Wednesday, December 6, 2017

Lawsuit seeks to compel Salem County to pay OPRA attorney fee.

On June 27, 2017, the Government Records Council (GRC) ordered Salem County to pay my attorney $2,310 in fees after having previously found on April 25, 2017 that the County violated my rights under the Open Public Records Act (OPRA). The County has thus far ignored several requests to pay the fees necessitating a lawsuit to compel payment of the $2,310 plus additional fees and costs for having to bring the lawsuit.

The original GRC matter was Paff v. County of Salem, GRC Complaint No. 2015-342.  The new court matter is Paff v. Salem County, Docket No. SLM-L-222-17. Superior Court Judge David M. Morgan has issued an order requiring the County to appear in court on Friday, December 22, 2017 at 1:30 p.m. to show cause why it should not be required to pay the overdue fees.

My attorney is Ted M. Rosenberg of Moorestown and Salem County is being represented by County Solicitor Michael M. Mulligan.

Friday, December 1, 2017

3,974 lines of OAL open case data are now on-line in an Excel file.

On July 31, 2017, I reported that the Office of Administrative Law (OAL), in response to an Open Public Records Act (OPRA) request, disclosed an Excel file containing docket information on about 350 cases.  As I noted in my article, government agencies, in accordance with the Supreme Court's June 20, 2017 ruling in Paff v. Galloway, are now obliged to extract information from government databases in response to OPRA requests.

After writing my article, the OAL released an expanded list that contains docket information on all of its cases that were active on August 1, 2017.  The list, set forth in an Excel file which I've placed on-line here, contains 3,974 lines of data.  Since some are duplicates, this may represent about 2,000 separate cases.

To my knowledge, apart from the Excel file at the above link, the OAL has provided no method for members of the public to access its case docket.  Accordingly, cases are filed and adjudicated without anyone other than the parties and their lawyers knowing that these cases exist.

Some of the cases are of significant public interest, such as the State Board of Examiners cases.  These cases, represented by the code EDE in Column D, list the names of school teachers and administrators some of whom are contesting the suspension of their certificates. (Note: Column "D" of the table contains a three-character code that identifies the agency where the case originated. A table that lists each the three-character codes and its corresponding agency is on-line here.)  Some of those matters have public hearings scheduled that will take place during the next several weeks.  For example, someone named David C. Raffo is listed to appear before Administrative Law Judge John Scollo in Newark on January 10th and 11th of 2018.  A Google search on Raffo's name shows that the Board of Examiners issued an Order to Show cause to him at its March 3, 2017 meeting to determine "why his certificate(s) should not be revoked based on the level and nature of the conduct."

While the database and Internet searches do not reveal the nature of Raffo's alleged underlying conduct, an interested member of the public or media could submit an OPRA request for the case documents and perhaps glean an understanding of the issues and attend the hearing to observe the proceedings.  While in a perfect system all of public case information would be on-line, this Excel table at least provides members of the public and press with a roadmap that they can follow to obtain that information.

Wednesday, November 29, 2017

An open letter to Monmouth County Assignment Judge Lisa P. Thornton

Even though I ultimately received the records that the plaintiff's attorney sought to have sealed, public access to those records was delayed for about a month.  I advocate not only for access to non-exempt government records but for prompt access to those records.  Accordingly, I have brought my concerns regarding how access to these court records was improperly delayed to both Judge Thornton and the public by way of this open letter.
November 29, 2017

Dear Judge Thornton:

RE: Snyder v. Gramiccioni, Docket No. MON-L-2856-16

Thank you for permitting me to appear before the court telephonically on November 17, 2017 to argue against the plaintiff's motion to seal the court record. I have had a chance to review the documents that your office sent me yesterday and would like to bring to the court's attention a rule violation that I believe worked to impermissibly deprive the public of information about the captioned matter for over fifteen months.

The rule at issue is a July 1, 2010 amendment to R.1:38-11 that added the following paragraph (d):
Documents or other materials not exempt from public access under Rule 1:38 may not be filed under seal absent a prior court order mandating the sealing of such documents, and should not be submitted to the court with the motion, which may be filed on short notice, requesting an order to seal.
The amended rule establishes that a normally non-exempt record, such a civil complaint, may not be filed under seal unless a prior court order that seals the record has already been entered.  Thus, if plaintiff's lawyer, Mr. Cushane, wished for his client's complaint to be sealed, he ought to have first filed a motion that set forth the "good cause" requirements of R.1:38-11.  Then, if the motion was granted, he could have filed his client's complaint under an assurance that it would remain under seal unless and until an order to unseal it was entered.  If the motion to seal was denied, Mr. Cushane and his client could elect either to proceed publicly or abandon the lawsuit, depending on the level of importance they assigned to the client's privacy.

What Mr. Cushane did, however, was file both the amended complaint and the motion to seal simultaneously on August 16, 2016. (Note: The original complaint, filed on August 4, 2016, was correctly rejected by the Court because it impermissibly identified the adult plaintiff by his initials rather than his full name.)  Then, the motion to seal remained pending for more than sixteen months until it was finally adjudicated on November 17, 2017.

Mr. Cushane's motion filing, which violated the rule's admonition (i.e. "[records for which sealing is sought] should not be submitted to the court with the motion"), also had the unfortunate effect of being treated by the Monmouth County Prosecutor's Office (MCPO) as the equivalent of a sealing order.

On October 23, 2017, my non-profit organization submitted an Open Public Records Act (OPRA) request to the MCPO for records that were filed in this case.  Even though no sealing order had yet been entered, Jennifer Lipp, the MCPO's records custodian, denied the OPRA request on the strength of Mr. Cushane's pending motion.  In her October 23, 2017 e-mail, she wrote: "I have a duty to protect people’s privacy interests including medical, mental health, substance addiction, domestic violence, among other privacy interests.  The motion is pending.  Unless Judge Thornton tells the lawyers involved that she is not going to seal the record, I am not going to release them.  Knowing there is a pending motion before the Assignment Judge could also be an ethical violation for me.  Once Judge Thornton rules, I will let you know."

In other words, Ms. Lipp treated the pending motion as a fait accompli even though it had not yet been adjudicated.  Had Mr. Cushane abided by R.1:38-11(d), the sealing motion would have been determined shortly after the August 2016 filing and Ms. Lipp's grant or denial of the OPRA request would have been dictated by the court's decision to grant or deny that motion.

At this point, I seek no remedy because, even though my access to these records was delayed for about a month I have now received them.  I write only to inform the court of the denials and delays that the public faces when R.1:38-11 is disobeyed.  I ask that the court keep my concerns in mind going forward.

Very truly yours,

John Paff

cc. Thomas Cushane and Jennifer Lipp

Court file released. Turns out case was filed by a former Marlboro police sergeant who wants to be declared "psychologically fit."

On November 7, 2017, I wrote an article titled "Who is T.S. and why is he or she suing the Monmouth County Prosecutor and seeking to have the lawsuit sealed by the court?"  After a November 17, 2017 hearing, at which I participated both by filing a certification and letter brief and by arguing telephonically, Monmouth County Assignment Judge Lisa P. Thornton denied the sergeant's motion to seal the file and released most of the court filings to me.  We now know that the suit was filed by a fired Marlboro Township police sergeant who seeks to be declared "psychologically fit to be conditionally rearmed and to conditionally return to full duty" after having reportedly been cleared by two psychologists who examined him after two separate incidents.

The essential facts, as alleged in former Marlboro Sergeant Timothy Snyder's lawsuit, are that Monmouth County Prosecutor Christopher J. Gramiccioni twice disallowed Snyder from possessing a firearm.  The first time was on May 10, 2015 after Snyder's arrest for domestic violence--charges that Snyder claimed did not result in a conviction.  The second time was on October 16, 2015 after Snyder was suspended by Marlboro Police Chief Bruce Hall when an "officer-in-crisis" report was filed after an incident that occurred in Snyder's home.  The object of the lawsuit is to compel Gramiccioni to return Snyder's firearms and accept recommendations, made by separate psychologists who examined Snyder after each incident, that Snyder is fit for duty.  Snyder has a separate, administrative matter pending before the Office of Administrative Law that contests Marlboro's reported decision to fire him effective June 3, 2016.  This is only a summary. The court filings are available for those who want more details.

Snyder originally filed his lawsuit in August 2016 using only his initials, T.S., to identify himself.  Judge Thornton quickly rejected this attempt and required Snyder's lawyer, Thomas A. Cushane of Vineland, to refile the suit using Snyder's full name.  (Unfortunately, Thornton's decision did not cause the court's publicly-accessible, electronic docket to be updated.  The docket, known as the Automated Case Management System (ACMS), identified the plaintiff as only "T.S." until mid-November 2017.)  Also during August 2016, Cushane filed a motion to "seal any and all court records—including the complaint itself--in light of the extremely sensitive nature of the psychological reports and evaluations referenced at length therein as well as Snyder's public standing in the community as a municipal law enforcement officer."

In support of his motion to lock down the entire file, Cushane argued that while the public has a common-law right to inspect court records, the public's confidence in his client's ability to function as a police officer would be undermined if members of the public had "unfettered access" to documents filed in Snyder's lawsuit. The prosecutor's office argued that Cushane's position was "too broad" and that if "the Court were to accept that, then it would have to seal the records in every case where an officer's reputation or ability could be called into question."

Ultimately, Judge Thornton ruled that the court filings be released to the public while Snyder's psychological reports are sealed.

Wednesday, November 15, 2017

Appellate Division: Release that settled lawsuit is disclosable at time settlement terms are agreed to by the parties.

Are lawsuit settlement agreements subject to disclosure when the settlement terms are first hammered out and agreed to by the parties or can agencies suppress settlement information until all the paperwork is signed, sealed and delivered?  This is an important question because weeks or sometimes months elapse between a lawsuit's parties' informal--yet binding--agreement to settle and the signing of a formal agreement by all parties.  During those weeks or months, many public agencies deny access to settlement agreements thus depriving the public of important settlement information.

The case law on this issue has so far has been mixed.  Judges in Essex, Hudson and Passaic Counties have ruled that agencies must disclose settlement agreements as soon as the settlement's essential terms have been agreed to and reduced to writing.  (William Paterson University, however, has appealed the Passaic County judge's ruling and that appeal remains pending.)  But, a judge in Mercer County has reached the opposite conclusion.

Today, an Appellate Division panel has come out on the side of early release.

On November 15, 2017, a two-judge Appellate Division panel issued an unpublished (and thus non-precedential) opinion holding that a release that settled a lawsuit was final and required to be disclosed to an Open Public Records Act (OPRA) requestor when "the terms of the settlement were agreed to between the attorneys for the respective parties" even though "the stipulations of dismissal were not filed and the settlement checks were not delivered until after" the parties' attorneys came to their agreement.  The panel also said that releases and settlement agreements that settle lawsuits are "contracts" which must be made "immediately available" in accordance with N.J.S.A. 47:1A-5(e).

The opinion reversed a Final Agency Decision of the Government Records Council (GRC).

Tuesday, November 14, 2017

Appellate Division: Local Finance Board lacked quorum to decide ethics matter.

In a November 14, 2017 unpublished (and thus non-precedential) opinion, a three-judge panel of the Appellate Division ruled that four members of the eight-member Local Finance Board (LFB) were not statutorily authorized to rule on a Local Government Ethics Law (LGEL) complaint against a Franklin Township (Somerset County) Fire Commissioner.

According to the opinion and a January 13, 2016 LFB decision, the Franklin Township Ethics Board ruled in 2011 that Fire District 1 Commissioner James Wickman violated the LGEL by voting "to settle a sexual harassment lawsuit filed [in 2009] against the Commissioners of Franklin Township Fire District No. 1 in which he was also an individually-named defendant."  The LFB reversed the Franklin Ethics Board's determination and vacated a $250 fine it had levied against Wickman.  The LFB found that "Wickman's limited involvement in the underlying sexual harassment litigation did not rise to the level of a direct or indirect financial or personal involvement that might reasonably be expected to impair his objectivity or independence of judgment [and] that Wickman did not use or attempt to use his official position to secure an unwarranted privilege or advantage for himself."

Jeff Carter, a Franklin Township resident and brother of the woman who filed the underlying sexual harassment lawsuit, appealed the LFB's decision to the Appellate Division.  The Appellate Division found that N.J.S.A. 40A:9-22.9 required that LFB decisions "shall be made by no less than two-thirds of all members of the [B]oard."  Accordingly, the panel ruled, "at least six of the Board's eight statutorily-commanded members had to participate in the decision it rendered in this case."  Since only four members were present to vote, the Appellate Division found that "the decision is void," vacated it and remanded the matter back to the LFB for further proceedings.

Saturday, November 11, 2017

Appellate Division: Courts are empowered to penalize government officials for knowing and willful OPRA violations.

There has been some confusion over the power of Superior Court judges to assess monetary penalties against records custodians and other government officials who knowingly, willfully and unreasonably violate the Open Public Records Act (OPRA)

The confusion stems from the Appellate Division's August 5, 2008, unpublished opinion in Hirsch v. City of Hoboken.  In that case, a three-judge panel held that the Superior Court lacks the authority to issue civil penalties against government officials because the court's "role under OPRA is not as broad as the role of the Government Records Council (GRC)."

On August 3, 2017, the Appellate Division issued a published opinion in North Jersey Media Group, Inc. v. Office of the Governor, 451 N.J. Super. 282 that rejected this limitation.  This precedential opinion states that both the Superior Court and the GRC are empowered to assess civil penalties against records custodians in appropriate cases.

Under N.J.S.A. 47:1A-11, "[a] public official, officer, employee or custodian who knowingly and willfully violates [OPRA} and is found to have unreasonably denied access under the totality of the circumstances, shall be subject to a civil penalty of $1,000 for an initial violation, $2,500 for a second violation that occurs within 10 years of an initial violation, and $5,000 for a third violation that occurs within 10 years of an initial violation."