Saturday, November 22, 2014

Burlington County Mayor fined $100 for ethics violation

On November 17, 2014, New Jersey Local Finance Board Chairman Thomas H. Neff issued a Notice of Violation and assessed a $100 fine against the mayor of a small Burlington County borough. According to the Notice of Violation, the borough had made purchases from the mayor's parents' business of which he was an employee.

The fine was levied against Wrightstown Mayor Thomas E. Harper and arose out of a November 11, 2011 ethics complaint filed by John Paff and the New Jersey Libertarian Party.  The ethics complaint and Notice of Violation are on-line here and here, respectively.  Paff and the Libertarian Party had complained that Harper had an interest in a local automotive service station named Tom's Service Center during 2010 when Wrightstown Borough paid the business $11,799.45 for fuel and repair services.

In the cover letter that accompanied the Notice of Violation, available at the link above, Neff put additional questions to Mayor Harper regarding discrepancies in his Financial Disclosure Statement (FDS) forms submitted from 2010 through 2014.  In his letter, Neff instructed Harper to "explain the discrepancies" and "have each FDS referenced herein corrected and resubmitted to the Board for review."

Paff and the Libertarian Party had previously filed three other ethics charges (here, here and here) against Mayor Harper and his wife, all of which were dismissed.

Friday, November 21, 2014

Unpublished trial court OPRA opinion.

"Unpublished opinions" are not published in the law books and are not ordinarily written about in legal periodicals. Unless somebody puts them on-line and calls attention to them, they are likely not to be located by people who may want to search for them. I think that it's important that court opinions, even if they are not precedential, are easily accessible for future use.

John P. Schmidt v. Swedesboro-Woolwich Board of Education, et al.
Gloucester County, Docket No. GLO-L-862-14
Hon. Georgia M. Curio, A.J.S.C.
Undated (Approximately mid-November 2014)
Click here for the court's decision.

Summary: After in camera review, court denied requestor's challenge to redactions school board applied to its executive session minutes, citing the deliberative process privilege.

Tuesday, November 18, 2014

Retired Wildwood Crest police officers to testify on why letters related to their misconduct should remain secret.

In a November 18, 2014 opinion, Superior Court Judge Nelson C. Johnson ordered retired Wildwood Crest Lieutenant Michael Hawthorne and Captain David Mayer to appear before him on December 12, 2014, 10:30 a.m. to explain why letters why letters discussing their "serious deceitful and/or untruthful" conduct should continue to be withheld from the public.  Johnson's decision is on-line here and background information on this lawsuit is on-line here.




Wednesday, November 12, 2014

OPRA lawsuit filed against Franklin Township Fire District

On November 12, 2014, Clinton attorney Walter M. Luers filed an Open Public Records Act (OPRA) lawsuit on my behalf seeking a settlement agreement that resolved a 2011 defamation lawsuit filed by a former Franklin Township (Somerset County) fire commissioner against two volunteer fire departments and several individually named fire officials.

The 2011 suit was filed by former Franklin Township Fire Commissioner Michael Gilliam against Fire District No. 3, Commissioner Douglas Krushinski, East Franklin Volunteer Fire Department Chief Daniel Krushinski and President Christopher Fischer and Community Volunteer Fire Department Chief Richard Ries and Board Chairman Herman Calvo.  Details and background documents from the suit, in which Gilliam alleged that the defendants falsely claimed that he engaged in illegal or immoral liaisons with minors, are on-line here.

After Gilliam's lawsuit was dismissed against the District and the two fire companies, Gilliam settled with the individual defendants.  I filed an OPRA request for the settlement agreement between Gilliam and the individual defendants and was denied.  The Fire District claimed that it was forced to deny access to the settlement agreement because the District's insurer, Volunteer Firemen's Insurance Services (VFIS), refused to release it to the District.  Accordingly, VFIS has been named as a party to my OPRA lawsuit.

The civil complaint, certification, order to show cause and brief filed in my OPRA lawsuit are on-line here.  The docket number is SOM-L-1474-14.

Governor Christie's flight documents disclosed pursuant to court order.

On January 13, 2014, Clinton attorney Walter M. Luers filed an Open Public Records Act (OPRA) lawsuit on my behalf challenging the suppressions and redactions the Governor's Office applied to travel documents related to the Governor's April 2013 trip to Dallas, Texas for the dedication of the George W. Bush Presidential Library and Museum.  Background on that suit is on-line here.

On October 23, 2014, Mercer County Assignment Judge Mary C. Jacobson ordered that the flight information, including airline, airports, seat numbers, etc., be disclosed.  Judge Jacobson also ruled that information regarding the hotels at which the Governor, his wife and staff stayed could remain suppressed.

The documents, as originally provided in response to my OPRA request are on-line here while the same documents which were re-released after Judge Jacobson's ruling are on-line here.

Wednesday, November 5, 2014

Availability of records maintained by an agency's insurers, lawyers or other third parties.

Today, I had a records custodian claim that she was not obligated to search beyond the walls of her office for records responsive to my Open Public Records Act request.

Since it is fairly common for custodians to take this position, I have publicly posted my response to her.  I hope that this might be helpful for other requestors who encounter similar situations.
----------------------------------------------------------------------------
Dear Records Custodian:

As you know, I submitted an Open Public Records Act request for a settlement agreement that resolved a civil lawsuit against the municipality.  You had initially responded that "no settlement [is] available for this case."

I then requested clarification, explaining that "[i]t is not clear from your response whether a settlement agreement exists, but you don't have it available in your office or whether no such settlement agreement exists."  Today, in an e-mail, you responded that "please note that our records do not contain a settlement agreement.  I am only able to provide you with records in my custody, and have provided the record(s) in your original request that were within my custody."

Please be advised that your duty to disclose records is not limited to disclosing those that are in your office.  You are also required to disclose responsive records that are maintained on the municipality's behalf by third parties such as outside legal counsel.  

When presented with the question of a government agency's duty to disclose settlement agreements held by outside counsel, the Appellate Division held that the agency's custodian's duty was to retrieve those records for the requestor.

Were we to conclude otherwise, a governmental agency seeking to protect its records from scrutiny could simply delegate their creation to third parties or relinquish possession to such parties, thereby thwarting the policy of transparency that underlies OPRA.  
Burnett v. Gloucester County, 415 N.J.Super. 506, 517 (App. Div. 2010).
Accordingly, the question of whether you are required to retrieve records responsive to an OPRA request turns on the nature of the records, not their physical location.

Very truly yours,

Tuesday, November 4, 2014

Unpublished trial court OPRA opinion.

"Unpublished opinions" are not published in the law books and are not ordinarily written about in legal periodicals. Unless somebody puts them on-line and calls attention to them, they are likely not to be located by people who may want to search for them. I think that it's important that court opinions, even if they are not precedential, are easily accessible for future use.

Yaakov Wenger v. Lakewood Fire District No. 1, et al.
Ocean County, Docket No. OCE-L-2466-13
Hon. Vincent J. Grasso, A.J.S.C.
October 30, 2014
Click here for the court's decision.

Summary: 1) Agency officials' certification that they have every document "to the best of their knowledge" has been disclosed to the requestor is not a proper OPRA denial.  2)  Fire District ordered to officially appoint a records custodian and reconsider requestor's request anew and provide a proper response as required by OPRA.