Tuesday, July 22, 2014

Hearing before Judge Johnson in Paff v. Cape May Prosecutor

Attorney Richard Gutman of Montclair and I appeared before Judge Nelson C. Johnson at 11 a.m. on July 22, 2014 in Atlantic City to argue the Open Public Record Act (OPRA) and common law right of access case of Paff v. Cape May County Prosecutor.  This is the case where I am seeking "Brady letters" that may have been issued regarding three Wildwood Crest police officials.  Background on the case and links to the filed case documents are on-line here.

Our main argument was that Cape May hadn't submitted any evidence, in the form of affidavits or certifications, demonstrating that the records we sought were not subject to disclosure.  Under OPRA, the burden of proof is on the government to show that a record is not subject to disclosure.

Our secondary argument was that even if the court accepted Cape May's brief as "evidence," it was so tentatively and uncertainly written that it didn't adequately explain why access to the documents should be denied.

Judge Johnson agreed with our characterization of the County's responsive brief. He even remarked that he was astonished at how mealy-mouthed the response was and used following sentence from the brief--full of "mays" and "mights"--as an example of its indecisiveness:
Similarly, any such responsive documents which may exist might be the result of an investigation of matters by the CMCPO for a determination of criminal wrongdoing and may include the CMCPO's findings and analysis thereof.
When the County's attorney, James B. Arsenault, presented his argument it became obvious that Prosecutor Taylor wanted him not to reveal much, if anything, about the nature of the withheld documents.  He remarked that "law enforcement records need to be held close to the vest."

Mr. Arsenault then produced a one-page document which he referred to as a "Vaughn Index" (on-line here) and gave it to Judge Johnson with a copy to Mr. Gutman.  Typically, such documents are submitted to the court and one's adversary well prior to the hearing so that everyone has time to review them.  This is the first time I've ever seen such a document being presented during the hearing.

Cape May's "Vaughn Index" indicated that the there were eight pages of responsive documents consisting of four letters written by the Prosecutor's Office to Wildwood Crest Mayor Carl Groon.  The letters concerned "Investigation of Captain Dave Mayer" and "Investigation of Lieutenant Michael Hawthorne."  The "Vaughn Index" did not describe the nature or content of the letters.  Judge Johnson wondered aloud whether the withheld letters were even responsive to my request for "Brady letters."

Mr. Arsenault then produced a sealed envelope containing unredacted copies of the four letters and requested Judge Johnson to privately read them (i.e. review the in camera) and then make a decision on whether or not they should be released to me.  Mr. Gutman argued that giving the judge the letters for his private review without describing the letters' nature and content to me was unfair because it prevented me from being able to effectively argue why the letters should not be suppressed.

Judge Johnson said that while he agreed with Mr. Gutman, he still felt that he needed to read the letters privately to determine whether they should be disclosed to me in full or redacted form.  He promised a prompt decision in this case.  Once I receive Judge Johnson's decision, I will post it on this blog.

Friday, July 11, 2014

Township rebuffs attempts to learn how much is being paid to former CFO's consulting company.

A Township CFO resigns to take a county job.  Then the Township contracts with a firm that is at least partially owned by its former CFO to provide "day-by-day financial consulting services."  Then, the Township stonewalls the media's attempt to find out how much the consulting company is going to be paid under the newly minted contract. Only in New Jersey.

Following is my OPRA request to the Township to figure out how much tax money the former CFO's consulting firm is going to receive.
July 11, 2014

Yancy Wazirmas, Clerk
Parsippany-Troy Hills Township Clerk
1001 Parsippany Blvd.
Parsippany, NJ 07054
Via e-mail only to YWazirmas@parsippany.net

Dear Mr. Wazirmas:

Please consider this letter my request for government records pursuant to the Open Public Records Act and the common law right of access.  The request for records is at the bottom of this letter.


The July 9, 2014 Parsippany Focus article "Kovalick’s company hired to perform financial consulting services" indicates that after Township Chief Financial Officer Joseph A. Kovalick, Jr. resigned from his position, he took a job with Morris County.  Then, according to the article, the Township Council passed a resolution to award a no-bid contract to EPIC Solutions, LLC "to provide day-by-day financial consulting services as directed by the municipality’s [new] Chief Financial Officer."  The punch line is that Kovalick is "one of the principals of Epic Solutions, LLC.

The article goes on to relate that the Township refuses to release salient details, such as "how many hours the consultant will be working in Parsippany [or] at what rate the consultant will be paid."  According to the article, the Focus sought a copy of the contract but was told that it "hasn’t been signed by the Administration (meaning Mayor James Barberio) and given to the Clerk’s Office yet.  That could take up to 30 days."

On July 10, 2014, I requested "immediate access" to the contract and you responded today:

We are in receipt of your OPRA request for "the Professional Service Agreement with EPIC Solutions, LLC."  The document you are seeking is not in the possession of the Custodian of Records. The resolution adopted by  the Township Council at their meeting on July 8th states: "That the Township Council hereby authorizes execution by the Mayor and witness by the Township Clerk of a professional services agreement with EPIC Solutions, LLC, in a form acceptable to the Township Attorney." Until such time that the completed document is received by this office, it remains as an exemption under N.J.S.A. 47:1A-1.1: "Inter-agency or intra-agency advisory, consultative or deliberative material."
I think that what the Focus and its readers really want to know is the maximum "up to" amount that can be paid to Epic under the contract.  According to N.J.A.C. § 5:30-5.4(a)(1), whenever a contract is pending approval by the governing body:
The chief financial officer or certifying finance officer, as appropriate, charged with the responsibility of maintaining the financial records of the contracting unit shall certify in writing to the governing body the availability or lack thereof of adequate funds for each contract which is pending approval by the governing body. Said certification shall designate specifically the line item appropriation(s) of the official budget to which the contract will be properly charged, ensuring that the same funds shall not be certified as available for more than one pending contract. Said officer shall be solely responsible for the accuracy of the certification.
It appears, therefore, that this written encumbrance certification would disclose the maximum amount that can be disbursed under this contract.

Records Requested:

The certification of fund availability, as required by N.J.A.C. § 5:30-5.4(a)(1), related to the award of the contract to EPIC Solutions, LLC.  Please provide via e-mail.

Very truly yours,

Wednesday, July 2, 2014

Prosecutor: Release of dog bite video could "further inflame" the public, cause witness amnesia and violate the alleged victim's privacy.

As I reported on June 24, 2014 (here), I filed suit on June 10, 2014 seeking public disclosure of a video that allegedly shows a police dog being intentionally sicced on a 57-year-old woman.  The dog's handler, Tuckerton Police Corporal Justin Cherry, was charged with second-degree official misconduct and third-degree aggravated assault in connection with the incident.

On July 2, 2014, the Ocean County Prosecutor's office, in its filed objection (here), claimed that release of the video "will further serve to inflame" members of the public who have already posted "inflammatory comments . . . on the Internet about this case."  On July 7, 2014, My attorney, Richard Gutman, filed a reply which is on-line here.

Samuel Marzarella, who authored the Prosecutor's opposition brief also expressed concern that "if there are other witnesses out there in any prior dog bite cases involving this Officer with information favorable to him, they will certainly be hesitant to come forward in light of an inflammatory video." 

Further, Marzarella believes that disclosure of the video on YouTube would cause witnesses to come down with amnesia. "Along similar lines, persons who are potential witnesses in these cases may be able to view the tape on UTube, [sic] Plaintiff’s site or elsewhere – and this has the capacity to influence their recollection of events and testimony, or details that they remember might be deemphasized per the tape."

Finally, Marzarella put into evidence a June 30, 2014 letter from Cornelius W. Daniel, III, a Point Pleasant lawyer representing Wendy H. Tucker--the alleged dog-bite victim--regarding the criminal charges pending against her.  Daniel claims that the video should not be disclosed "because of privacy and other related issues."

Friday, June 20, 2014

"Brady letters" sought in OPRA lawsuit

Update: I received a voicemail on June 23, 2014 from a Wildwood Crest official telling me that he doesn't "have a Brady letter [and] never had one." The Prosecutor's May 5, 2014 denial of my OPRA request does not say that separate Brady letters exist for each of the three officials referenced in my OPRA request and named in my civil complaint.  The denial suggests that at least one Brady letter exists concerning at least one of these three officials.  Thus, it is entirely possible that the caller is being truthful in stating that a Brady letter pertaining to him never issued.
 On June 13, 2014, attorney Richard Gutman of Montclair filed a lawsuit on my behalf seeking "Brady letters" from the Cape May County Prosecutor's Office.  My Complaint and Certification in John Paff v. Cape May County Prosecutor's Office, Docket No. CPM-L-265-14 are on-line here.  The County's response is here, the court case that the County attached to its response is here and my reply to the County's response is here.

"Brady letters" are named after the United States Supreme Court's 1963 decision in the case of Brady v. Maryland.  That decision, among other things, requires law enforcement officials to notify criminal defendants and their lawyers whenever they receive information that a police officer involved in the defendants' cases has been untruthful.

For example, suppose that Officer Jones is found to have perjured himself in testifying against Defendant John Doe.  Suppose further that at the time the perjury is discovered,  three other defendants, Roe, Smith and Brown are all awaiting trial on separate charges and that Jones'  testimony will be necessary for successful prosecutions of  these three defendants.  The Brady v. Maryland decision imposes upon the prosecutor, once becoming aware of Jones' perjury, to inform Roe's, Smith's and Brown's defense attorneys about Jones' perjury.  This is because without knowing that  Jones had perjured himself in another matter, Roe, Smith and  Brown would not know to raise the perjury finding in their own trials in order to undermine Jones' credibility.

On April 26, 2014, after hearing that three Wildwood Crest Police officials had "Brady letters" issued for undisclosed reasons, I submitted an Open Public Records Act (OPRA) request for those letters.  In his May 5, 2014 response, Cape May County First Assistant Prosecutor Robert W. Johnson appears to concede that the "Brady letters" exist, but concludes that they are exempt from disclosure under various legal theories.

On May 18, 2014, Attorney Gutman sent Johnson a letter informing him that we would sue of the letters weren't disclosed on or before May 25, 2014.  After not hearing back from Johnson, we filed our lawsuit and are awaiting further proceedings by the court.

At this point, I encourage readers to not read too much into the prosecutor's response or draw any hasty conclusions regarding any of these officers' honesty or credibility.  Rather, I suggest that we all refrain from jumping to conclusions until any "Brady letters" are publicly disclosed.

Wednesday, June 18, 2014

Most of Morales' leniency letters produced

On June 5, 2014, I posted a blog article concerning the Middlesex County court system's decision to redact the senders' names from pleas for leniency for Anthony Morales who had been convicted of and sentenced to three years in prison for having a sexual relationship with a female student. 

Today, I received a letter from the Criminal Division Manager that provided me with unredacted copies of all but one of those letters.  The unredacted letters are on-line here.  Missing, however, is an unredacted version of the August 5, 2013 letter from the defendant's great-aunt and Godmother.  I suspect that the Criminal Division's failure to include this letter is nothing more than an oversight.

Monday, June 16, 2014

Unpublished Appellate Division OPRA opinion.

"Unpublished opinions" are not published in the law books and are not ordinarily written about in legal periodicals. Given that they are not published in the law books, they might 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.

Perry Bolkin v. Borough of Fair Lawn, et al
Sat below: Hon. Peter E. Doyne, A.J.S.C.
Appellate Docket No. A-2205-12T4
Date of Appellate Decision: June 16, 2014
Trial Court Docket No. BER-L-6547-12
Date of trial court decision: December 5, 2012
Click here and here, respectively, for the trial court's and the Appellate Division's decisions.

Summary: Appellate Division upheld trial court's decision that pet owners' names and mailing addresses were disclosable under the Open Public Records Act (OPRA), where the requestor promised that he would not divulge the information obtained to anyone else and to limit his use of the information to send pet owners information through the mail.

Saturday, June 14, 2014

OPRA Lawsuit seeks video of Tuckerton police use of dog to attack woman

On June 10, 2014, Montclair Attorney Richard M. Gutman filed a lawsuit on my behalf challenging the Ocean County Prosecutor's denial of my Open Public Records Act (OPRA) request for a video that allegedly depicts a police officer intentionally siccing his police dog on a 57-year-old woman.  The lawsuit and brief, captioned Paff v. Ocean County Prosecutor, Docket No. OCN-L-1645-14, is on-line here.

I requested the video after reading about Tuckerton Police Corporal Justin Cherry being charged with second-degree official misconduct and third-degree aggravated assault after he "allegedly allowed a K-9 to attack and bite a woman following a traffic stop earlier this year."  The dog attack allegedly occurred on January 29, 2014 and was filmed by a security video camera on the outside of the Barnegat municipal building.  An April 21, 2014 Star Ledger article on the alleged attack is on-line here.

My request for the video was denied by Ocean County Assistant Prosecutor O. Nicholas Monaco on May 28, 2014.  In his letter, Monaco stated that "this office cannot release the requested recording as it involves a criminal investigation in progress, pursuant to N.J.S.A. 47:1A-3 as well as an internal affairs matter, pursuant to the New Jersey Attorney General's Guidelines on Internal Affairs Policy and Procedures."  Gutman and I argue that the tape cannot be shielded from disclosure because it preceded both the criminal and IA investigations.

Monaco disclosed, however, copies of the complaints filed against the woman who was the victim of the alleged dog attack which identify her as Wendy Tucker of Barnegat.