Tuesday, October 28, 2014

Lawsuit challenges State Police denial of records pertaining to excessive force allegedly being applied against South Jersey woman.

On Friday, December 5, 2014 at 9:30 a.m., Mercer County Assignment Judge Mary C. Jacobson will hear argument on my lawsuit against the New Jersey State Police.  See Paff v. NJ Department of Law & Public Safety, et al, Docket Number MER-L-1623-14, on-line here.  My lawyer in this matter is Walter M. Luers of Clinton.

This lawsuit arises out of phone call I received on May 10, 2014 in which a witness recounted a Commercial Township (Cumberland County) woman's physical encounter with a unidentified State Trooper.  According to a the report, the woman, who weighs ninety pounds, tried to speak with a Trooper who had responded to a residence to investigate a report of an argument or disturbance.  When the woman tried to hand a telephone to the Trooper so that the woman's mother, who was on the line, could "explain the whole thing," the Trooper allegedly grabbed her by the throat and forcible dragged her down the front step, slammed her on the ground and put his kneecap on her throat.  According to the witness, when another witness asked the Trooper to ease up, the Trooper reportedly said "We can do whatever the f*** we want."

In order to learn the State Police version of what had occurred, I submitted an Open Public Records Act (OPRA) request for the arrest reports, police incident reports, audio of phone calls and radio transmissions, dash cam video and criminal complaints.  After State Police records custodian, Marco Rodriguez, granted himself two extensions he ultimately denied the request claiming that there was an open investigation and that the records were exempt as "criminal investigatory records."

I then made a subsequent request for State Police policies and procedures requiring police interactions with civilians to be documented by written reports or computer aided dispatch (CAD) entries.  Rodriguez denied this request on the basis that those records are "designated confidential" by N.J.A.C. 13:1E-3.2(a)(1).  But, that section is inapplicable since it exempts "records concerning background investigations or evaluations for public employment, appointment to public office, or licensing, whether open, closed, or inactive."

Monday, October 27, 2014

Police Chiefs' group seeks entry into OPRA suit over e-mail logs.

By way of background, Atlantic County Judge Nelson C. Johnson, on June 10, 2014, required Galloway Township to disclose e-mail logs showing the sender, recipient, date and subject line of each e-mail sent by a specific government employee during a specified period of time.  On September 4, 2014, Galloway appealed from that ruling.  More information and case documents are on-line here.

On October 23, 2014, the New Jersey State Association of Chiefs of Police ("NJSACOP") requested permission to join the appeal as amicus curiae or "friend of the court."  The NJSACOP, represented by the Morristown law firm of Porzio, Bromberg & Newman, P.C., argued that public disclosure of e-mail logs of police officials would be "crippling" and "could compromise the sensitive investigatory techniques of police departments throughout the State and irreparably damage the fluid and consistent exchange of confidential information within the departments."  The NJSACOP's filing is on-line here.

While the Appellate Division will likely grant the request, the NJSACOP's position doesn't make much sense. Galloway has never argued that the e-mails identified by the log (provided that they weren't otherwise exempt) weren't themselves subject to the Open Public Records Act (OPRA).  Rather, the Township argued that producing a log would require it to create a new record that does not already exist--something OPRA does not require agencies to do. While the Township's position is understandable, the NJSACOP's argument that producing logs would compromise sensitive police investigations is frivolous because any sensitive information could be redacted from the logs in the same way that such information could be redacted from the e-mails themselves.

Friday, October 24, 2014

After lawsuit threat, State releases list of 228 local units who may have allowed improper pension enrollees.

In July 2012, the New Jersey Office of the State Comptroller (OSC) published a report (on-line here) on towns and school districts that appeared to have been improperly keeping their appointed professionals enrolled in the PERS state pension system despite a 2008 law that required those professionals to be removed from the system.  According to page 7 of its report, the OSC
first obtained data concerning . . . professionals who are providing services to municipalities and school districts (collectively referred to in this report as “local units”) [and] then cross-referenced the names of those professionals with PERS data and developed a list of 332 PERS-enrolled professionals providing such services [that] were retained by 228 different local units.
I then submitted an Open Public Records Act (OPRA) request for the lists of the 228 local units and 332 PERS-enrolled professionals and was denied because disclosure would allegedly violate the professionals' "reasonable expectation of privacy."    More information on my OPRA request and the State's denial is on-line here.

Today, after receiving a lawsuit threat from my lawyer, Richard M. Gutman of Montclair, OSC Records Custodian Robert Shane decided to disclose the list of 228 local units while still suppressing the list of 332 PERS-enrolled professionals.  The list of local units is on-line here.

The list does not identify the county in which each local unit is located.  This makes it impossible to determine whether the "Fairfield" on the list refers to the municipality in Essex or the one in Cumberland County.   And, the presence of a town on this list does not automatically equate to a violation of the PERS or the public trust.  Please consider this list merely as a source of information to aid future research.

Thursday, October 23, 2014

Lawsuit: Kinnelon delinquent on meeting minutes since 2009.

On October 16, 2014, a local woman filed a civil lawsuit against the Borough of Kinnelon (Morris County) seeking to compel the Borough Council and Interim Borough Clerk Karen M. Iuele to approve and make the Council's executive and "workshop" meeting minutes "promptly available" as required by the Open Public Meetings Act (OPMA).

In her lawsuit, Donna Dixon claims that the Kinnelon Council had not, as of this summer, created any written minutes of its nonpublic (closed or executive) meetings since January 1, 2009.  The lawsuit also alleges that the Borough has not created, since 2009, any minutes of its "workshop" meetings that are held on the second Thursday of each month.  The only minutes the Borough has maintained are those of the Council's "regular" meetings held on the third Thursday of each month.

Dixon claims that when she made an Open Public Records Act (OPRA) request for the delinquent minutes in August, Iuele needed a thirty day extension to handle the request. Then, Dixon and the Borough Council released seven sets of closed minutes on September 18, 2014.  According to Dixon, several closed meetings occurred between 2009 and 2014 for which no minutes have yet been released.  She seeks an order compelling the Borough to make all its past minutes available and to develop an enforceable procedure to ensure that future meeting minutes are made promptly available.  She also seeks an order compelling the Borough Council to make its meeting agenda publicly available at least two days prior to each meeting.

Her suit, filed by Walter M. Luers of Clinton, is captioned Dixon v. Borough of Kinnelon, et al, Docket No. MRS-L-2480-14.  No court proceedings are yet scheduled.  A copy of Dixon's lawsuit is on-line here.

Tuesday, October 21, 2014

State may close Bridgeton Port Authority in January.

The transcripts of the Local Finance Board's August 13, 2014 meeting minutes pertaining to the Bridgeton Port Authority are on-line here.  These 22 pages provide a good example of a public agency that has been woefully mismanaged and neglected.  Here's a quote from the transcript:
Here we have an authority that doesn't do any of those things. With all due respect it is a port authority and there isn't a single boat anywhere--or a slip for that matter. They don't have staff and they don't do anything.
Thomas Neff, Chairman
New Jersey Local Finance Board

Saturday, October 18, 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 Paff v. Bergen County, et al.
Bergen County, Docket No. BER-L-7739-14
Hon. Peter E. Doyne, A.J.S.C.
October 16, 2014
Click here for the court's decision.
Click here for file complaint, brief and exhibits.

Summary: List of Internal Affairs Complaints against corrections officers who work in the Bergen County Jail is subject to disclosure under OPRA.  “Attorney General Guidelines” are not a recognized exception to OPRA’s general requirement favoring disclosure of government records.

Thursday, October 16, 2014

Letter to NJ Pensions: Should Gibbsboro's lawyers' PERS termination be retroactive to 2008?

It looks as though Gibbsboro recently took Municipal Prosecutor Higgins and Public Defender Wiggington off the PERS pension rolls because of an investigation by the Pension Fraud and Abuse Unit.  My questions are: a) Will the Pension Fraud and Abuse Unit push for these lawyers' removal retroactive to 2008? and b) If not, would there be a financial benefit to PERS if I were to file a lawsuit to compel retroactive removal?  My letter to the Pension Fraud and Abuse Unit follows:


New Jersey Libertarian Party's
Open Government Advocacy Project
P.O. Box 5424
Somerset, NJ  08875

October 16, 2014

Marc Greenfield
Pension Fraud and Abuse Unit
via e-mail

Dear Mr. Greenfield:

I chair the New Jersey Libertarian Party's Open Government Advocacy Project.  We have recently been investigating the issue of municipal governments', despite the 2007 enactment of N.J.S.A. 43:15A-7.2, seeming unwillingness to wean their independent professionals, such as municipal prosecutors and public defenders, from PERS enrollment.

As a starting point, we began our investigation with Camden County lawyers Timothy Higgins and Charles Wiggington who serve, respectively, as municipal prosecutor and public defender for the Borough of Gibbsboro.  The blog articles we have published so far on our investigation are here and here.

In summary, we have determined that both Higgins and Wiggington were certified by Gibbsboro as being PERS eligible until their termination from PERS effective August 30, 2014.  This morning, I received, via an OPRA request to Gibbsboro, your August 18, 2014 e-mail to Borough Clerk Anne Levy and your colleague Kristin Bell's August 13, 2014 letter to the Borough.  Both the e-mail and the letter are on-line here.

From reviewing all the material, it appears to me that Gibbsboro was carrying Higgins and Wiggington on the PERS rolls, and probably intended to keep carrying them, until the Pension Fraud and Abuse Unit recently decided to conduct its investigation into these lawyers' PERS eligibility.  Under the pressure of your Unit's investigation, Gibbsboro finally threw in the towel and decided to remove the two lawyers from the PERS rolls.

While this is a good thing, it leaves open the question of whether Higgins' and Wiggington's separation from PERS ought to have been retroactive to 2008.  It seems to us at least arguable that if Higgins and Wiggington are not now eligible for PERS, they probably have not been eligible for the last six or so years.

As a public service, we may be interested in filing a lawsuit in lieu of prerogative writs seeking an order compelling the State to retroactively remove Higgins and Wiggington from the pension rolls on the proper date in 2008.  Similarly, we might investigate filing citizen complaints, in accordance with R.7:2-2(a)(1), against Gibbsboro's Certifying Officer and Certifying Officer's Supervisor if they certified to Higgins's and Wiggington's PERS eligibility when it was plain that they were not eligible.
Before embarking on either of these paths, we would like to ask two questions.  First, is the Pension and Fraud Unit's intent to seek retroactive removal of Higgins and Wiggington from the PERS rolls or are you satisfied with these lawyers' removal from the PERS effective August 30, 2014?

Second, if your Unit is not seeking to take any further action and is content with the August 30, 2014 separation date, would a successful effort on our part to roll these lawyers' termination dates back to 2008 have any actual effect on the Pension System?  We do not wish to commence a lawsuit unless success would yield a financial benefit to the PERS and its legitimate enrollees.

Thank you very much for your attention to this matter.  I look forward to hearing from you.

Very truly yours,

John Paff