here, was not provided until July 13, 2013--after the Appellate Division's ruling.
6. Everything I had requested "is in the Red Book."
False. The Red Book is an Association publication that lists basic information about the Association.  I do not have a copy of the Red Book and the last time I consulted one, it did not contain any detailed pension information for Executive Committee members.  Indeed, had the pension figures been in the Red Book, there would have been no reason for the Association to have not provided it with its attorney's October 13, 2011 letter.
7. On July 24, 2013, I sent out an e-mail throughout the State containing false and misleading information.
False.  After I learned that President Heflich was personally attacking me during his presentations to the County Caucuses in July 2013, I sent an e-mail, on-line here, to several Local Chapters located in counties that had not yet had their caucuses. The purpose of these e-mails was to notify Association delegates and Life Members of the facts concerning my lawsuit so that they would not be misled by President Heflich's attacks.  There is nothing false or misleading in my e-mail.  Also, on-line here is a flyer I handed out at the Somerset County Caucus defending myself against President Heflich's attacks.
8. President Heflich informed me of my allegedly "false and misleading" e-mail at the Somerset County Caucus.
True. President Heflich did repeat his claim about my e-mail during his presentation to the Somerset County Caucus.  When I challenged him to specify what was false about my e-mail, he stated, incredibly, "The fact that you sued the Firemen's Association."  When I pointed out to him that it was indisputable that my suit named the Association as a defendant, he changed the subject.
9. My friendship with Jeff Carter.
I know Jeff Carter.  He is a former police officer in my town and also served as a firefighter for a fire company within my fire district.  His OPRA requests to the Association, however, are his own and not mine.
10. I am trying to "destroy" the Association.
False. The Association receives millions of dollars from a state tax that is assessed against fire insurance premiums collected by out-of-state insurers.  I firmly believe that an organization that collects tax money should be publicly accountable.  Indeed, even the Association itself believed that it might have been subject to OPRA, given that it sought an advisory opinion to that effect from the Government Records Council.  My litigation ultimately answered the question that the Association could not get answered by the GRC.
11. I am trying to obtain information regarding who is receiving relief payments from the association to "satisfy my own ego."
False. I have never sought information from the Association regarding which members are receiving relief.  I am informed that Jeff Carter did make a request to the Association for payments made to one member.  According to court papers filed in State Firemen's Association v. Jeff Carter, Docket No. UNN-L-2932-13 (on-line here), Carter was interested in obtaining information regarding relief payments made to "John Doe, who was the target of an investigation into the viewing of child pornography at the offices of his local Fire District (among other things)."  His stated intent in receiving this information on this one member was to criticize the Local Chapter's decision to pay this money to this person.
12.  Relief payments by Local Chapters are reported in the Red Book.
True.  The aggregate payments are reported but no information is reported that identifies the recipients and how much each received.
13. Jeff Carter is seeking the names of multiple people who are receiving relief payments.
As far as I know, the only person for whom Carter requested relief payment information is for John Doe, as described above.

--end--

Municipal Clerk in Hunterdon County agrees to pay $1,000 OPRA penalty.

On April 2, 2014, Administrative Law Judge Susan M. Scarola recommended acceptance of a settlement of an Open Public Record Act (OPRA) case filed with the Government Records Council.  Judge Scarola's recommendation and the Settlement Agreement in the case of George F. Burdick, Jr. v. Township of Franklin (Hunterdon County) are on-line here.

According to the agreement, Franklin Township Clerk Ursula Stryker agreed to "personally pay a fine of $1,000 to the Government Records Council" within 60 days of Scarola's order.  The agreement recites that the Township acknowledged that it was able to comply with an Interim Order of the GRC, but attributed its failure to do so to "the intentional acts of at least one of its professionals which directly affected [Stryker's] ability to comply with the Interim Order."  The agreement also recites that the Township "has already made adjustments to its Open Public Records protocol to ensure continual compliance with the GRC's ruling" and that the Township "wishes to resolve this matter without having to expend additional counsel fees for one or more days of hearings."

The agreement resolved a case that started with Burdick's November 19, 2009 OPRA request for invoices that a private investigator submitted to an attorney that had been retained by the Township in connection with police disciplinary matter.

The professional who allegedly acted intentionally to frustrate Stryker's ability to comply with  the GRC's interim order was apparently attorney John J. O'Reilly.  In an April 12, 2012 letter to the GRC (on-line here), Katrina L. Campbell, legal counsel to Franklin Township, said that, despite her best efforts, she could not convince O'Reilly to authorize release of the investigator's invoices.  She suggested that the GRC "issue a subpoena to [O'Reilly] or the investigator to obtain the records."

Wednesday, April 16, 2014

Although no records existed, judge orders OPRA fees when town clerk's response was negligent.

Suppose you submit an OPRA (Open Public Records Act) request to your local town government for a record.  Then, suppose the town clerk denies your record on the basis that she or he "does not have authorization to to send to you."  After you file a lawsuit for the records, suppose the clerk comes clean and truthfully certifies that the records you requested do not exist.

In such a situation (i.e. where the clerk's initial response was wrong or misleading), should the town still be required to pay your attorney fees and court costs for bringing the OPRA lawsuit?

In the first decision of its kind, Morris County Superior Court Assignment Judge Thomas L. Weisenbeck held on April 11, 2014 that the plaintiff was entitled to his costs and attorney fees accrued up until the clerk informed him that the records didn't exist.  See the Order and Decision in Kelley v. Borough of Riverdale, Docket No. MRS-L-524-14, on-line here.  Plaintiff's attorney was Walter M. Luers of Clinton.

Weisenbeck held that the clerk
technically violated OPRA by providing, albeit negligently, an incorrect response, thereby requiring plaintiff to file his complaint. Had defendants initially advised [Plaintiff[ that no such responsive e-mails exist, then presumably [Plaintiff] would not have initiated suit.
This is an important victory for records requestors.  Sometimes custodians, who know full well that responsive records do not exist, mislead requestors into thinking that responsive records might exist.  If the ability to recover attorney fees is dependent upon the records actually existing, custodians can gain an advantage over requestors by providing less than candid OPRA responses.  Hopefully, Weisenbeck's holding will be adopted by other courts.

Monday, April 14, 2014

Trooper discloses home address despite Deputy Attorney General's security concerns.

Back on August 7, 2012, I blogged (link here) about a call I had received from the Attorney General's office asking me to not publish the home address of a State Trooper on my blog.  According to Deputy Attorney General Vincent J. Rizzo, Jr.,  the Trooper, Jason Dare, may had done undercover work and may have made himself enemies among the criminal class.  Rizzo said that he was worried that my on-line disclosure of his home address tended to put the Trooper and his family at risk.

Today, in response to an OPRA request, I received a copy of the Trooper's civil rights lawsuit against Hamilton Township (By way of background, Dare had been acquitted of drunk driving and refusal to take an Alcotest after an early morning, single car crash in Hamilton.)

In paragraph 2 of the lawsuit, which is on-line here, Dare, through his attorney, Conrad J. Benedetto of Cherry Hill, disclosed his home address in Vineland.  Thus, the Attorney General's office was apparently more concerned about Dare's alleged security problem than Dare himself was.

Sunday, April 13, 2014

Small town in Atlantic County has 19 records custodians and alternates.

On January 27, 2014, the Town Council of Hammonton, an Atlantic County community with a 2010 population 14,791, resolved to appoint a separate deputy records custodian for each of ten principal departments in the municipality.  The same resolution also appointed nine "Alternate Records Custodians"--one for each of the ten departments except for the Recreation Department.

According to Resolution 023-2014, which is on-line here, "the Open Public Records Act does not preclude the Municipality from developing reasonable and practical measures for responding to OPRA requests which may include the designation of deputy custodians for particular types of records."

Thursday, April 3, 2014

Following up on: Publishing the "amount" of no-bid government contracts

April 3, 2014

Thomas Neff, Director
Division of Local Government Services
(via e-mail only)

RE: Publishing the "amount" of no-bid government contracts

Dear Mr. Neff:

On December 23, 2012, I wrote to you about a common, statewide problem of municipal governments failing or refusing to list the amounts of their no-bid contracts in the newspaper legal advertisements that the Local Public Contract Law requires them to publish.  My original letter, with links to the relevant exhibits, is on-line here.  In my letter, I asked the Division to "distribute a Local Finance Notice, or otherwise remind local governments of the statutory requirement to include the "amount" of each professional services contract they award within the legal notice published in the local newspaper."

Since then, I have had the following e-mail exchanges with you on this topic:
December 23, 2012: You wrote: "Thoughtful comments John. We will consider doing so in the near future. As you can probably appreciate, we are all hand on deck with Sandy financial impacts but I am forwarding to our Asst Dir for financial reg for consideration. ([Gerry Seneski], talk to me about this next week.)"

February 21, 2013: I wrote: "Just following up.  Did you and Gerry Seneski have opportunity to speak about the issue raised in my 12/23/12 e-mail?"

February 23, 2013: You wrote: "I did and will be deferring to Gerry on this. Gerry, just know that Gordon is working on a notice relating to procurement.  It may be something simple we can tack onto that notice.  Talk with Gordon or Chris about adding something simple and to the point."
Has anything been done yet?  The reason I'm asking is because I am still seeing examples of municipal governments awarding no-bid contracts to lawyers and other professionals without listing the "amount" of those contracts in the newspaper ad, as required by law.  For example, North Hanover Township in Burlington Township awarded eleven no-bid professional services contracts at the Township Committee's January 1, 2014 reorganization meeting and the newspaper's legal advertisement (on-line here) in each instance informs that the "cost" can be determined by looking at the contract itself or Resolution 2014-1.  When one goes to the Township's web site, however, neither the contract nor the resolution is on-line.  This means that interested citizens have to OPRA the contract in order to get the information that they were supposed to get simply by reading the newspaper.

The fact that this problem is still occurring despite me having written to you about it over a year ago and despite you having twice directed your staff to remedy it is, frankly, troubling.  What exactly does it take to get the Division to enforce a law that is within its purview?

Sincerely,

John Paff, Chairman
New Jersey Libertarian Party's
Open Government Advocacy Project
Phone: 732-873-1251
E-mail: paff@pobox.com

Tuesday, April 1, 2014

Open Government and a pint of beer in Metuchen tomorrow.

Come join me at at the Citizens Campaign's "Civic.ly Speaking" event on Wednesday, April 2, 2014, 6 p.m. at Hailey's Harp & Pub, 400 Main St, Metuchen, NJ 08840.  More information is on-line here.