Thursday, October 23, 2014

Lawsuit: Kinnelon delinquent on meeting minutes since 2009.

On October 16, 2014, a local woman filed a civil lawsuit against the Borough of Kinnelon (Morris County) seeking to compel the Borough Council and Interim Borough Clerk Karen M. Iuele to approve and make the Council's executive and "workshop" meeting minutes "promptly available" as required by the Open Public Meetings Act (OPMA).

In her lawsuit, Donna Dixon claims that the Kinnelon Council had not, as of this summer, created any written minutes of its nonpublic (closed or executive) meetings since January 1, 2009.  The lawsuit also alleges that the Borough has not created, since 2009, any minutes of its "workshop" meetings that are held on the second Thursday of each month.  The only minutes the Borough has maintained are those of the Council's "regular" meetings held on the third Thursday of each month.

Dixon claims that when she made an Open Public Records Act (OPRA) request for the delinquent minutes in August, Iuele needed a thirty day extension to handle the request. Then, Dixon and the Borough Council released seven sets of closed minutes on September 18, 2014.  According to Dixon, several closed meetings occurred between 2009 and 2014 for which no minutes have yet been released.  She seeks an order compelling the Borough to make all its past minutes available and to develop an enforceable procedure to ensure that future meeting minutes are made promptly available.  She also seeks an order compelling the Borough Council to make its meeting agenda publicly available at least two days prior to each meeting.

Her suit, filed by Walter M. Luers of Clinton, is captioned Dixon v. Borough of Kinnelon, et al, Docket No. MRS-L-2480-14.  No court proceedings are yet scheduled.  A copy of Dixon's lawsuit is on-line here.

Tuesday, October 21, 2014

State may close Bridgeton Port Authority in January.

The transcripts of the Local Finance Board's August 13, 2014 meeting minutes pertaining to the Bridgeton Port Authority are on-line here.  These 22 pages provide a good example of a public agency that has been woefully mismanaged and neglected.  Here's a quote from the transcript:
Here we have an authority that doesn't do any of those things. With all due respect it is a port authority and there isn't a single boat anywhere--or a slip for that matter. They don't have staff and they don't do anything.
Thomas Neff, Chairman
New Jersey Local Finance Board

Saturday, October 18, 2014

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.

John Paff v. Bergen County, et al.
Bergen County, Docket No. BER-L-7739-14
Hon. Peter E. Doyne, A.J.S.C.
October 16, 2014
Click here for the court's decision.
Click here for file complaint, brief and exhibits.

Summary: List of Internal Affairs Complaints against corrections officers who work in the Bergen County Jail is subject to disclosure under OPRA.  “Attorney General Guidelines” are not a recognized exception to OPRA’s general requirement favoring disclosure of government records.

Thursday, October 16, 2014

Letter to NJ Pensions: Should Gibbsboro's lawyers' PERS termination be retroactive to 2008?

It looks as though Gibbsboro recently took Municipal Prosecutor Higgins and Public Defender Wiggington off the PERS pension rolls because of an investigation by the Pension Fraud and Abuse Unit.  My questions are: a) Will the Pension Fraud and Abuse Unit push for these lawyers' removal retroactive to 2008? and b) If not, would there be a financial benefit to PERS if I were to file a lawsuit to compel retroactive removal?  My letter to the Pension Fraud and Abuse Unit follows:


New Jersey Libertarian Party's
Open Government Advocacy Project
P.O. Box 5424
Somerset, NJ  08875

October 16, 2014

Marc Greenfield
Pension Fraud and Abuse Unit
via e-mail

Dear Mr. Greenfield:

I chair the New Jersey Libertarian Party's Open Government Advocacy Project.  We have recently been investigating the issue of municipal governments', despite the 2007 enactment of N.J.S.A. 43:15A-7.2, seeming unwillingness to wean their independent professionals, such as municipal prosecutors and public defenders, from PERS enrollment.

As a starting point, we began our investigation with Camden County lawyers Timothy Higgins and Charles Wiggington who serve, respectively, as municipal prosecutor and public defender for the Borough of Gibbsboro.  The blog articles we have published so far on our investigation are here and here.

In summary, we have determined that both Higgins and Wiggington were certified by Gibbsboro as being PERS eligible until their termination from PERS effective August 30, 2014.  This morning, I received, via an OPRA request to Gibbsboro, your August 18, 2014 e-mail to Borough Clerk Anne Levy and your colleague Kristin Bell's August 13, 2014 letter to the Borough.  Both the e-mail and the letter are on-line here.

From reviewing all the material, it appears to me that Gibbsboro was carrying Higgins and Wiggington on the PERS rolls, and probably intended to keep carrying them, until the Pension Fraud and Abuse Unit recently decided to conduct its investigation into these lawyers' PERS eligibility.  Under the pressure of your Unit's investigation, Gibbsboro finally threw in the towel and decided to remove the two lawyers from the PERS rolls.

While this is a good thing, it leaves open the question of whether Higgins' and Wiggington's separation from PERS ought to have been retroactive to 2008.  It seems to us at least arguable that if Higgins and Wiggington are not now eligible for PERS, they probably have not been eligible for the last six or so years.

As a public service, we may be interested in filing a lawsuit in lieu of prerogative writs seeking an order compelling the State to retroactively remove Higgins and Wiggington from the pension rolls on the proper date in 2008.  Similarly, we might investigate filing citizen complaints, in accordance with R.7:2-2(a)(1), against Gibbsboro's Certifying Officer and Certifying Officer's Supervisor if they certified to Higgins's and Wiggington's PERS eligibility when it was plain that they were not eligible.
Before embarking on either of these paths, we would like to ask two questions.  First, is the Pension and Fraud Unit's intent to seek retroactive removal of Higgins and Wiggington from the PERS rolls or are you satisfied with these lawyers' removal from the PERS effective August 30, 2014?

Second, if your Unit is not seeking to take any further action and is content with the August 30, 2014 separation date, would a successful effort on our part to roll these lawyers' termination dates back to 2008 have any actual effect on the Pension System?  We do not wish to commence a lawsuit unless success would yield a financial benefit to the PERS and its legitimate enrollees.

Thank you very much for your attention to this matter.  I look forward to hearing from you.

Very truly yours,

John Paff

Wednesday, October 15, 2014

Plot thickens on Gibbsboro prosecutor's and defender's pension enrollment

On October 14, 2014, I wrote to Gibbsboro's Mayor and Clerk seeking more information regarding Municipal Court Prosecutor Timothy Higgins' and Public Defender's Charles Wiggington's enrollment status with the PERS pension.  That letter is on-line here.

Today, in response to another OPRA request, Borough Clerk Anne Levy provided me with the Borough's August 27, 2014 letter to New Jersey's Pension Fraud and Abuse Unit advising that Unit that Higgins and Wiggington were "terminated from the PERS pension as of 9/1/14."  According to the letter, which is on-line here, the termination of the two men apparently resulted from an August 8, 2014 e-mail and a August 13, 2014 letter that the Borough received from the Pension Fraud and Abuse Unit.  I have submitted an OPRA request for that e-mail and letter and will post them upon receipt.

Tuesday, October 14, 2014

Letter to Gibbsboro regarding professionals' enrollment in state pension

New Jersey Libertarian Party's
Open Government Advocacy Project
P.O. Box 5424
Somerset, NJ  08875

October 14, 2014

Hon. Edward G. Campbell, III, Mayor and Clerk Anne D. Levy
Borough of Gibbsboro
49 Kirkwood Rd
Gibbsboro, NJ  08026
(via e-mail only to and

Dear Mayor Campbell and Clerk Levy:

I write to you both on behalf of the New Jersey Libertarian Party's Open Government Advocacy Project because Clerk Levy serves as the "Certifying Officer" and Mayor Campbell serves as the "Certifying Officer's Supervisor."  This means that both of you, in accordance with N.J.S.A. 43:3C-5, periodically certify to the State which of Gibbsboro's employees are eligible for enrollment in New Jersey's Public Employees' Retirement System (PERS).  For your ready reference, I have placed your certification credentials here, which I recently received from Clerk Levy in response to a public records request.

Also in response to a recent records request, Clerk Levy provided me with a table that reflects which Gibbsboro employees you both deemed to be eligible for PERS enrollment for the third quarter 2014. That table is also on-line here for your ready reference.

The first thing that struck me was that Mayor Campbell himself is enrolled in PERS while none of the other members of the Borough Council are enrolled.  But, I subsequently researched the PERS Handbook (on-line here) and found that elected officials are eligible for enrollment if they were elected prior to July 1, 2007.  I believe that Mayor Campbell has been Mayor of Gibbsboro for at least that long, so I have no quibble with his enrollment.  (I include the fact of his enrollment in this letter, which I have made public, only so that those who review the table at the link above and question the mayor's enrollment will understand that it is permissible under PERS rules.)

Not so clear, however, is the PERS enrollment of Timothy Higgins and Charles Wiggington, who appear, respectively, to be Gibbsboro's municipal court prosecutor and public defender.  I note that the table shows that these two lawyers were enrolled in PERS but were "terminated" on August 30, 2014.

On-line here is the New Jersey's Office of the State Comptroller (OSC) July 17, 2012 report entitled "Improper Participation By Professional Service Providers In The State Pension System." According to this report, the PERS pension was intended for career employees who dedicate their careers to public service.  Despite this intention, various independent contractors, including appointed lawyers and engineers, have, over the years, enrolled in PERS even though they were ineligible.

To combat these improper enrollments, the Legislature enacted N.J.S.A. 43:15A-7.2 in 2007 which intended to get these freeloading professionals off the PERS rolls.  However, the report laments, the legislation has been largely unsuccessful because as of the report's writing in 2012
an overwhelming majority of surveyed local government entities failed to comply with the statutory  mandate to determine whether these professionals are independent contractors or employees. As  a result, they have failed to remove ineligible independent contractors from PERS. (Report, page 1).
The report gives examples of municipal court prosecutors and public defenders who the OSC found to be improperly enrolled in PERS.  Strikingly, the report, on page 11, mentions Gibbsboro's improper determination that its prosecutor and public defender were somehow "grand fathered" into the pension plan by virtue of their length of service:
Similarly, the Borough of Gibbsboro identified its municipal prosecutor and  public defender as professional service providers enrolled in PERS. The borough stated to us, in  relevant part, that these individuals have been in those positions since 2004 and 2006  respectively and “while they are appointed on a yearly basis, they are continuing employees.”  As discussed above, however, the law provides no such grand fathering exception. 
This raises a few questions regarding Higgins and Wiggington and Gibbsboro's treatment of their PERS enrollment:

1. Does the "terminated on August 30, 2014" entry on Gibbsboro's 3rd Quarter 2014 PERS table mean that Higgins and Wiggington were terminated from PERS enrollment effective August 30, 2014?

2. If so, why did Gibbsboro's Certifying Officer and Certifying Officer's Supervisor continue to keep them on the pension plan until 2014 when it appears that they should have been removed in 2008?

3. If I understand the matter correctly, Gibbsboro's delay in removing these enrollees is especially hard to understand since the OSC put the Borough on notice of this exact issue more than two years ago.

I do not profess to be an expert in PERS, or pensions in general so, for all I know, I may be suffering from a misunderstanding.  So, I invite either of you to call or write to correct my misunderstanding.  I have also submitted an additional Open Public Records Act request for more documentation.

Thank you for your attention to this matter.

Very truly yours,

John Paff, Chairman

Sunday, October 12, 2014

Crest Captain Mayer seeks "opportunity to join in 'Brady letter' case."

Approximately six weeks after Judge Nelson C. Johnson ruled that the Cape May County Prosecutor has to provide we with "Brady letters" involving Wildwood Crest Police Captain  David Mayer and Lieutenant Michael Hawthorne, Mayer, in an October 7, 2014 letter from attorney Joseph J. Rodgers, has asked Johnson to reopen the case.  According to Rodgers' letter, Mayer "will be harmed by the court's ruling unless the case is reopened to allow all interested parties an opportunity to join in the case.  Background on the case is here.

In an October 12, 2014 response, my attorney Richard Gutman urged Johnson to deny Rodgers' request  Both Rodgers' letter and Gutman's response are on-line here.