Friday, July 31, 2015

Pair of OPRA cases against Cumberland County to be heard on August 5th.

On Wednesday, August 5, 2015 at 9:30 a.m., Cumberland County Assignment Judge Georgia M. Curio will hear oral argument on a pair of Open Public Records Act (OPRA) cases filed against Cumberland County.  The hearing will be in Courtroom 346 in the Cumberland County Courthouse in Bridgeton.

The cases are both captioned Scheergie Nicolas v. County of Cumberland, et al, and bear docket numbers CUM-L-334-15 and CUM-L-335-15.  Both were filed on May 19,2015 by Laurel Springs firm of Conrad J. Benedetto.  In both cases, Nicolas, who works the Benedetto firm, filed OPRA requests on March 11, 2015 seeking records pertaining to Cumberland County Jail inmates Rashee Barlow and Rasheem Jacobs. The lawsuits were reported in the May 28, 2015 South Jersey Times.

The records sought in Docket No. CUM-L-334-15 are documents and videos regarding an alleged January 4, 2015 incident between Barlow and Corrections Officer Dawkins (no first name given).  The records sought under CUM-L-335-15 include videos and documentation of an alleged February 25, 2015 assault on Jacobs.

In his response to Docket No. CUM-L-334-15, Cumberland County Solicitor Theodore E. Baker said that Omarey Williams, the County's former custodian of records, requested additional time to produce the records but Benedetto's firm filed suit without responding to Williams' request.  Baker states that all responsive documents that exist were produced on May 28, 2015 and June 10, 2015.

In his response to Docket No. CUM-L-335-15, Baker did not admit that the County received the OPRA request, denied that the request was valid and claimed that the County lacked "sufficient information or knowledge" to say whether or not Nicolas had received a response to his request prior to the lawsuit's filing.  In his defenses to the lawsuit, Baker claimed that all responsive documents were exempt as criminal investigatory records since they "were subject to a criminal investigation by the Cumberland County Prosecutor's Office."

The public and press are invited to attend but are urged to call the court at 856-453-4303 or 856-453-4330 the day before the hearing to make sure it hasn't been adjourned.

Judge orders disclosure of police report's description of incident involving Bound Brook teacher.

On July 28, 2015, Somerset County Assignment Judge Yolanda Ciccone ordered the Borough of Bound Brook to disclose the "narrative description" of a police CAD report regarding an October 29, 2014 incident involving a 24-year-old former Bound Brook High School teacher and juvenile who is identified in report as the "Victim."

Hopefully, the ordered disclosure will resolve the mystery over why the teacher, Kimberly Charnuska, was fired on November 24, 2014.  Charnuska's lawyer has publicly claimed that his client did nothing wrong--and even called her a "modern day Mother Teresa"--who was terminated because of "unscrupulous decision-making" by Bound Brook Superintendent Daniel Gallagher that was based on "a false and malicious rumor."

Judge Ciccone's order, which was not accompanied by any written decision or statement of her reasons, instructs Bound Brook to produce the report within thirty days except that "information pertaining to minors" and "MNI numbers" may remain redacted.  The redacted version of the CAD report that I received prior to filing my lawsuit is on-line here.  Ciccone's order also invited my attorney, Richard M. Gutman of Montclair, to submit a certification setting forth his costs and attorney fees.

Lawsuit claims that Bridgeton violated Open Public Meetings Act.

According to July 22, 2015 court filing, the City of Bridgeton entered into a "secret agreement" with its Municipal Port Authority in order to evade a $823,000 judgment against the Authority.  The lawsuit alleges that Bridgeton officials violated the Open Public Meetings Act (OPMA) "by not disclosing at the public meetings the agreement between the City and the [Port Authority]."

According to the Second Amended Complaint filed in Henry Grove Diversified Investments, LLP and Thomas Martin, v. Bridgeton Municipal Port Authority, et al, Docket No. CUM-L-425-15, the "non-functioning, debt ridden and mismanaged" Port Authority entered into a secret agreement to sell its assets to the City for $225,000 in an apparent attempt to limit its liability to Henry Grove--the holder of the judgment--to the $225,000 realized through the sale.  The sale, according to the lawsuit, furthers the City's belief that "it can somehow evade the Fiscal Control Laws and specifically N.J.S.A. 48A:5A-20 and dissolve the [Authority] and not be required to pay the unpaid bills."

The suit claims that the Port Authority, which the Chairman of the Local Finance Board described in October 2014 as lacking any purpose, "is simply a puppet of the City of Bridgeton [which] has acted as the alter ego of the City of Bridgeton and is controlled by [Mayor Albert B. Kelly]."  Kelly, who serves as Bridgeton's Mayor and also as a member of the Port Authority, made the motion at the Port Authority's May 13, 2015 meeting to sell its assets to the City.

As for the OPMA violation, the lawsuit alleges that "the decision to sell assets from the [Authority] was done in secret. There is no written contract. It was not discussed ]and properly vented at a public session of the [Authority] the City of Bridgeton. Ultimately a resolution by the [Authority] was passed but the actions of the City and the [Authority] are violative of the New Jersey Open Public Meetings Act."  The OPMA states that the public's right to observe governmental decision making "is vital to the enhancement and proper functioning of the democratic process."

Wednesday, July 29, 2015

Government Records Council affirms that there is no statute of limitations to bring a GRC Denial of Access Complaint.

In case there is any doubt, the Government Records Council (GRC) held on July 28, 2015 in Paff v. Harrison Township Fire District that a) there is no statute of limitations on filing a GRC Denial of Access Complaint and b) that the GRC is without authority to impose a statute of limitations on requestors.

Tuesday, July 28, 2015

LFB sent out violation notices to thousands of local government officers and dismissed complaints against about fifteen hundred others without investigating them.

According to a transcript of the June 10, 2015 Local Finance Board (LFB) meeting, Board member Ted Light praised the LFB's staff for clearing 173 uninvestigated ethics complaints, filed by me and John Schmidt (who serves with me on the New Jersey Foundation of Open Government (NJFOG) Board of Directors) against 1,504 local officials across the state.  The praise was offered even though the complaints had not been fully investigated.
I just want to mention that you and the staff are doing an excellent job on completing these and clearing them up. I mean, they've  been hanging for so many years it's nice to see them off the agenda docket.
According to LFB Chairman Tim Cunningham, Schmidt's and my complaints had been allowed to languish and over the years became too old to investigate and enforce.  I've placed a copy of a recent complaint log on-line that has the dismissed complaints highlighted.  The officials named in those complaints have effectively been given a pass. (I have been complaining about the LFB's complaint procedure since 2010.)

According to Cunningham:
There is significant number of historic or older financial disclosure statement complaints that have been filed against several parties. And that's resulted in a backlog within the Local Finance Board's ethics responsibilities. And the Board is today being asked to administratively close 173 complaints that were made against 1,504 local government officers and cover a time period from 2008 through 2013. 
The fact that the Department -- the Division, I should say, has gone to an electronic filing system has really obviated the need for continued complaints by constituents and citizens. As this Board is well aware, notices of violation were recently sent out to thousands of non-filers for the 2014 cycle. Therefore, the idea of pursuing complaints from 2008 through, you know, you know, '13 those complaints are rather historic at this point. People may no longer be in office. People may have moved. People may have passed away. And frankly, we know that to be the case. So now that we have a better system in place we feel it prudent -- from the Division standpoint we feel it prudent to administratively close these out.
Cunningham's statements suggest that the new electronic filing procedure is working well and is a step forward for the LFB.  Cunningham reported that 288 local government officials each submitted $100 checks for a total of $28,800.

But, a verbal report given during the meeting by LFB staff members Dana Jones revealed that of the thousands of violation notices issued, the recipients of 467 of them have appealed and that perhaps 200 more appeals will be received over the next few months.  The appeals were apparently well taken because the LFB voted to waive the fines imposed in many of those cases (I am working to determine exactly which officials were issued notices of violation, which ones remitted fines and which ones had their fines waived).  While it is not exactly clear, it appears (based in part on a telephone conversation I had with Cunningham) that fines were issued against hundreds of officials who municipal clerks erroneously listed as holding positions or offices when they actually no longer held those offices or positions.

Judge to consider OPRA fines against South Bound Brook Borough Clerk.

Yolanda Ciccone, A.J.S.C.
On August 6, 2015, Somerset County Assignment Judge Yolanda Ciccone will consider whether South Bound Brook Borough (Somerset County) Clerk Donald E. Kazar should be fined $2,500 for knowingly, willfully and unreasonably denying several requests filed pursuant to the Open Public Records Act (OPRA).

In his lawsuit, former Borough Police Chief Robert A. Verry alleged that Kazar improperly responded to four OPRA requests seeking e-mails between and among Borough officials.  Kazar denied the first request based on it being too broad and not specific enough to satisfy OPRA's requirements.  Verry refused Kazar's requests to extend the time for him to respond to the latter three requests. Verry said that he refused because Kazar engages "in a pattern and practice of requesting significant extensions of time to respond to [Verry's] OPRA requests for e-mails and correspondences only to then ultimately deny the request because he erroneously maintains they are overbroad and invalid."  In response to Verry's refusals, Kazar wrote "Then I guess u will be filing a complaint."

Verry's lawsuit, brought by CJ Griffin of Hackensack, alleges that Kazar knew that Verry's requests were valid because the Government Records Council (GRC) had previously and repeatedly upheld the validity of "similarly worded requests" filed by Verry but denied by Kazar.  The lawsuit also asserts that Kazar had previously been fined $1,000 in May 2007 for knowingly and willfully violating OPRA and that the Office of Administrative Law is presently considering fining him in another case.  In addition to fining Kazar, Verry's present lawsuit seeks access to the denied records and payment of Verry's attorneys fees and costs.

Monday, July 20, 2015

LFB Rosters to be kept on-line

Each time I obtain a roster of ethics cases from the Local Finance Board, I'm going to update this entry to include those rosters.  This way, the public, by comparing the two most recent rosters can see which cases have been resolved between the dates of their issuance.  I realize that this is a ridiculous manner in which to find out which cases the Local Finance Board adjudicates, but given the Board's efforts to thwart transparency regarding its ethics law enforcement, it's the only way I know how to do it.

December 12, 2014
June 22, 2015
July 28, 2015