Saturday, June 18, 2016

Borough has three official newspapers. It seems that only one was notified of a special Borough Council meeting and that notification was late.

Following is Libertarians for Transparent Government's letter to the Mayor and Borough Council.


Dear Mayor and Council:

As our name implies, Libertarians for Transparent Government is a non-profit corporation dedicated to improving transparency in New Jersey government.  The Jamesburg Borough Council's compliance with the Open Public Meetings Act came to our attention after we read the following on the sixth page of the Council's April 20, 2016 public meeting minutes
Tom VandeSande — 2 Fernwood Lane — Mr. VanDeSande requested a second public hearing since we had it on our agenda. His concern was with a notice that was placed in the newspaper on March 25, 2016 advertising a special meeting that was held on March 23, 2016. Administrator Jawidzik explained that it was not an advertisement, but only a notice that the newspaper didn't even have to publish.
Based on this, we made an Open Public Records Act (OPRA) request and received a response from Acting Clerk Sue Boulogne.  Both the request and response are on-line here.

Boulogne's response strongly suggests that the public was not properly notified of the Borough Council's March 23, 2016 special meeting.

N.J.S.A. 10:4-8(d) states:
“Adequate notice” means written advance notice of at least 48 hours, giving the time, date, location and, to the extent known, the agenda of any regular, special or rescheduled meeting, which notice shall accurately state whether formal action may or may not be taken and which shall be (1) prominently posted in at least one public place reserved for such or similar announcements, (2) mailed, telephoned, telegrammed, or hand delivered to at least two newspapers which newspapers shall be designated by the public body to receive such notices because they have the greatest likelihood of informing the public within the area of jurisdiction of the public body of such meetings, one of which shall be the official newspaper, where any such has been designated by the public body or if the public body has failed to so designate, where any has been designated by the governing body of the political subdivision whose geographic boundaries are coextensive with that of the public body . . .
Actual newspaper publication is not required.  The meeting notice must be sent early enough so that the newspaper, if it chooses to, could publish it at least 48 hours in advance of the meeting.  See, Worts v. Upper Township, 176 N.J.Super. 78 (Ch.1980). 

Resolution 026-01-06-16, as reflected in the January 6, 2016 Borough Council meeting minutes, states:
The Home News Tribune, Star Ledger and the Cranbury Press are hereby designated for the year 2016 as the official newspapers for the Borough of Jamesburg in the County of Middlesex for the publication of all legal notices and advertisements of the Borough and all its Boards, Bodies, Committees, Offices and Agencies, as required by N.J.S.A. 40:53-1, and the statutes in such case made and provided.
From all this, one would expect that Acting Clerk Boulogne would have sent timely notice of the March 23, 2016 to all three of the Borough's official newspapers.  Yet, the absence of e-mails to the Home News and Star Ledger in Acting Clerk Boulogne's response to our OPRA request suggests that those two newspapers were not notified at all.  And, it appears that the remaining newspaper--the Cranbury Press--received it notification too late.

Ms. Boulogne, in her response to our request, disclosed only one e-mail being sent on March 17, 2016 to legalnotices@centraljersey.com.  That e-mail address is for the Packet Media Group which consists of five newspapers, one of which "The Cranbury Press" which, according to the newspaper's website, publishes on Fridays

So, if the Borough sent an e-mail on Thursday afternoon to a paper that publishes on Friday, we seriously doubt that the e-mail would have been in time to meet the Press's publication deadline for the March 17th edition.  Having missed that deadline, the first time that the notice could have been published was on March 25, 2016, which is consistent with Mr. VanDeSande's statement.

In sum, it appears that the public was not properly notified of the Borough Council's March 23, 2016 special meeting.  Of the three official newspapers designated by the Council, only one was notified and that notification was late.

Would you be good enough to discuss this issue at your July 20, 2016 meeting?  We would greatly appreciate learning your thoughts on this matter.

Thursday, June 9, 2016

OPRA lawsuit seeks nature of conduct underlying harassment complaints and terms of separation deal that Township made with resigned mayor.

On April 25, 2016, I blogged about a South Jersey mayor's abrupt resignation which he originally attributed to being "too busy in life" but later appeared to have been motivated by harassment complaints filed by four Township employees.  This week, a new Open Public Records Act (OPRA) lawsuit has been filed that challenges the denial of records related to the harassment matters and the Township's manner of dealing with them.

The lawsuit, which was filed on June 6, 2016, seeks records revealing the nature of the conduct underlying the four employee harassment complaints apparently directed toward former Commercial Township (Cumberland County) Mayor Judson Moore, Jr as well a "Signed and Sealed Memorandum of Understanding" that sets forth the terms of conditions relating to Moore's March 2016 resignation.  The lawsuit specifically asks that the names of the employees who were allegedly harassed and identifying information regarding them remain confidential.  The lawsuit chronicles Moore's history of public service and notes that he had previously separated from Bridgeton, Somers Point and Fairfield under unusual circumstances.

The lawsuit, which is captioned Libertarians For Transparent Government v. Commercial Township, et al, Docket No. CUM-L-402-16, will be heard by a Cumberland County Superior Court judge, most likely Assignment Judge Georgia Curio, in the next several weeks.  Plaintiff is being represented by CJ Griffin of Hackensack.

Wednesday, June 8, 2016

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.

The Innisfree Foundation v. Cherry Hill Board of Education, et al.
Camden County, Docket No. CAM-L-3902-15
Hon. Deborah Silverman Katz, A.J.S.C.
February 9, 2016
Click here for the court's decision.

Summary:  School board violated OPRA by totally suppressing settlements of special education lawsuits.  Rather than complete suppression, the school board was under a duty to redact students' personal identifying information from those settlements. School board to pay plaintiff's attorney fees and costs.

Tuesday, June 7, 2016

William Paterson University sued for prompt access to informal settlement records.

On June 30, 2016, Passaic County Judge Thomas F. Brogan will hear an Open Public Records Act (OPRA) lawsuit that challenges William Paterson University's denial of records that would reveal the amount of a settlement that resolved a civil case against the University. 

At issue is the settlement of William J. Brennan v. William Paterson College, Federal Case No. 2:11-cv-06101 in which Brennan sued the University for refusing to air his programming on two local cable television channels. On March 15, 2016, the federal court issued an order dismissing Brennan's lawsuit because it "has been settled" and on March 31, 2016, Libertarians for Transparent Government, a NJ Nonprofit Corporation (LFTG) filed an OPRA request for both the formal settlement agreement as well as informal settlement communications between the parties if a formal settlement agreement had yet to be executed.  William Paterson contended that since a formal settlement agreement signed by all parties did not yet exist, it was under no legal duty to provide informal settlement correspondence that revealed the amount and terms of settlement.

LFTG's position, as articulated in the lawsuit and brief filed by Richard M. Gutman of Montclair, is, in essence, that while litigation correspondence between a government entity and its insurers and attorneys is privileged, such correspondence loses its privilege when it is shared with the other parties to the lawsuit.  To shield from public view correspondence that all parties to the lawsuit have received keeps no one in the dark except the public--exactly those that OPRA seeks to keep informed.

Monday, May 16, 2016

NJ Senate Committee to hear "New Jersey Open Data Initiative" on May 23rd.

On May 23, 2016, 1 p.m. the Senate State Government, Wagering, Tourism & Historic Preservation Committee will hear and take testimony on Senate Bill No. 727, a measure that would require State departments to cause their "data sets" to be uploaded to an "easily navigable Internet website."  The bill is sponsored by South Jersey Democrats Nilsa Cruz-Perez and Jeff Van Drew.

The hearing, which will be held in Committee Room 7 on the second floor of the State House Annex in Trenton, is open to the public and those who attend may present the Committee with oral testimony.  As an alternative, anyone can submit written testimony via fax to 609-777-2998 or e-mail to OLSAideSSG@njleg.org.

Those who wish to attend are cautioned to first call the Committee's office at 609-847-3890 to make sure that S-727 is still on the agenda and to verify that the hearing hasn't been moved or postponed.

Monday, May 9, 2016

Gloucester County Fire District ordered to comply with Meetings Act.

In a May 6, 2016 Order, Assignment Judge Georgia M. Curio issued an injunction requiring the Harrison Township (Gloucester County) Fire District to "strictly adhere to [the Open Public Meetings Act] in all respects including, but not limited to, the keeping of minutes."

During oral argument on April 21, 2016, Curio noted that the Fire District's failure to keep closed meeting minutes on five separate occasions over a three year period violated the Meetings Act and constituted a pattern of noncompliance that warranted injunctive relief.  Curio stated that the Fire District would be "hard-pressed" to deny its actions are willful or knowing if it violates the Meetings Act again.

The case is captioned Donald Baldwin v. Harrison Township Fire District, et al, Docket No. GLO-L-1713-15 and Baldwin was represented by the Law Office of Walter M. Luers.


Sunday, May 8, 2016

The state won't enforce the law, so I've got to go town to town.

For years, I have been trying to get state level enforcement of a provision in the Local Public Contracts Law that requires local governments to publish in the local newspaper the dollar amounts of the profession services contracts that it awards without competitive bidding.  Such notification is clearly required by state statute but many local governments simply ignore the requirement.

In early 2015, I was heartened by the Department of Community Affairs' initial decision to adopt a rule, in response to the New Jersey Libertarian Party's (NJLP) Petition for Rulemaking, that would enforce the dollar amount disclosure requirement. Unfortunately, the Division let the rule proposal expire.  The NJLP still holds on to hope and has filed another, similar Petition for Rulemaking on March 16, 2016.

Since the available evidence suggests that there is reluctance at the state level to impose accountability requirements on local officials, I have taken to enforcing the dollar amount disclosure requirement on a town by town basis.  This is, of course, highly inefficient and time consuming, but I don't see any other option given New Jersey's past treatment of this issue.

The first municipality in which I have attempted local enforcement is the small Borough of Peapack and Gladstone in Somerset County.  The Borough wasn't publishing the dollar amounts of its no-bid professional services contracts and wasn't publishing the no-bid contracts it was awarding to its municipal prosecutor and public defender at all. (The Borough genuinely believed that publication of the prosecutor's and defender's contracts wasn't necessary because it was part of a joint municipal court.)

I have secured from that Borough an April 29, 2016 letter in which the Borough agreed, going forward, to fully comply with the dollar amount disclosure statute.  One down and probably another couple hundred to go.