Tuesday, June 19, 2018

Names of fired public employees, identified only by their employee numbers, can be obtained through OPRA.

The minutes of some public agencies, often school districts, refer to agency employees by number rather than by name.  For example, the Perth Amboy (Middlesex County) school board's November 2, 2017 meeting minutes state that a majority of the Board (Board members Obdulia Gonzalez and Anton Massopust voted "no") voted to terminate "employee #XXX671" and "employee #XXX985."  This makes it difficult for the public to know which employees have been fired.  (Interestingly, the agenda of the same meeting stated that the Board had planned on approving "a settlement agreement and release agreement" for the same two employees.)

Section 10 of the Open Public Records Act (OPRA), fortunately, requires that "an individual’s name, title, position, salary, payroll record, length of service, date of separation and the reason therefor, and the amount and type of any pension received shall be a government record."  This means that in most cases a person can obtain the name of an employee by making an OPRA request even if the agency tries to obscure the employee's identity in its meeting minutes.

In this case, my non-profit submitted an OPRA request seeking the following:
1. For employee #XXX671, his or her "name, title, position, salary, length of service, date of separation and the reason therefor." See N.J.S.A. 47:1A-10.
2. For employee #XXX985, his or her "name, title, position, salary, length of service, date of separation and the reason therefor." See N.J.S.A. 47:1A-10.
The custodian's response, which is on-line here, contains the full names, ending salaries and years served by the School Security Officer and Custodian who were "terminated for cause." 

Monday, June 4, 2018

Appeals court rules that Union County jail's inmate suicide and overdose fatality incident reports are disclosable under OPRA.

On June 4, 2018, a two-judge panel of the New Jersey Superior Court, Appellate Division affirmed a Union County trial judge's January 3, 2017 ruling that incident reports of Union County Correctional Facility inmate deaths caused by suicides and drug overdoses are, subject to appropriate redactions, subject to disclosure under the Open Public Records Act (OPRA).

Union County based its denial of lawyer Conrad J. Benedetto's OPRA request on an Administrative Code provision that designates inmates' medical and psychiatric records as confidential and exempt from disclosure.  The trial judge, in a January 3, 2017 decision, disagreed with the County's position because Benedetto was seeking incident reports not medical records and ordered the County to disclose the records after redacting personal identifiers.

The County asked the trial judge to reconsider, arguing for the first time that the County did not keep logs or records of inmate deaths and that such information was only kept in each inmate's medical records.  Notably, the County did not offer an affidavit or certification supporting this claim and the judge expressed disbelief that the County did not maintain records related to inmates who died in jail.  The County appealed.

The Appellate Division judges also faulted the County for not submitting an affidavit or certification from a jail official supporting its claims and for instead asserting unsupported facts within its legal brief.  The panel ruled that assertions of fact not contained in a sworn affidavit or certification are not considered evidence and that the trial judge correctly rejected them.  Accordingly, the panel affirmed the trial court's ruling.

The Appellate Division panel's opinion is on-line here.  Benedetto was represented by Walter M. Luers of Clinton.  The County was represented by Assistant Union County Counsel April C. Bauknight.

Wednesday, May 23, 2018

Supreme Court orders disclosure of names and addresses of auction purchasers of confiscated sports memorabilia.

Chief Justice Stuart Rabner
On May 23, 2018, the New Jersey Supreme Court, in a unanimous decision, reversed a July 6, 2016 Appellate Division ruling that held that bidders who successfully purchased confiscated items at a county prosecutor's auction had a reasonable expectation that their names and addresses would be withheld from the public.

In the ruling that was reversed, the Appellate Division weighed several factors, known as the "Doe factors," (named after the 1995 Supreme Court case of Doe v. Poritz), that courts consider when determining whether a person's privacy interests outweigh the public's right to know under the Open Public Records Act (OPRA).  After analyzing the Doe factors, the Appellate Division panel held that the auction purchasers had a reasonable expectation of privacy because if their names or addresses were disclosed, they might become "targets of theft."

In today's decision, Chief Justice Stuart Rabner noted that "OPRA does not contain a broad-based exception for the disclosure of names and home addresses that appear in government records."  He wrote that OPRA protects a "citizen's reasonable expectation of privacy" (emphasis in original) and that in this case, the courts should not have even considered the Doe factors because officials at the Bergen County Prosecutor's Office, who opposed disclosure, "did not present a colorable claim in support of their privacy argument." 

"[I]t was unreasonable for a buyer to expect that the information requested would remain private. If anything, the sale of government property at a public auction is a quintessential public event that calls for transparency. To guard against possible abuses, the public has a right to know what property was sold, at what price, and to whom," Rabner wrote.

The non-profit corporation that I serve as Executive Director, Libertarians for Transparent Government, appeared as amicus curiae in this case and was ably represented by CJ Griffin of Hackensack.  The plaintiff, William J. Brennan, was represented by Donald F. Burke and the Bergen County Prosecutor's Office was represented by Craig P. Bossong.

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.
----------------------------------------------------------------
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.