Wednesday, December 17, 2014

Records Custodian fined for 2nd time



In what is believed to be an unprecedented decision, the Government Records Council (GRC), on December 16, 2014, found that a Franklin Township (Somerset County) Fire Commissioner Board's records custodian had, for the second time, "knowingly and willfully [and] unreasonably" denied a records requestor access to a government record.  The GRC imposed a $2,500 fine on the custodian and ordered the Board of Fire Commissioners to pay the requestor nearly $15,000 in costs and attorney fees.

Fined was Commissioner William Kleiber who serves as the records custodian for the Franklin Township Fire District No. 2 Board of Fire Commissioners.  The requestor was former Franklin Police officer Jeffrey Carter who is currently an assistant professor at Centenary College and who previously was a Commissioner in Franklin Fire District No. 1.

In her written decision on the case, Administrative Law Judge Linda M. Kassekert  held that Kleiber's and Board Attorney Eric Perkins' denial of Carter's request for "warrants" was "was more than 'negligent, heedless or unintentional'" but "was intentional and deliberate."  Kassekert also ruled:
It is apparent that Mr. Kleiber was not the right person to serve as the Records Custodian for Franklin Township Fire District No. 2. He was an elected fire commissioner, a part-time position. He admitted that he never read the OPRA statute. In this matter, he did not read the complaint and filings. He admitted that he delegated up to 95 percent of the OPRA requests received by the district to Ms. [Sandy] Accardi and the remaining 5 percent were given to the district’s counsel to handle. 
The GRC's and Judge Kassekert's decision is on-line here.

The GRC noted that since it was Kleiber's second offense (the first fine of $1,000 was levied in August 2013 in the case of GRC 2011-124, in which Carter was also the complainant), he must be fined $2,500 since that is the amount the Legislature prescribed for second offenders.  The GRC specifically ordered that Kleiber "must remit payment from his own personal funds."

The first matter resolved when Kleiber agreed that he had knowingly and willfully violated Carter's OPRA rights and signed a settlement agreement to that effect.


Sea Girt Board of Education closed meeting minutes, attorney bills on line.


As a public service, I've placed the following records of the Sea Girt (Monmouth County) Board of Education on line:

Here: Redacted minutes of the Board of Education closed sessions from March 2014 forward.
Here: Legal Services invoices from Lindabury,McCormick, Estabrook & Cooper.
Here: Legal Services invoices from Methfessel & Werbel, Esqs.

Wednesday, December 10, 2014

OPRA plaintiff resorts to writ of execution to get town to pay legal fees.


Typically, public agencies readily pay attorney fees when a court orders them to.  However, in the case of the Town of Harrison (Hudson County), an Open Public Records Act (OPRA) plaintiff applied in 2013 for a writ of execution to compel the Town to pay $55,702.88 in legal fees.

Harrison appealed the trial court's original July 31, 2010 award of $28,951.36 and the Appellate Division, in an August 15, 2012 ruling, see my blog here, affirmed the fee award.  The remainder of the $55,702.88 was for additional fees that accrued, apparently earned by the OPRA plaintiff's attorney attempting to collect the fees that Harrison failed to pay.

According to court documents, on-line here, on July 31, 2010, Superior Court Judge Bernadette DeCastro ordered the Town to pay the $28,951.36 "within 45 days." Judge DeCastro similarly ordered to the Town to pay $14,687 and $9,859 on January 4, 2011 and March 14, 2011 respectively.  Despite DeCastro's orders, Harrison apparently did not pay the fees, thus causing the OPRA plaintiff's lawyer to apply for the writ of execution on March 14, 2013.

I do not know if Harrison has since paid the debt.  I have submitted another OPRA request to find out and will post the results here.

Friday, November 28, 2014

Local Bergen PD honors Judge Doyne's decision--Releases Internal Affairs charges.



After Bergen County Superior Court Assignment Judge Peter E. Doyne's October 16, 2014 ruling (on-line here) that police internal affairs records are not exempt from disclosure, I submitted an Open Public Records Act (OPRA) request to the Borough of Edgewater seeking police disciplinary records.  While I was expecting recalcitrance, I found Edgewater's response, on-line here, to be compliant with Judge Doyne's ruling.

I have never before seen a disclosure that identifies police officers who were internally charged, a summary of the charges and an indication as to whether or not the charges were sustained.  For example, the documents show that in 2014, Officer William Wallach was suspended for 10 days "for not complying with orders and removing documents from headquarters without permission."  Another example is a May 20, 2014 charge that Officer Konstantina T. Savrides "had poor demeanor and refused to take a motor vehicle accident report" which was determined to be "not sustained."


Monday, November 24, 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.




Mark Demitroff v. Buena Vista Township et al
Atlantic County, Docket No. ATL-5662-14
Hon. Nelson C. Johnson, J.S.C.
November 18, 2014
Click here for the court's decision.

Summary:  Video taken by camera mounted in rear of room where municipal court and governing body meets is subject to disclosure, despite municipality's claim that video from camera would reveal "blind spots" and thus allow a person seeking to harm government official to adjust his or her movements to avoid being within recording scope of camera.

Saturday, November 22, 2014

OPRA lawsuit seeks info on investigation of Margate firefighter.

On Monday, December 15, 2014, at 10 a.m., Atlantic County Superior Court Judge Nelson C. Johnson will hear my case against the Atlantic County Prosecutor's Office seeking access to records related to a Margate firefighter's alleged misappropriation of approximately $50,000 from the local chapter of the Firefighters Mutual Benevolent Association (FMBA).

Documents from my case, Paff v. Atlantic County Prosecutor's Office et al, Docket No. ATL-L-5747-14, filed by West Berlin attorney Donald M. Doherty, are on-line here.

After receiving an anonymous tip, I originally requested information on the alleged theft from the City of Margate.  In response, Margate's lawyer confirmed "that there is currently an investigation being conducted by the Atlantic County Prosecutor’s office re a Margate Firefighter" and that "no charges have been filed to date."

In response to my follow up request to the Atlantic County Prosecutor's Office, Assistant Prosecutor Kathleen E. Bond stated that she could not "confirm or deny the existence of such an investigation" and that if an investigation did exist, "any additional information responsive to your request . . . would remain confidential."

Burlington County Mayor fined $100 for ethics violation

On November 17, 2014, New Jersey Local Finance Board Chairman Thomas H. Neff issued a Notice of Violation and assessed a $100 fine against the mayor of a small Burlington County borough. According to the Notice of Violation, the borough had made purchases from the mayor's parents' business of which he was an employee.

The fine was levied against Wrightstown Mayor Thomas E. Harper and arose out of a November 11, 2011 ethics complaint filed by John Paff and the New Jersey Libertarian Party.  The ethics complaint and Notice of Violation are on-line here and here, respectively.  Paff and the Libertarian Party had complained that Harper had an interest in a local automotive service station named Tom's Service Center during 2010 when Wrightstown Borough paid the business $11,799.45 for fuel and repair services.

In the cover letter that accompanied the Notice of Violation, available at the link above, Neff put additional questions to Mayor Harper regarding discrepancies in his Financial Disclosure Statement (FDS) forms submitted from 2010 through 2014.  In his letter, Neff instructed Harper to "explain the discrepancies" and "have each FDS referenced herein corrected and resubmitted to the Board for review."

Paff and the Libertarian Party had previously filed three other ethics charges (here, here and here) against Mayor Harper and his wife, all of which were dismissed.