No attorney fees for common law access cases

By way of a May 2, 2013 order, the New Jersey Supreme Court declined to consider my appeal of the Appellate Division's reversal of a trial court's award of attorney fees  in a case where I won access to records under the common law right of access but was denied access under the Open Public Records Act.  The case is Paff v. Borough of Garwood and background can be found here.

The effect of this ruling is that attorney fees are not available to records requestors who successfully sue for access under the common law.

The Appellate Division's opinion and the Supreme Court's order are on-line here and here, respectively.

Secretary of State OPMA Guidelines

Published in 1992, the Department of State's "Guidelines on the Open Public Meetings Law" still contains relevant information that can be used to persuade and educate public bodies.  For example, page 15 confirms that public meeting minutes must be disclosed when they are prepared, not withheld until after they are approved by the public body.

How much is the Warren County Pollution Authority Director's annual salary?

Update: 04/11/2013:

I received the following e-mail today from Mr. Williams:
  
Mr. Paff,

Your e-mail below has been forwarded to all the PCFA Board Members.

You will also find listed below my annual salary as reported on the W-2 forms for the following years:

2008=$96,000

2009=$97,920

2010=$99,879

2011=$106,969

2012=$106,969

2013= As of this date, the Authority has not set or discussed employee raises for 2013, therefore as of this date my salary for 2013 remains at $106,969.

 

Jim

 ---------------------------------------------------

April 9, 2013

Robert Davenport, Chairman and members of the Board of the
Pollution Control Financing Authority of Warren County
P.O. Box 587
Oxford, NJ  07863
(via e-mail only to jwilliams@pcfawc.com)

Dear Chairman Davenport and Board members:

As you can see from the subject line of this e-mail, I am interested in learning the answer to what should be a fairly straightforward question: How much does James J. Williams get paid as the Authority's Director of Operations?

A colleague of mine has been working on obtaining an answer since February.  First, she submitted an Open Public Records Act (OPRA) request for the contract between Williams and the Authority.  She received a February 22, 2013 letter from the Authority advising that the Authority has no such contract. 

Next, she submitted an OPRA request for "any resolutions or writings that set forth the basis for [Williams'] compensation."  In response, she received twenty pages of records consisting of the Authority's regular and executive meeting minutes.  I have put those twenty pages on-line here for your ready reference and my analysis of them follows:

• The April 9, 2008 executive session minutes indicate that Williams was awarded a "salary approval of $96,000."  No regular meeting minutes regarding this salary were provided.
• Page 2 of the March 11, 2009 regular meeting minutes indicate that "2009 Salaries . . . will be discussed in Executive Session."  Page 3 of those minutes indicate that Williams' salary was indeed discussed behind closed doors and that the following motion was unanimously approved in public: "Mr. Williams' salary was motioned for approval by Mr. Accetturo, seconded by Mr. Yanoff."  Note, however, that the amount of his salary was not set forth in the motion.
• The only reference to salaries in the April 28, 2010 regular meeting minutes is Mr. Yanoff's successful motion, on page 3, "to approve pay increases of 2% across the board."  This informs the public that Williams, among others, received in 2010 102% of what he had been paid in 2009.  This information, of course, is of little utility since actual amount Williams was paid in 2009 remains undisclosed.
• Page 5 of the February 23, 2011 regular meeting minutes indicates that Williams received "what basically works out to be a 5% increase . . . for exemplary job performance."  Again, however, the base amount to which this percentage increase applies was not disclosed.  The February 23, 2011 executive meeting minutes reveal nothing more than that "job titles and salaries" were the sole discussion item during that one hour and three minute closed door meeting.  But, fortunately, DataUniverse shows that Williams' 2011 salary was $106,968.
• Since they don't mention Williams' salary, it's not clear why the June 27, 2012 regular meeting minutes were provided.  The only reference to salaries is Mr. Mach's motion, on page 3, to approve a 1.5% increase for all non-salaried employees.  Since Williams is evidently on salary, this motion apparently does not apply to him.

It's more than a bit distressing that the Authority doesn't have records that plainly set out important facts such as the salaries of top officials.  Needed are public meeting minutes that contain resolutions such as "Resolved, that the salary of Director of Operations James J. Williams shall be $120,000 for the 2013 calendar year."  Such would enable interested members of the public to easily obtain information about the Authority's operations.

Do you agree with me that plainer, clearer resolutions would be in the public's interest?  If so, will you agree to discuss this e-mail with the Board at its April 22, 2013 meeting?

If you do elect to discuss this e-mail at the meeting, I would also ask that you discuss the Board's apparent policy of discussing and deciding Mr. Williams' salary during executive session.  While I understand why the Board may want to privately and candidly discuss Mr. Williams' performance outside of his presence, I note that both the April 9, 2008 and February 23, 2011 executive session minutes show that Mr. Williams attended these closed-door meetings.  Thus, the only people who were kept in the dark about Mr. Williams' salary were citizens and taxpayers--those for whom the Open Public Meetings Act was designed to inform.

A dose of transparency would, in my view, be especially good medicine for the PCFA given the controversy that has surrounded it lately.  See, e.g. "Warren County Pollution Control Financing Authority investigation labeled 'whitewash' by whistleblower," Express-Times, August 5, 2012 and "Warren County landfill looks to recoup $116,565 stolen by clerk," Express-Times, March 28, 2012.

Although OPRA doesn't require the Authority to create records that do not exist, would you extend the courtesy of creating and sending me a record that lists Mr. Williams' annual compensation (i.e., the amount reported on his W-2 form) for each year beginning in 2008 and ending with what is projected for 2013? 

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

Very truly yours,

John Paff, Chairman
New Jersey Libertarian Party's
Open Government Advocacy Project
P.O. Box 5424
Somerset, NJ  08875
Voice: 732-873-1251
Fax: 908-325-0129
e-mail: paff@pobox.com

LFB dismisses ethics complaint against badge-flashing Voorhees Deputy Mayor.

On January 22, 2013, Thomas H. Neff, chairman of the New Jersey Local Finance Board (LFB) notified me that my ethics complaint against Voorhees Township (Camden County) Deputy Mayor Mario DiNatale was dismissed by a 3 to 1 vote.  (The LFB has six members, but only four--Neff, Ted Light, James P. Fox and Francis Blee were present at the January 9, 2013 meeting where the vote was taken.  Idida Rodriquez and Alan W. Avery were absent.  Neff cast the "no" vote. ) 

I had complained to the LFB on January 17, 2012 after reading a January 11, 2012 Courier Post article entitled "Abuse of badges may cost them badges" by Jeremy Rosen.  The article reported that Berlin Township (Camden County) police officer Wayne Bonfiglio had stopped Deputy Mayor DiNatale on January 5, 2012 for having a rejected red inspection sticker and improperly tinted windows on his vehicle.

According to a January 5, 2012 e-mail that Bonfiglio had sent to Voorhees Police Chief Keith Hummel, when he approached DiNatale's car, DiNatale held a police badge out the driver's side window.  Bonfiglio, who "could not believe that a police officer would openly display his badge on a car stop in front of so many witnesses" asked DiNatale if he was a police officer.  According to Bonfiglio, DiNatale "simply replied, 'Voorhees Township Police.'"

Bonfiglio, who knew all the Voorhees police but didn't recognized DiNatale, challenged DiNatale's claim that he was a police officer.  At that point, DiNatale explained that he was the Voorhees Deputy Mayor and had received a a police badge because served in a "liaison role" as the Township Committee's public safety director.

According to Bonfiglio, he didn't issue DiNatale any summonses "out of respect for [Chief Hummel].  Rather, he told DiNatale to remove the tint from his windows and get his vehicle inspected. He also opted to send his e-mail to Voorhees Police Chief Hummel.

After reading the article, I concluded that DiNatale's actions constituted a violation of N.J.S.A. 40A:9-22.5(c), which states: "No local government officer or employee shall use or attempt to use his official position to secure unwarranted privileges or advantages for himself or others."  I felt, and still feel, that flashing a police badge to get yourself out of a ticket falls squarely into the category of using one's official position to secure an unwarranted privilege or advantage.

Yet, the LFB decided to give DiNatale a pass because he had sent an e-mail to Berlin Township Police Chief Joseph Jackson on January 16, 2012 (after the article was published in the Courier Post) "requesting that the appropriate tickets be issued to [him]."  DiNatale's magnanimous gesture (i.e. deigning to accept a traffic summons, just like us common folk), in the LFB's eyes, warranted mercy.

After receiving the LFB's dismissal letter, I submitted an Open Public Records Act (OPRA) request to Berlin Township for the e-mails back and forth between DiNatale and Berlin Police Chief Jackson, as well as copies of the traffic tickets that were ultimately issued to DiNatale.  In response, I was given a copy of DiNatale's e-mail to Jackson and was told that no summonses against DiNatale were on file.  I conclude from this that while DiNatale may have asked to be ticketed, he didn't actually receive any tickets.

So, the way I understand the LFB's view of the ethics law, if a public official is caught trying to use his or her official position to beat a traffic ticket, he or she will be excused from an ethics violation provided that he or she, after being caught, contritely asks for the ticket to be issued.  It matters not, however, whether any tickets are actually issued against the public official.  Rather, it's the thought that counts.

My ethics complaint, Neff's dismissal letter, the Courier Post article, my OPRA request to Berlin and Berlin's response are all on-line here.

A win, a loss and an adjournment in Belvidere yesterday

On Friday, February 1, 2013, Warren County Superior Court Judge Amy O'Connor ruled on two Open Public Records Act (OPRA) cases. A third hearing originally scheduled for the same day was postponed. The plaintiff in all three cases was represented by Walter M. Luers of Clinton. 

Carroll v. Warren County Community College Foundation
Docket no. WRN-L-385-12

At issue: Whether the Warren County Community College Foundation (WCCCF) is a government agency subject to OPRA.  The WCCCF is a non-profit agency that is closely associated with the Warren County Community College (WCCC) and secures grants and donations to fund scholarships for WCCC students.  (More information on the suit is set forth in the Express-Times' October 24, 2012 news article.)

Result: Judge O'Connor ruled that the WCCCF is a "public agency" as defined by OPRA.  The chief reason for her ruling was that WCCC, under the WCCCF's bylaws, retains the power to approve or reject nominees to the WCCCF's board of trustees.  This fact, along with others, caused Judge O'Connor to rule that "the Foundation, in essence, is an instrumentality of the College."

Among the records the plaintiff requested were the minutes of the Foundation's Board of Trustee meetings.  The WCCCF's attorney, Suzanne M. Marasco, said that although she had not seen the requested minutes, she felt that it might be unfair for them to be publicly released because the WCCCF Board, when those meetings were held, was operating under the assumption that the minutes would never be made public.  Luers countered that the minutes should be treated like a public body's executive session minutes, i.e. they were presumed to be publicly disclosable, but that certain portions may need to be redacted to protect legitimate confidentiality and privacy concerns.  O'Connor directed both attorneys to submit briefs on whether or not the minutes should be disclosed.

Carroll v. Phillipsburg Town
Docket no. WRN-L-397-12
 
At issue: Plaintiff requested a machine readable computer file of the town's 2011 payroll report.  The town offered to provide plaintiff, at no cost, with its report in PDF format, which, unlike a report provided in Excel, CSV or a delimited text file, is not easily searchable, sortable or capable of being filtered.  According to the town, its third-party payroll administrator, ADP, assesses the town a $150 fee to produce the report in the requested machine readable format--which would need to be paid by the plaintiff in order to get the report in that format.

Result:  Judge O'Connor ruled that PDF is a "meaningful medium" in accordance with N.J.S.A. 47:1A-5(d) and satisfied plaintiff's request, even though plaintiff would have to retype the data contained in the report in order to create her own machine readable and manipulable file.  Given this holding, the issue of whether the $150 fee was excessive was not reached.

Carroll v. Pohatcong Township
Docket no. WRN-L-413-12

At issue: In a sworn statement, Francesco Pagano, a former Township police officer testified that a police lieutenant "sexually assault[ed] two officers at work."  Is the report and other records related to this alleged assault subject to disclosure under OPRA or the common law?  Also, is the written agreement that Pagano and Pohatcong entered into at the time of his separation from employment disclosable as a public record?

Result: Hearing postponed until February 15, 2013.

Wrightstown Mayor, wife again cleared of ethics charge.

On July 10, 2012, I blogged about the New Jersey Local Finance Board (LFB) clearing Wrightstown (Burlington County) Mayor Thomas Harper and his wife Mary Karen Harper of violating the Local Government Ethic Law (LGEL).  I had filed a complaint against the Harpers because they, while members of Local Land Use Board, testified on April 14, 2009 in support of a land use application that a) was pending before the same land use board  upon which they served, and b) concerned a property that was adjacent to their residence.  I argued that even through they recused themselves from the land use hearing, it was still inappropriate for them to testify in support of their neighbor's application in their capacity as private citizens.

On July 24, 2012, two weeks after the LFB dismissed my complaint, the New Jersey Libertarian Party and I filed another complaint against the Harpers based on the same set of facts, plus one more: That Mrs. Harper had received, the year prior to her testimony, in excess of $2,000 from one of the "partner and clients" of the applicant.  I felt that Mrs. Harper testifying in support of an applicant after having recently having been on the applicant's "partner's or client's" payroll constituted a clear violation of the LGEL.

The LFB, however, disagreed.  In his January 18, 2013 letter, LFB Chairman Thomas H. Neff reported that the LFB had held that public officials are "not prohibited from representing themselves in negotiations or proceedings concerning their own interests" and that such "[s]elf-representation is permitted under the [LGEL] regardless of whether Mrs. Harper is an employee of a company that is allegedly a 'partner and client' of the applicant."  Accordingly, the LFB dismissed the complaint as "having no reasonable factual basis for violation of the Local Government Ethics Law."

The Libertarian Party's complaint and the Local Finance Board's dismissal letter are on-line here. We hope that publication of this matter will help local government officers better determine the contours of the Local Government Ethics Law.

John Paff, Chairman
New Jersey Libertarian Party's
Open Government Advocacy Project

P.S.  The Harpers have beat a total of three ethics charges I have brought against them.  Information on the third complaint is on-line here.

Mixed bag in Camden today

I attended my Open Public Meetings Act (OPMA) hearing today, January 11, 2013, before Judge Stephen M. Holden in Camden.  (Background information and case documents are available here.)  Following are the court's main holdings:

1. Even though the February 5, 2008 order that I sought to enforce required Lawnside to keep "reasonably comprehensive" minutes of its future closed meetings, Judge Holden decided, based on the context of the order, that Judge Orlando (now retired), who had entered the order, used the word "comprehensive" by error and actually meant to use the work "comprehensible."  This ruling resulted in significant harm to my case because "comprehensive" minutes are much more complete than ones that are "comprehensible."

2. Even under the lower "comprehensible" standard, the minutes of the Lawnside Borough Council's March 28, 2011,  May 30, 2012 and June 6, 2012 closed session minutes (on-line here, here and here) were insufficient because they did not include: a) the location of the meeting and b) any decisions made (as opposed to "action taken") at the meeting.  Further, the March 28, 2011 minutes were not comprehensible because it was impossible to tell from them what a discussion regarding "Public Works - Hours of Operation" entailed, and it wasn't even clear if the matter that was privately discussed legally qualified for discussion outside of the public view.

3. Even though the May 30, 2012 and June 6, 2012 closed meetings lasted, respectively, for 1.5 and 1 hours, Judge Holden found that other than the deficiencies noted in #2 above, they were reasonably "comprehensible" and consistent with the law. 

My lawyer, Walter M. Luers, argued that boiling two and a half hours of closed session discussion to the words "discussion ensued" appearing in the minutes was not enough, and that the minutes need to set forth at least a summary of the discussion that actually occurred.  Minutes should, for example, state: "The lawsuit plaintiff tendered a settlement offer of $100,000 and all except for Councilman Doe felt that the Borough's attorney should be authorized to offer plaintiff $85,000 and go as high as $100,000 if negotiations failed."

Mr. Luers also offered that in some situations, the detail in the minutes may need to be redacted before public disclosure in order to keep the adverse party from gaining a strategical advantage.  Luers then argued that even if closed minutes would forever be redacted, it is preferable to have minutes from which details are redacted rather than minutes from which those details are absent.  This is because more verbose minutes would aid future members of the Borough Council who would, of course, be allowed to read the minutes unredacted.

Judge Holden then made what I consider to be an erroneous ruling.  He held that a conversation between an attorney and his public body client was so "sacrosanct" that the possibility that some unauthorized person might wrongfully get a copy of an unredacted version of the closed minutes justifies the Borough Council's refusal to record anything regarding the nature of its attorney-client discussions within those minutes.  According to Judge Holden, attorney client discussions are so sensitive that they should not even be written down.

4. Mr. Luers argued that since our motion caused the Borough to change its minute recording process, I was the prevailing party and the court should exercise its discretion to award me my attorney fees.  Morris G. Smith, Lawnside's attorney, took this opportunity to launch personal attacks against me and to also argue that since I failed to achieve what he alleged was the main point of my motion--to get some details of attorney client conversation captioned in the minutes--that I was not the prevailing party.  Judge Holden agreed with Smith and declined to award me my attorney fees.  Yet, he did find that my motion met with enough success to warrant an order requiring Lawnside to pay my and Mr. Luers' out-of-pocket costs in filing and prosecuting the motion.