Haddon Heights settles OPMA lawsuit

On February 21, 2012, Susan Scoblin-O'Neill settled her pro se Open Public Meetings Act (OPMA) lawsuit against Haddon Heights Borough (Camden County). In exchange for dismissal of her lawsuit, the Borough has agreed, among other things, to ensure that its future closed session resolutions "disclose as much information as possible without harming the public interest or the Borough's interest in keeping the matter private." The Borough also agreed to reimburse Susan her $260 in out-of-pocket court costs.

The agreement, which is in the form a release, and not an order filed with the court, is on-line here.

It is important for citizens to learn how to file OPMA lawsuits. Since the OPMA does not contain any provision requiring public bodies to pay successful plaintiffs' attorney's fees, most citizens are understandably reluctant to hire lawyers to bring OPMA cases. Absent a legislative amendment, the OPMA will remain largely unenforced unless citizens file their own lawsuits. Thanks to Susan for stepping up to the plate.

John Paff, Chairman
New Jersey Libertarian Party's
Open Government Advocacy Project

Elk Township passes Open Public Meetings Act policy.

On December 14, 2011, as part of a ruling in an Open Public Meetings Act (OPMA) case, Superior Court Assignment Judge Georgia M. Curio ordered the Elk Township (Gloucester County) Committee to "implement an effective [OPMA] policy . . . within sixty (60) days." Mayor Philip A. Barbaro and the Committee adopted the policy on March 1, 2012 and a copy of it is on-line here.

The majority of the policy summarizes the OPMA and doesn't add any additional protections to the public's interest beyond what is provided by the OPMA itself. The policy does, however, establish an e-mail usage policy. It also requires closed meeting minutes to be a "general summary of the matters discussed" and states that an "advisory body" is subject to the OPMA if it "has the power to eliminate options available to a decision-making body."

The policy applies to the Township Committee as well as the Township's land use boards and other agencies and boards of the Township.

Mostly a win in Camden

At 10 a.m. on Friday, February 10, 2012, Jose Delgado and I appeared before Camden County Assignment Judge F. J. Fernandez-Vina to pursue our Sen. Byron M. Baer Open Public Meetings Act case against the Camden City Board of Education. I appeared in person and Jose, who was on vacation, appeared by way of speakerphone. Background and case documents are available here. (Three open government activists, as well as a member of the board attended and observed. I appreciate the activists' support.)

Follow are the five issues that we presented (as set forth in the blog entry at the link above) and the result for each:

1. How promptly must a government agency publicly disclose the nonexempt portions of its nonpublic (i.e. “closed” or “executive”) meeting minutes?

Going forward, the Camden Board of Education must make the minutes of its closed meetings, redacted only as necessary, publicly available within thirty days of the meeting or three days prior to its next public meeting, whichever comes first. This will require the board to significantly depart from its current practice. As it is, closed session minutes from as early as June 21, 2011 are not publicly available at the present time, even though nearly eight months have elapsed.

2. Does the agency’s claim that it must first “approve” its nonpublic meeting minutes prior to publicly disclosing even redacted versions of them have a basis in law?

No. Since the board must disclose the minutes at least three days prior to its next meeting, it cannot "approve" them prior to disclosure.

3. Must an agency pass a separate, free-standing resolution in order to satisfy the requirements of N.J.S.A. 10:4-13, or is it sufficient for it to pass a motion, which is recorded in the regular meeting minutes?

No. Despite our best efforts, Judge Fernandez-Vina found no basis in law for requiring "free standing" resolutions as opposed to recording the motions in the public meeting minutes.

4. In its N.J.S.A. 10:4-13 motions or resolutions, how specifically must an agency describe the topics it plans to discuss during its nonpublic meetings?

The board must ensure that the motions or resolutions describe each topic to be privately discussed in sufficient detail and with sufficient specificity to allow the public to identify those topics. Judge Fernandez-Vina agreed with Jose and me that descriptions such "Legal Update, Contract Negotiations, Suspensions, Acting Principal-Vets, Resignations, Stipend Production Manager," which were included in the board's February 15, 2011 motion, are inadequate.

5. In its N.J.S.A. 10:4-13 motions or resolutions, how precisely must an agency state the time when and the circumstances under which the discussion conducted in nonpublic session can be disclosed to the public?

Judge Fernandez-Vina did not address this question.

In addition, Judge Fernandez-Vina ordered the board to pay Jose's and my costs of court.

At this point, Jose and I are working with the board's attorney, Lester Taylor, to hammer out the exact language that will be in the court's order. We're also submitting our bill of court costs. When that order and bill become available, I'll post them on-line and notify readers of the links.

John Paff, Chairman
New Jersey Libertarian Party's
Open Government Advocacy Project

April 27, 2012 - Open Public Meetings Act hearing in Bridgeton

Back on August 10, 2010, I attended a meeting of the Bridgeton (Cumberland County) Board of Education. A few days later, I remarked on my blog that "I have rarely witnessed more cavalier and imperious public officials than the members of the Bridgeton Board of Education. I look forward to working with them to improve their compliance with both the letter and the spirit of the Open Public Meetings Act."

After a year elapsed, I made an Open Public Records Act request to the school board to see if its Meetings Act compliance had improved. After reviewing the documents, I filed a pro se lawsuit against the board on October 24, 2011. Today, I filed a motion for summary judgment and asked for a hearing to be scheduled on Friday, April 27, 2012. My motion, with all exhibits, including my lawsuit and the Board's answer, are on-line here.

The compliance issues with the Bridgeton school board are similar to the problems that exist in many public bodies around New Jersey: the executive session resolutions don't advise the public of the issues that are going to be discussed and the executive session minutes don't provide any real detail of the matters that were discussed.

My case will almost certainly be heard by Assignment Judge Georgia M. Curio, who is the top judge for Salem, Gloucester and Cumberland counties. A positive outcome in this case will be helpful in defining the minimum level of detail public bodies in the tri-county area need to include within their closed session resolutions and minutes.

John Paff, Chairman
New Jersey Libertarian Party's
Open Government Advocacy Project
Somerset, New Jersey

OPRA and OPMA bills are reintroduced

Sen. Weinberg's Open Public Records Act and Open Public Meetings Act bills, as introduced, are on-line at OPRA and OPMA.

And, an article describing the bills is on-line here.

John Paff, Chairman
New Jersey Libertarian Party's
Open Government Advocacy Project

Improper meeting notice? No problem.

I don't recall ever before encountering a public agency misusing the "emergency meeting" exception to the Open Public Meetings Act. I did encounter such a violation today by the Election Law Enforcement Commission (ELEC). After determining that it didn't give 48 hours advance public notice of a rescheduled meeting, ELEC held the meeting anyway, blithely finding that to do otherwise "would result in harm to the public interest."

Following is the text of my letter to the Commission.

February 6, 2012

Ronald DeFilippis, Chairman and members of the
Election Law Enforcement Commission
P.O. Box 185
Trenton, NJ 08625-0185 (via Fax to 609-292-7664)

Dear Chairman DeFilippis and Commission Members:

I write both individually and in my capacity as chairman of the New Jersey Libertarian Party's Open Government Advocacy Project to challenge the manner in which the Commission conducted its November 15, 2011 meeting. The minutes of this meeting are on-line here.

According to the meeting minutes, timely notice, in accordance with N.J.S.A. 10:4-8(d), was given for a meeting to take place on November 15, 2011 at 11 a.m. However, the Commission thereafter desired to change the meeting's starting time to 1 p.m. but was not able to give notice of that change until November 14, 2011 at 1 p.m. The Commission, despite being aware that 48-hour advance notice must be given for rescheduled meetings, decided to hold the meeting anyway.

The Commission attempted to justify its improperly noticed meeting by passing a motion labeling the meeting as an "emergency meeting" in accordance with N.J.S.A. 10:4-9. The minutes recite that "Executive Director Brindle said the Commission could not have foreseen the need for the change in the meeting time when adequate notice could have been provided [and] that it in the public interest to deal with matters of importance and of concern to the public interest as set forth in the agenda scheduled for today." The Commission, by a 3-0 vote, then passed a motion holding that delaying the meeting to allow for proper public notice "would result in harm to the public interest." The meeting then continued as usual. Meeting minutes were approved, a "more visually attractive, more interactive" PowerPoint presentation was reported, and other business was attended to.

This meeting was held in violation of the Senator Byron M. Baer Open Public Meetings Act. As you are aware, the Legislature found that the public's ability to observe public meetings is "is vital to the enhancement and proper functioning of the democratic process." N.J.S.A. 10:4-7. Toward that end, the Legislature wished to "insure the right of . . . citizens to have adequate advance notice of and the right to attend all meetings of public bodies at which any business affecting the public is discussed or acted upon." Ibid.

Through N.J.S.A. 10:4-9, the Legislature carved out an exception to properly noticed meetings when a public body needs "to deal with matters of such urgency and importance that a delay for the purpose of providing adequate notice would be likely to result in substantial harm to the public interest." N.J.S.A. 10:4-9(b)(1). This exception is clearly meant for situations that are truly dire and emergent--something in the nature of appropriating funds to repair a bridge that was washed out by a flood.

Does the Commission seriously believe that approving prior meeting minutes, reporting on the new PowerPoint presentation and the other such business was urgent and important enough to justify an emergency meeting? Even if there was an item that was truly urgent, N.J.S.A. 10:4-9(b)(2) restricts emergency meetings to only those matters of proper urgency and importance.

The citizens of this State have a right to expect their public bodies to turn sharp corners when dealing with the notice requirements for public meetings. The actions of the Commission on November 15, 2011 fell well short of that expectation. Be assured that I ever hear of another similar occurrence by the Commission, I will file suit seeking relief under both N.J.S.A. 10:4-15 and N.J.S.A. 10:4-16 as well as my costs of court without further notice.

Very truly yours,

John Paff, Chairman
New Jersey Libertarian Party's
Open Government Advocacy Project

cc. Bruce Solomon, Esq. Attorney General's Office (via e-mail to bruce.solomon@lps.state.nj.us)
Andrew M. Baron, Esq. ELEC Legal Counsel (via Fax to 732-382-5914)

Gibbsboro/Voorhees OPRA suit concluded

I've previously written about my Open Public Records Act (OPRA) case against the Township of Voorhees and the Borough of Gibbsboro, both in Camden County. See my blog entries of October 12, 2011 and October 20, 2011.

To summarize, attorney Walter Luers and I sued both Voorhees and Gibbsboro for records arising out of a December 30, 2009 incident in which a uniformed Voorhees police officer, while in Gibbsboro behind the wheel of his parked patrol car, was slapped repeatedly by his wife. (If you haven't listened to the 911 calls made by the alarmed citizens who witnessed this incident, you might want to--they're interesting, to say the least.)

The case is now over, and since we won on most issues, the court ordered Voorhees to reimburse the court filing fees I paid plus Walter Luers' attorney fees of $3,375 plus a $675 "contingency enhancement" for a total of $4,443.57. The court's January 25, 2012 final order is on-line here.

One of the issues we did not win was disclosure of the Gibbsboro Police Department's report of this incident as well as some radio transmissions made by Voorhees police. Camden County Superior Court Assignment Judge Francis J. Orlando, Jr., after reviewing these records in camera, ruled that they were protected by an expungement order obtained by the officer's wife (i.e. the court expunged the assault charges and related records arising out of the incident).

Yet, the wife's expungement petition was filed after I submitted my OPRA request for the records. And, the court would have most likely ordered disclosure of those records but for the expungement order. The upshot is that Voorhees' and Gibbsboro's denial of the records, while probably unlawful initially, became lawful because the expungement order was entered prior to the hearing at which my OPRA rights were determined. So, sometimes a citizen's entitlement to a criminal case record depends upon whether the OPRA hearing occurs before the expungement hearing or vice versa. (It strikes me that something as important as the public's right to know shouldn't depend on something as fortuitous as the court's schedule.)

Walter and I did, however, win access to to a redacted version of the assaulted officer's "shift log" and the "chat log" that captures text messages sent to each other by Voorhees officers when the reports came in about a fellow officer being assaulted by his wife. (By comparing the four digit officer ID numbers in the shift log to those in the chat log, you can identify the officers who were chatting.)

All in all, this case raised some interesting questions regarding the relationship of expungement actions to OPRA rights as well as the efficacy and utility of expungement in a time when nearly everything is or can be accessible on the Internet.

It also raises questions as to the process through which information makes its way to the "police blotter" section of the local newspaper. When couples who aren't within the law enforcement community have a dispute and police are summoned, their names may be printed in the newspaper. (See, e.g. the March 30, 2011 entry here in the ManchesterPatch.) If one of the parties to a physical dispute is a police officer, I believe that the police are likely to withhold the incident from the newspapers.