Sunday, November 4, 2018

Lawsuit seeks ruling that Open Public Meetings Act violation implicates attorney fee-shifting provision of Civil Rights Act.

On Wednesday, January 9, 2019, Mercer County Assignment Judge Mary C. Jacobson will hear John Paff v. Trenton Board of Education, Docket No. MER-L-2241-18.  At issue is whether the Board's vote to give Superintendent Fred McDowell a $25,000 bonus should be voided out because the vote was taken after the Board's September 24, 2018 meeting had adjourned and the public had departed.  A second, more far-reaching issue is whether the Board, which violated the Open Public Meeting Act by taking this vote after the meeting had adjourned, also violated rights protected by the New Jersey Civil Rights Act, putting the Board on the hook for court costs and attorney fees.

The Board's award of $25,000 to McDowell and the manner in which was done are controversial, were widely reported in the media and caused the Trenton Education Association and City Council members to demand Board President Gene Bouie's resignation.  But, unlike the Open Public Records Act (OPRA), which requires government agencies to pay the attorney fees of successful OPRA plaintiffs, the Open Public Meetings Act (OPMA) requires each party to pay its own legal fees which dissuades most citizens from enforcing their rights under the Act.  If Jacobson rules that the Trenton Board's OPMA violation also constitutes a violation of the New Jersey Civil Rights Act, she could award attorney fees because the Civil Rights Act expressly permits her to do so.

The plaintiff is being represented by Donald M. Doherty of Ocean City.

Monday, August 27, 2018

OPRA lawsuit seeks Cumberland County's settlement agreement with former jail guard who was internally charged with bringing contraband into jail for two female inmates with whom he allegedly had sex.

On Tuesday, October 9, 2018 at 9 a.m., Cumberland County Superior Court Assignment Judge Benjamin C. Telsey will hear argument in Libertarians for Transparent Government (LFTG) v. County of Cumberland, et al, Docket No. CUM-L-609-18.  At issue is whether the County may lawfully suppress its settlement agreement with a former corrections officer who was allowed to retire in good standing, with a pension, after having been internally charged with "having inappropriate relationships with two inmates[,] bringing contraband to an inmate, and making up an alias which enabled him to provide [an inmate] with money and to correspond with her[.]"  The County's opposition was filed on September 27, 2018.

According to the minutes of its March 12, 2018 meeting, the Police and Firemen's Retirement System (PFRS) Board approved former Cumberland County jail guard Tyrone Ellis' application for "special retirement" which allowed Ellis to receive a monthly pension benefit of $2,326.12 ($27,913.44 annually) after imposing a "partial forfeiture" of 5.2 years against his 25.2-year career, leaving him with 20 years of pensionable service.  According to the Board, the County filed disciplinary charges against Ellis on August 23, 2016 for having "inappropriate relationships" with two inmates, identified only by their initials J.C. and L.D., and bringing contraband into the jail, including bras, underwear, cigarettes and a cellphone.  L.D. had told investigators that she had a consensual sexual relationship with Ellis starting in March 2015, when she was not incarcerated, which continued after she was put in jail in April 2015.  According to the minutes, L.D. and Ellis engaged in sexual intercourse in the men's locker room in August of 2015 and Ellis sent L.D. "money, written letters, and provided her with a cell phone and cigarettes."  J.C. told investigators that although she and Ellis did not have sex in the jail, she did have sex with him when she was not incarcerated and that he gave her cigarettes when she was incarcerated.

(Note: In 2017, an inmate named Jennifer Cantoni, who may or may not be the same inmate as J.C., filed a lawsuit claiming that she was subjected to non-consensual sex by several jail guards while an inmate at the Cumberland County Jail.  In her lawsuit, Cantoni claimed that Ellis "would find a spot in the hallway that was not covered by surveillance, and coerce [her] into performing oral sex on him."  She accused Officer John Berry of coercing her to engage in "acts rang[ing] from oral sex to sexual intercourse" and alleged that Lieutenant Brad Pierce forced her to perform oral sex on him.  Other similarly accused officers officers are also named in the lawsuit.)

According to the minutes, Ellis resigned but "agreed to cooperate" with County investigators after learning that his resignation would not stop the disciplinary charges from proceeding against him.  His cooperation led to disciplinary charges being filed against four other corrections officers.  On March 1, 2017, according to the minutes, the County and Ellis entered into a settlement agreement "which permitted Tyrone Ellis to retire in good standing and all charges listed on the [disciplinary notice] were withdrawn."

LFTG, a non-profit which I serve as executive director, filed an Open Public Records Act (OPRA) request with Cumberland County seeking a copy of the settlement agreement as well as Ellis' "name, title, position, salary, length of service, date of separation and the reason therefor."   In his July 30, 2018 response, County Counsel Theodore E. Baker wrote that Ellis, who most recently was paid a $75,575 annual salary, "was terminated" even though he also acknowledged that a settlement agreement between Ellis and the County existed.  Baker denied access to the settlement agreement claiming that it was a "personnel record."

In a brief filed on LFTG's behalf, Hackensack attorney CJ Griffin argued that the settlement agreement was an employment contract and not a personnel record. "If Cumberland County's argument is accepted, then agencies would be able to shield the public from knowing about separation agreements, severance agreements, or other settlement agreements that resolve internal disputes with employees. This undoubtedly would lead to corruption, as it would allow the transfer of public funds to public employees via confidential agreements with no public oversight at all," Griffin wrote.  "[A] settlement agreement with an employee does not become a 'personnel record' merely because the agency says so."

LFTG's lawsuit also claims that Baker may have "misrepresented" the reason for Ellis' separation from employment by stating that he was "terminated."  Griffin wrote in her brief that the County "surely intended to make it appear as if they took strong action against Ellis."

Thursday, August 23, 2018

Does OPRA require a Township to inform the public if a cop has been paid for over three years without having to report to work?

On Tuesday, October 9, 2018 at 2 p.m., Burlington County Superior Court Assignment Judge Ronald E. Bookbinder will hear argument in Libertarians for Transparent Government v. Township of Eastampton, Docket No. BUR-L-1158-18.  At issue is whether Eastampton Township must publicly disclose whether one of its police officers has been on paid suspension for over three years.

Earlier this year, I received an anonymous tip that Eastampton Police Officer Diana Welthy (previously known as both Diana Shimonovich and Diana Felenczak) had been on paid leave for three years.  My search of court dockets disclosed that Welthy had filed a sexual harassment lawsuit against her police supervisors in April 2016 that was resolved by a November 15, 2017 Consent Order that "held [her lawsuit] in abeyance because of disciplinary charges filed against [Welthy] by the police department." 

In her lawsuit, Welthy acknowledged that she was suspended and had her badge and weapon taken away on April 27, 2015.  Since the Consent Order stated that "those disciplinary charges [were] relevant to" her lawsuit, it is indeed plausible that the anonymous tipster is correct in stating that Welthy has been on paid suspension from April 27, 2015 through to the present.  (My research also found that Welthy (then Diane Felenczak) sued Eastampton on March 4, 2010 for gender-based harassment.  In April 2011, Welthy and the Township entered into a confidential settlement agreement under which Welthy received $42,500.)

The non-profit for which I serve as executive director, Libertarians for Transparent Government, submitted an Open Public Records Act (OPRA) request to Eastampton for Welthy's "payroll record" and explained that OPRA requires local governments to disclose whether an employee is being paid while not reporting to work.   In its response, Eastampton provided only an "Employee Maintenance" report that did not provide Welthy's actual salary and did not give any information on whether she was being paid for time when she was not working.   (According to DataUniverse, Welthy is earning $91,888 per year from Eastampton.)

My non-profit, represented by CJ Griffin of Hackensack, filed the OPRA lawsuit against Eastampton because we believe that the public, especially Eastampton taxpayers, have a right to know whether or not upwards of $300,000 has been paid to Officer Welthy who may not have worked a single shift for over three years.

Tuesday, July 31, 2018

Lawsuit seeks CDR filed against Bridgeton police detective.

Update: 11/03/18: In an October 30, 2018 order, Assignment Judge Benjamin C. Telsey ordered Bridgeton to disclose the CDR-1 Summons and Complaint against Detective Acevedo and to pay my non-profit's attorneys fees and court costs.
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On July 20, 2018, Libertarians for Transparent Government, a New Jersey Non-Profit Corporation (LFTG) (for which I serve as executive director) filed a lawsuit against the City of Bridgeton (Cumberland County) due to its refusal to produce a CDR--a summons-complaint form that alleges a criminal or disorderly persons offense--filed against one of its police detectives.

This history of the matter is as follows. On October 25, 2017, LFTG filed an Open Public Records Act (OPRA) request seeking, among other records, a CDR that I learned had been filed in 2017 against Detective Christian Acevedo by New Jersey State Troopers operating out of the Woodstown Barracks.  LFTG stated in its OPRA request that it was making the request to Bridgeton instead of the State Police because "the State Police are notoriously slow in responding to OPRA requests."

In its November 6, 2017 response, Bridgeton claimed that the CDR was "not generated through this jurisdiction" and that it was exempt because there was an "ongoing investigation."  On November 13, 2017, LFTG reached out to Bridgeton's attorney, Rebecca J. Bertram, because the City's November 6th response did not comply with OPRA.  First, LFTG pointed out, the fact that another police agency might have generated the CDR does not matter if Bridgeton actually possesses a copy of that CDR.  OPRA covers records that are "received" by a government agency, not just those that are "made" by the agency.  Second, LFTG argued that OPRA's "ongoing investigation" exception embodied within N.J.S.A. 47:1A-3 does not apply to records that were "open for public inspection, examination or copying before the investigation commenced."  Accordingly, if Bridgeton had a copy of the CDR and if the CDR was publicly available before Bridgeton started its investigation into Acevedo (most CDRs are considered public at the moment they are filed in a court), then the CDR ought to have disclosed in response to LFTG's OPRA request.

On December 6, 2017, Ms. Bertram drafted, but admittedly did not send, a response stating that the City relied upon former Assignment Judge Georgia M. Curio's December 2016 order in Heather Grieco v. Regional Board of Education, Docket No. SLM-L-162-16.  In that case, Judge Curio ruled that a criminal complaint filed against a school board employee became exempt as a "personnel record" when it was placed in the employee's personnel file.  Unfortunately, no appeal was taken from Judge Curio's ruling.    Bertram's response, however, expressly admitted that "[t]he City does have a copy of a CDR filed against Officer Acevedo and is held by the Internal Affairs Department of the Bridgeton Police Department."

In his legal brief, Clinton-based attorney Walter M. Luers, who is representing LFTG in this action, argued that the CDR, which was filed prior to the Internal Affairs investigation's inception, "did not become retroactively confidential."  Luers also argued that CDRs are filed with a court and "enjoy a strong presumption of public access pursuant to Court Rule 1:38."

No hearing has yet been scheduled.  The matter will very likely be heard by Assignment Judge Benjamin C. Telsey within the next several weeks.  Those who are interested in following the case on the on-line ACMS system should reference Libertarians for Transparent Government v. City of Bridgeton, et al, Docket No. CUM-L-504-18.

Thursday, July 26, 2018

Judge: OPRA requires disclosure of golf club's bid to provide recreational amenities at Liberty State Park.

On July 25, 2018, Mercer County Assignment Judge Mary C. Jacobson ordered the New Jersey Department of Environmental Protection (NJDEP) to disclose the sole bid that it received in response to its Request for Proposal (RFP) for recreational amenities in the Caven Point area of Liberty State Park in Jersey City.

The NJDEP and the bidder, Liberty National Golf Club, which operates a golf course adjacent to the Caven Point area, both opposed public disclosure of the bid citing the Open Public Records Acts' (OPRA) competitive advantage exception and arguing that the bid contained confidential and proprietary information.

The plaintiff in the OPRA case, Steve Ramshur, argued that the RFP itself warned bidders that their submissions would be public records and that no competitive disadvantage would result from disclosure because the bidding period had already been closed at the time the OPRA request was received.  "The disclosure of a bid only benefits competitors while the bidding process is open," wrote Ramshur's attorney Walter Luers. "Limiting access to prior bids or responses actually hurts competition . . . because it reduces information that is available to other potential bidders who can perhaps offer a better deal in a future round of bidding."  The legal briefs filed by Ramshur, the NJDEP and Liberty National are on-line here

The wording of the orders suggest that Judge Jacobson will likely allow the NJDEP to continue to withhold disclosure of Liberty National's bid if an appeal is taken from her ruling.  Judge Jacobson also ordered the NJDEP to pay Ramshur's court costs and attorney fees.

Tuesday, June 19, 2018

Names of fired public employees, identified only by their employee numbers, can be obtained through OPRA.

The minutes of some public agencies, often school districts, refer to agency employees by number rather than by name.  For example, the Perth Amboy (Middlesex County) school board's November 2, 2017 meeting minutes state that a majority of the Board (Board members Obdulia Gonzalez and Anton Massopust voted "no") voted to terminate "employee #XXX671" and "employee #XXX985."  This makes it difficult for the public to know which employees have been fired.  (Interestingly, the agenda of the same meeting stated that the Board had planned on approving "a settlement agreement and release agreement" for the same two employees.)

Section 10 of the Open Public Records Act (OPRA), fortunately, requires that "an individual’s name, title, position, salary, payroll record, length of service, date of separation and the reason therefor, and the amount and type of any pension received shall be a government record."  This means that in most cases a person can obtain the name of an employee by making an OPRA request even if the agency tries to obscure the employee's identity in its meeting minutes.

In this case, my non-profit submitted an OPRA request seeking the following:
1. For employee #XXX671, his or her "name, title, position, salary, length of service, date of separation and the reason therefor." See N.J.S.A. 47:1A-10.
2. For employee #XXX985, his or her "name, title, position, salary, length of service, date of separation and the reason therefor." See N.J.S.A. 47:1A-10.
The custodian's response, which is on-line here, contains the full names, ending salaries and years served by the School Security Officer and Custodian who were "terminated for cause." 

Monday, June 4, 2018

Appeals court rules that Union County jail's inmate suicide and overdose fatality incident reports are disclosable under OPRA.

On June 4, 2018, a two-judge panel of the New Jersey Superior Court, Appellate Division affirmed a Union County trial judge's January 3, 2017 ruling that incident reports of Union County Correctional Facility inmate deaths caused by suicides and drug overdoses are, subject to appropriate redactions, subject to disclosure under the Open Public Records Act (OPRA).

Union County based its denial of lawyer Conrad J. Benedetto's OPRA request on an Administrative Code provision that designates inmates' medical and psychiatric records as confidential and exempt from disclosure.  The trial judge, in a January 3, 2017 decision, disagreed with the County's position because Benedetto was seeking incident reports not medical records and ordered the County to disclose the records after redacting personal identifiers.

The County asked the trial judge to reconsider, arguing for the first time that the County did not keep logs or records of inmate deaths and that such information was only kept in each inmate's medical records.  Notably, the County did not offer an affidavit or certification supporting this claim and the judge expressed disbelief that the County did not maintain records related to inmates who died in jail.  The County appealed.

The Appellate Division judges also faulted the County for not submitting an affidavit or certification from a jail official supporting its claims and for instead asserting unsupported facts within its legal brief.  The panel ruled that assertions of fact not contained in a sworn affidavit or certification are not considered evidence and that the trial judge correctly rejected them.  Accordingly, the panel affirmed the trial court's ruling.

The Appellate Division panel's opinion is on-line here.  Benedetto was represented by Walter M. Luers of Clinton.  The County was represented by Assistant Union County Counsel April C. Bauknight.