Saturday, October 12, 2019

New Jersey Supreme Court agrees to decide whether the identity of trooper who left his or her position for "questionable associations" and "racially offensive behavior" can be withheld from the public.

Each year, the Division of State Police (NJSP) issues a public report that summarizes disciplinary cases against troopers processed through its internal affairs system.  Page 13 of the 2015 report noted that an unnamed trooper was "separate[d] from employment" for "having questionable associations, engaging in racially offensive behavior and publicly discussing police patrol procedures."  After reading that report on November 28, 2016, I caused Libertarians for Transparent Government, Inc. (LFTG), a non-profit that I serve as executive director, to submit an Open Public Records Act (OPRA) request for the trooper's "name, title, date of separation and reason therefor."

The NJSP denied the request claiming that internal affairs and personnel records are confidential.  In February 2017, OPRA lawyer CJ Griffin filed a civil complaint on LFTG's behalf in Mercer County Superior Court that challenged the NJSP's denial.  Assignment Judge Mary C. Jacobson ruled against LFTG on July 20, 2017 and a two-judge Appellate DivisiĆ³n panel affirmed Judge Jacobson's ruling on May 20, 2019.  On October 10, 2019, the Supreme Court granted certification meaning that New Jersey's highest court will review the lower courts' rulings.

In my view, the public has a right to know the identities of police officers who are forced to leave their positions because of misconduct.  As Griffin points out in her brief to the Supreme Court, without knowing this Trooper's identity, the public cannot determine whether this trooper was fired or allowed to resign in good standing or whether he or she has moved on to work for another police department. 

As the Supreme Court observed in 2012, one of OPRA's chief purposes is to "enable[] citizens and the media [to] play a watchful role in curbing wasteful government spending and guarding against corruption and misconduct."  If this purpose is to have any real meaning, the public has to be allowed to know the identity of a police officer who was separated from employment after a finding of misconduct.

Tuesday, October 1, 2019

Court orders Warren County municipality to disclose dashcam video of police chief's motor vehicle stop.

Update: The Township released the video shortly after this blog post was published.  The video is on-line here.
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On October 1, 2019, New Jersey Superior Court Assignment Judge Yolanda Ciccone issued a court order compelling Independence Township (Warren County) to disclose "the [police] dashcam audio and video recordings of" a motor vehicle stop of Keith P. Aiello, the Township's police chief.  The court order arose out of Libertarians for Transparent Government (LFTG) v. Independence Township, et al, Docket No. WRN-L-235-19 which sought disclosure of the dashcam recordings under both the Open Public Records Act (OPRA) and the common law right of access.  I serve as LFTG's executive director.  The case's complaint and brief are on-line here and here.

According to official documents, Independence police received a report at 2:17 a.m. on February 20, 2019 that a vehicle, which was later determined to have been driven by Chief Aiello, was "on and off the roadway," "swerving," "blew through a stop sign" and had "sideswiped a guardrail."  A box on the crash report described Aiello's "apparent physical status" at the time of the incident as "alcohol use." (See paragraph 17 of the complaint, linked above.)  No field sobriety tests were administered and no summonses were issued.

On April 19, 2019, LFTG submitted its OPRA request for records, including the dashcam recordings, relating to the incident.  The Township provided LFTG with some of the requested records but, in its April 29, 2019 response, claimed that the dashcam recordings were exempt as a "criminal investigatory record."

Judge Ciccone has not yet issued a written decision explaining the legal basis for her ruling.  In addition to ordering the Township to produce the video, she also ordered it to pay LFTG's court costs and attorney fees.

LFTG is being represented by Walter M. Luers of Clinton.

Friday, March 15, 2019

Appellate Division rules today on OPRA request for fire commissioners' e-mails.

The takeaways from today's two-judge Appellate Division panel's Open Public Records Act (OPRA) opinion in Jeff Carter v. Franklin Fire District No. 1 are:

1.  If you're an OPRA requestor who wants e-mails in their native format, you need to specifically request them in their native or original format.  Don't conflate the terms "medium" and "format."  A record's "medium" is the manner in which a document is produced, such as in paper, as a PDF document or as a video file.  Its "format . . . relates to the file structure of the original application that created the document."  In this case, the requestor did not specify that he sought e-mails in their "native" or "original" format.  Rather, he asked only for "electronic copies of all e-mails."  The panel held that the custodian complied with his request when it provided him with the e-mails as PDF files.

2. If you're a records custodian, it isn't permissible for you to certify that you asked the elected officials to search their own personal e-mail accounts for responsive e-mails and then produce a set of e-mails that are allegedly fully responsive to the OPRA request.  Such a certification is not based on the custodian's own personal knowledge and is therefore not allowed under OPRA.  Unless you conduct the searches yourself or supervise those searches in a meaningful way, there is no way for the requestor to know whether the records you produce constitute a complete set of the responsive records that exist. 

Wednesday, November 21, 2018

Facing lawsuit, Rutgers coughs up its separation agreement with former Athletic Director.

In his August 2, 2018 article, "Why did Rutgers pay fired AD Julie Hermann $500K more than she was owed?" Star-Ledger reporter Keith Sargeant wrote about Rutgers' refusal to provide him with the university's separation agreement with former Athletic Director Julie Hermann.  After reading the article, I had my non-profit submit an Open Public Records Act (OPRA) request for the separation agreement and then sued when Rutgers denied the request.

On September 10, 2018, Rutgers denied my non-profit access to Hermann's separation agreement for the same reason that Sargeant's request was denied: The agreement is "a personnel record, and not subject to disclosure under OPRA," Rutgers claimed.  With CJ Griffin of Hackensack as its attorney, my non-profit filed a lawsuit against Rutgers and its records custodian on September 24, 2018.  The lawsuit and exhibits are here, the brief is here and Griffin's certification and exhibits are here.

After being served with the lawsuit, Rutgers decided to disclose the separation agreement and pay Griffin $6,000 in attorney fees.  The separation agreement is on-line here.  It called for Hermann to receive payments of $175,000 as "retention compensation," $105,000 as "incentive compensation," $31,000 as an "automobile stipend," $125,000 as a "lump sum payment" and $25,000 as "attorney fees."  The agreement also called for Hermann to keep "the existence and terms of [the separation] agreement . . . strictly confidential" and provided that Hermann would have to pay Rutgers $50,000 in liquidated damages if she breached this confidentiality provision.

Thursday, November 15, 2018

OPRA suit seeks disclosure of court filings that resulted in reversal of former Hammonton school guidance supervisor's lewdness conviction.

If a person submits an Open Public Records Act (OPRA) request to a county prosecutor for records that the prosecutor filed in court, it is generally accepted that those records must be disclosed provided that the court case is not sealed.  Yet, on November 5, 2018 the non-profit I serve as executive director filed suit against the Atlantic County Prosecutor's Office (ACPO) for refusing to disclose briefs, certifications and trial court transcripts filed in a former Hammonton school guidance supervisor's court challenge to his conviction for masturbating in public.  The case against the ACPO is captioned Libertarians for Transparent Government v. Atlantic County Prosecutor's Office, Docket No. ATL-L-2684-18 and is on-line here.

By way of background, according to a May 24, 2017 Press of Atlantic City article, Michael P. Ryan was convicted in Absecon Municipal Court of masturbating in his car in the parking lot of a Hammonton laundromat on September 11, 2015 (Summons/Complaint No. 0113-S-2015-000398).  Ryan, who had worked as a guidance supervisor for the Hammonton Public School District, was suspended from his position when he was charged with lewdness--a disorderly persons offense--and was fired when he was convicted of that offense.

On May 18, 2017, Atlantic County Superior Court Judge Donna A. Taylor affirmed Ryan's municipal court conviction. Details of the facts leading up to the charge are set forth in Judge Taylor's May 18, 2017, 13-page written decision.  Judge Taylor affirmed the $506 fine, $158 costs and assessments and one-year term of probation that the municipal court imposed.

Also included in Judge Taylor's decision are details relating to another, separate lewdness charge (Summons/Complaint No. 0113-S-2016-000097) arising out of an September 20, 2015 incident where Atlantic County Prosecutor's Office Detective Michael Peterson charged Ryan with masturbating in his car in the Hammonton Discount Liquors parking lot and an Obstruction of the Administration of Law offense (Summons/Complaint No. 0113-S-2016-000098) that Peterson brought against Ryan for allegedly fleeing from the scene of the September 11, 2015 incident at the laundromat.  The municipal court found Ryan not guilty of these two charges and convicted him only of the lewdness charge that arose out of the September 11, 2015 laundromat allegation.

According to Judge Taylor's decision, the lewdness charge arising out of the September 11, 2015 incident at the laundromat was brought by Eastampton Township Police Officer Michael Musser and his conviction on that charge relied very heavily on Musser's testimony.  Musser said that he, while off-duty, went to the laundromat to do some laundry when he witnessed a man, who he later identified as Ryan, masturbating in his car.  After Musser identified himself as a police officer, the man allegedly drove away.  Musser said that he recognized Ryan driving the same car a couple of weeks later in a grocery store parking lot and took a photograph of Ryan's license plate.  Musser said that he followed Ryan's vehicle but that Ryan ran stop signs to evade him.

At trial, Ryan's attorney argued that Musser did not report the September 11, 2015 when it occurred and could not recall the date or day of the week when it allegedly occurred.  According to Judge Taylor's decision, Ryan's attorney argued that "Musser's lack of reporting the initial incident should raise a serious question as to his attentiveness during the incident."

At some point after Judge Taylor affirmed his conviction, Ryan and his attorney became aware that Musser had been fired for lying to the Eastampton Police Internal Affairs Unit.  (See my article, "Burlington judge upholds Eastampton cop's firing.")  While Ryan's motion and brief to the Appellate Division have been suppressed by the Atlantic County Prosecutor's Office, Burlington County Judge Susan L. Claypoole's October 23, 2017 written opinion does show that Musser was aware of an Internal Affairs investigation against him on August 25, 2016 which was prior to the October 28, 2016 trial at which Musser testified against Ryan.

While Ryan's attorney's argument to the Appellate Division has not been disclosed, Ryan apparently argued that the prosecution was required by the 1963 Supreme Court decision in Brady v. Maryland to tell Ryan's attorney about Musser's untruthfulness.  Such would have allowed Ryan's attorney to attack Musser's credibility during Ryan's trial and may have led to a different outcome.  The prosecution's failure to so inform Ryan of Musser's credibility issues arguably deprived him of a fair trial.

Appellate Division Judge Michael J. Haas entered a December 22, 2017 order that granted Ryan's motion to remand the case back to the Superior Court and Atlantic County Superior Court Judge Bernard E. DeLury, Jr. signed a March 19, 2018 Order that "vacated the Judgment of Conviction," granted Ryan a "new trial based on a Brady violation" and remanded the matter back to the Absecon Municipal Court for a new trial.  By way of a November 30, 2018 letter,  Atlantic County Assistant Prosecutor Kathleen E. Robinson advised Absecon Municipal Court Judge John H. Rosenberger that "upon further review . . . the State has declined to continue the prosecution of defendant Ryan."  Attached to Robinson's letter is a copy of Summons/Complaint No. 0113-S-2016-000098 marked "dismissed."

Libertarians for Transparent Government is being represented in the OPRA lawsuit by Richard M. Gutman of Montclair.

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.

On December 19, 2018, the Trenton Board filed its opposition brief and certification and on December 21, 2018, the American Civil Liberties Union of New Jersey filed an Amicus Curiae brief.

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.

Update:  In a November 2, 2018 consent order, Judge Telsey ruled that the non-profit that I serve as executive director--Libertarians for Transparent Government--is the prevailing party and entitled to court costs and attorney fees.  He redacted the County's settlement agreement with Tyrone Ellis but sealed the redacted agreement until he or the Appellate Division orders it released.  He also issued a written opinion but sealed it until he or the Appellate Division orders it released.  Judge Telsey's order prohibits my attorney from telling anybody--including me--of the settlement terms without his or the Appellate Division's permission.
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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."