Friday, March 30, 2018

GRC holds that it was OK for a records custodian to unilaterally grant himself a two-week extension.

In a March 27, 2018 decision, the Government Records Council (GRC) held that the Summit (Union County) school district did not violate the Open Public Records Act (OPRA) by unilaterally granting itself a two-week extension to fulfill a records request.

The request, submitted on June 27, 2016, was for a civil complaint and a settlement agreement.  On July 6, 2016, the school district wrote that the "request requires an extension of time until July 25, 2016 based on anticipated availability."  Attorney Richard M. Gutman of Montclair filed a Denial of Access complaint on July 9, 2016 and the school district disclosed the requested records on July 22, 2016.

Gutman's argument was that OPRA, specifically N.J.S.A. 47:1A-5(i), allows custodians to unilaterally extend the seven business-day response period only if the requested records are "in storage or archived."  The Summit district, however, did not even claim that the records were in storage.  In the complaint, Gutman wrote: "If custodians could extend the seven-day deadline by simply unilaterally granting themselves an extension of time, the seven-day deadline would be meaningless."  (Another provision of OPRA, N.J.S.A. 47:1A-5(g), allows custodians to seek an extension if timely production would "substantially disrupt agency operations." But, in such a case, the custodian is obligated to "attempt[] to reach a reasonable solution with the requestor that accommodates the interests of the requestor and the agency.")

The GRC's Executive Director wrote that "the Council’s long-standing precedent on extensions above is more permissive" and that the extension wasn't unreasonable.  The Executive Director cautioned, however, that "[a]lthough extensions are rooted in well-settled case law, the Council need not unquestioningly find valid every request for an extension containing a clear deadline."

Tuesday, February 27, 2018

Local Finance Board will start posting ethics minutes on-line but will continue to obscure case docket numbers in those minutes.

Among the first orders of business at the Local Finance Board's (LFB) meetings is the consideration of complaints filed against local government officials for alleged violations of the Local Government Ethics Law (LGEL).  While the Board keeps minutes of the portions of its meetings where LGEL complaints are discussed, it has not posted them on the Board's website. Rather, the Board posts transcripts of the other parts of its meetings on-line and requires the public to submit Open Public Records Act (OPRA) requests for the portions of the minutes that record the LGEL complaint discussions. 

In a February 26, 2018 letter, however, LFB Chairman Timothy J. Cunningham promised that the Board will soon begin posting the minutes of the ethics portions on the Board's website. 

Cunningham's letter was in response to my December 22, 2017 correspondence that requested on-line posting of the ethics minutes and for the Board to discontinue obscuring case docket numbers in those minutes.  On the latter point, the Board's practice is to not refer to an ethics case by its case number but by another number that prevents the public from knowing which case is being discussed.

For example, the LFB discussed at its September 13, 2017 meeting an ethics case brought against former Ridgewood Mayor Paul Aronsohn and Manager Roberta Sonenfeld, LFB Complaint No. 16-009.  But, the minutes of that meeting did not refer to "LFB Complaint No. 16-009" but to another number (in this case, III.A.7).  I argued that the use of the separate number made it impossible for the public to know which case was being discussed.

In his response, Cunningham defended the minutes' use of a different numbering system as being necessary to keep the Board from "violating its confidentiality obligations." The LFB has historically assigned paramount importance to the confidentiality interests of accused local officials and very little importance to the public's right to know which officials are being investigated.  In its rejection of New Jersey Foundation for Open Government's 2015 request for earlier disclosure of the identity of public officials under LGEL investigations, the Board wrote that "[d]isclosure of unverified information . . . may impact a [government official’s] standing in the community or employment with a public agency."  Thus, ethics matters are kept completely confidential until a determination is made and ethics investigations often take years to complete.

Wednesday, February 14, 2018

Five members of Borough Council say that they lack an annual source of income in excess of $2,000.

As required by the Local Government Ethics Law, Woodlynne Borough (Camden County) Councilwoman Sharon Earley and her husband, Planning Board Member Robert Earley, both filed Financial Disclosure Statements (FDSs) in 2017.  These filings are intended to disclose basic information regarding public officials' and their family members' sources of income, business interests and real estate holdings.  Their purpose is to inform the public of the sources of the public officials' income so that the public can detect and report conflicts of interest (e.g. a zoning board member voting on an variance application filed by his or her spouse's employer).

But, both Earleys claimed on their FDS forms to have had no sources of income in 2016, earned or unearned, that were in excess of $2,000.  Both also claimed not to have had interests in any business organizations.  The only thing the Earleys disclosed on their forms was ownership of their Cedar Avenue home.  While, I suppose that it's possible for a married couple who are homeowners in New Jersey to not have a source of income greater than $2,000, it seems very unlikely given that the property taxes on the home are more than $2,000.

After reviewing the Earleys' FDS forms, I decided to dig a bit deeper.  I found that, including the Earleys, five Woodlynne Borough Council members who served in 2017 and four 2017 Planning Board members likewise claimed that their households lacked a $2,000 or greater source of income during 2016.

It seems to me that at least some of these officials really do have sources of income greater than $2,000 but would prefer not to report them.  Failure to report, however, is against the law.  Below is the text of complaint I filed yesterday against all nine officials with the Local Finance Board--the state agency that enforces the ethics law.  The Board will conduct an investigation (which generally takes 2 to 3 years) and has the power to levy fines of between $100 and $500 if it finds that the ethics law has been broken.  The complaint names all nine officials and provides links to each official's 2017 FDS filing.
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February 12, 2018

Patricia Parkin McNamara
Local Finance Board
101 S Broad St – PO Box 803
Trenton, NJ 08625-0803
(via e-mail only to Patricia.McNamara@dca.state.nj.us)

Dear Ms. McNamara:

We intend this e-mail to be our complaint against the following nine (9) Local Government Officers (LGOs) serving Woodlynne Borough (Camden County) who all held office in 2017 (Note that each name contains a live link to that LGO's 2017 Financial Disclosure Statement (FDS)):

Joseph Chukwueke, Council Member 
Sharon Earley, Council Member 
Alphonso Thomas, Council Member 
Gwendolyn Torres, Council Member 
William Valle, Council Member 
Amy Earley, Planning Board Member 
Robert Earley, Planning Board Member 
Noble Kelly, Planning Board Member 
Devy D. Robinson, Planning Board Member 

1. State the point of the Local Government Ethics Law (LGEL) alleged to be violated. 

N.J.S.A. 40A:9-22.6 which requires each LGO to file an annual Financial Disclosure Statement (FDS).

2. State the name(s) and title(s) of the parties involved in the action and against whom the complaint is filed. 

Complainants are John Paff and the New Jersey Libertarian Party and Respondents are Joseph Chukwueke, Sharon Earley, Alphonso Thomas, Gwendolyn Torres, William Valle, Amy Earley, Robert Earley, Noble Kelly and Devy D. Robinson.

3. Set forth in detail the pertinent facts surrounding the alleged violative action. 

Each Respondent is required to disclose on his or her FDS "each source of income, earned or unearned, which [he or she] received in excess of $2,000."  Knowing the source of officials' income is important because it helps the public detect conflicts of interest that might otherwise go unnoticed.  For example, if an applicant before the Planning Board employs and pays a Planning Board member's spouse more than $2,000 per year, a member of the public so informed could call attention to a conflict of interest if that Planning Board member attempted to vote on the application.  In each of these nine (9) cases, however, the LGO stated that neither the LGO nor any members of the LGO's immediate family had any sources of income in 2016 from which more than $2,000 was received.  While it is perhaps possible for an individual or family to live in New Jersey and have no single source of income of greater than $2,000, it is highly unlikely that five of the seven members of the Mayor and Council and four members of the Planning Board all have no sources of income from which more than $2,000 is derived.  Further, Chukwueke and his wife, Sharon and Robert Earley, Valle and his wife, and Robinson and her husband all report ownership of real estate.  It is general knowledge that real estate taxes in New Jersey would require a source of income in excess of $2,000 to pay.  Complainants allege that each of these nine LGOs and their immediate family members have sources of income in excess of $2,000 but have chosen not to disclose those sources. 

4. Indicate whether the complaint concerns the complainant in any way and what, if any, relationship the complainant has to the subject of the complaint. 

Complainants have no interest in or relationship to this complaint greater than any other citizen or organization who wishes for all government officers and employees to comply fully with the Local Government Ethics Law. 

5. Indicate any other action previously taken in an attempt to resolve the issue and indicate whether the issue is the subject of pending litigation elsewhere. 

No other action has been taken previously in an attempt to resolve this issue and, as far as we know, this issue is not the subject of any pending litigation. 

Thank you for your attention to this matter. I ask that you please acknowledge your receipt of this complaint within 30 days.

Sincerely,

/s/ John Paff, Chairman
New Jersey Libertarian Party's
Open Government Advocacy Project
Voice: 732-873-1251
e-mail: paff@pobox.com

Tuesday, January 23, 2018

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.

Carin Geiger v. Borough of Englewood Cliffs, et al, Docket No. BER-L-7240-17
Hon. Robert P. Contillo, P.J.Ch.
January 19, 2018
Click here for the court's decision.

Summary:  An e-mail sent by the mayor to a newspaper reporter was not subject to the executive privilege because it does not seek advice that would help the mayor make an informed decision.  Rather, it was the mayor's comment defending actions taken by the Borough Council.  Also, the mayor cannot invoke the Shield Law because that defense can only be invoked by the journalist, not the source.  The Borough was ordered to disclose the e-mail and pay the plaintiff's attorney fees.

Monday, January 22, 2018

Court to hear OPRA case where school board denied access to documents that are publicly available at the courthouse.

On Monday, February 26, 2018 at 10 a.m., Bergen County Assignment Judge Bonnie J. Mizdol will hear argument on whether laws that accord confidentiality to certain student records justify a local school board's decision to deny access to a civil lawsuit that a student filed against the school board.

On October 17, 2017, Libertarians for Transparent Government (LFTG), a public-interest, non-profit (Disclosure: The author is the non-profit's executive director), sent an Open Public Records Act (OPRA) request to the Ridgefield (Bergen County) school district seeking a copy of February 2015 civil complaint filed against the district by "A.B.," a student identified only by his intitules.  In the same request, LFTG also sought a copy of the September 2017 court order that approved the settlement of A.B.'s lawsuit.

In its response, the Ridgefield district denied access to both the civil complaint and the court order based on an October 16, 2017 Appellate Division opinion that, subject to very limited exceptions, mandated complete suppression of all records "related to an individual student" even if the student's name and other personal identifiers are removed.  LFTG's attorney, Walter M. Luers of Clinton, pointed out that unlike other records, the civil lawsuits and court orders that LFTG requested "are public by their very nature and were filed in Court without a sealing order."  Indeed, Luers was able to obtain for the court's new E-Courts on-line system an unredacted version of the September 2017 order that named both the student and his mother by name.  The lawsuit, certification and brief filed in the OPRA lawsuit are on-line here.  The Ridgefield Board's response is here and LTFG's reply is here.

This hearing is open to the public.  If you plan to attend, please call the court offices at 201-527-2280 the day prior to confirm that the hearing date and hour have not changed. Refer to docket number BER-L-8864-17.

Tuesday, January 2, 2018

Court to decide whether to unlock docket and unseal records in special-needs elementary student's rape lawsuit.

Update:  On January 22, 2018, Judge Ciccone denied our motion.  Her Order and Opinion are on-line here.
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On Friday, January 5, 2018, Somerset County Assignment Judge Yolanda Ciccone will hear a motion filed by three open government advocates who seek to at least partially unseal court records and unlock the court's docket of a lawsuit filed by a then fourth-grader in the Hillsborough school district who claimed that she was raped multiple times by her former elementary school principal.

The motion, filed by me, along with transparency advocates Donald Baldwin and Paula Baldwin, aims to get at least minimal docket information on a lawsuit filed on June 1, 2017 by a former Hillsborough Township (Somerset County) fourth-grade girl who, according to media reports, claims that she was raped "hundreds of times" by now-retired Woodfern Elementary School Principal Matthew Hoffman.  Currently, every document in the court's file is sealed and the case cannot be located on the Automated Case Management System (ACMS)--the civil court's on-line docket.

I first learned about the case's existence on September 18, 2017 when I visited the Somerset County Civil Division Manager's office for a routine record inspection.  While at the office, I examined a book of court reports that revealed that an "assault and battery" lawsuit was filed by Jane Doe.  After the window clerk denied my request for case documents, I made a formal, written request to the Trial Court Administrator for the order that sealed the file, a redacted version of the civil complaint and even innocuous documents such as cover letters that accompanied case filings and the court-generated notice that advised the parties of the "track" to which the case was assigned.  In an October 6, 2017 letter, Civil Division Manager Mary Braunschweiger denied my request in its entirety.

Later, Donald Baldwin discovered that the case was the subject of a July 26, 2017 New Jersey 101.5 article written by Sergio Bichao titled "Ex-Hillsborough principal raped 4th-grade girl 'hundreds' of times, lawsuit says."  That article reported that Hoffman, while a teacher in the Hopewell Valley Regional School District in the 1980's, was accused in a lawsuit of raping a young man over a four year period.  That accusation resulted in a $300,000 jury verdict against Hoffman in 2015.  According to Bichao's article, Hoffman retired at age 52 shortly after the Hopewell Valley student filed his lawsuit.  No criminal charges against Hoffman have arisen out of either alleged offense.  According to New Jersey pension records, Hoffman's final salary from Hillsborough was $129,724 and he receives a monthly pension of $4,745.

Our motion is being jointly opposed by Jane Doe and the Hillsborough school district.  The opposition paperwork argues that the file was unsealed and the docket was open from June 1, 2017 through to September 15, 2017 when Superior Court Judge Thomas C. Miller sealed both the file and the docket.  The opposition argues that the Baldwins and I should have opposed the sealing motion that Judge Miller decided in September and that it is too late for us to now challenge it.  They also argue that nothing short of a complete sealing of the records and a total lock-down of the docket will protect Jane Doe's privacy.  In our reply, we argue that we did not even know about the case when Judge Miller entered his order and that there should be a way, through use of pseudonyms, document redaction and other devices, for the public's interest in this case to be accommodated while still protecting Jane Doe's privacy.  Under court rules, the burden is on the parties who wish to keep the sealing order in place to show that "good cause" continues to exist for sealing the records.

The Baldwins and I fully respect the young plaintiff's need for privacy.  But, members of the public, especially Hillsborough taxpayers, have a legitimate interest in knowing whether Hillsborough school officials knew or should have known about Hoffman's alleged past conduct but turned a blind eye toward it.

According to Bichao's article, one of the defendants in the lawsuit is Susan Maglia, Hoffman's secretary, who sat outside Hoffman's locked office door during the alleged rapes and watched Hoffman walk the girl to her classes after the office visits.  And, former Hillsborough Superintendent Edward J. Forsthoffer, who is now the superintendent of the Bordentown Regional School District, claimed through his attorney that he and other Hillsborough officials "had no way knowing about the previous allegations because [Hoffman] had never been charged with any crime that would show up in a background check."

The public has an interest in hearing testimony and seeing court records that could disclose whether Maglia, Forsthoffer and other school officials acted reasonably in protecting Jane Doe from harm.  The Baldwins and I believe that Judge Ciccone can balance the public interest in this case against Jane Doe's privacy needs in a way that accommodates both.

Friday, December 22, 2017

Evesham Councilman, wife sue MUA for failing to redact social security number from records disclosed under OPRA.

On December 21, 2017, a member of the Evesham Township (Burlington County) Council and his wife filed a pro-se lawsuit against the Evesham Municipal Utilities Authority (MUA) and the Authority's records custodian for improperly releasing the Councilman's social security number in response to an Open Public Records Act (OPRA) request.

In their lawsuit, Robert and Virginia DiEnna said that in December 2015 MUA records custodian Laura Puszcz released records that contained Robert's social security number in response to to Phillip Warren's OPRA request.  Councilman DiEnna said the MUA had his personal information because he was hired as an MUA employee in 2012.

The DiEnnas claimed that they did not become aware that Robert's social security number had been released until September 26, 2016.  They claimed that the disclosure of the social security number invaded their privacy and caused them emotional distress.

The DiEnnas' lawsuit is only a list of allegations. Nothing has been proven and the burden of proof remains on the DiEnnas.