Tuesday, December 29, 2009

School Board decides to stop audio-taping its public meetings

I know of many public bodies that do not audiotape their public meetings.  However, I don't recall any that have historically audio-taped their meetings but then decided to stop.  According to the following news article, the Sparta Board of Education (Sussex County) has decided to do just that.

The stated reason for ceasing the audiotapes is to prevent those tapes from being available for "discovery in future litigation."

John Paff
Somerset, New Jersey

Sparta differs on recorded meetings

December 28, 2009
By SETH AUGENSTEIN and BRUCE SCRUTON

newsroom@njherald.com

SPARTA -- The local council and school board have different ideas on audio recordings of their meetings.

The Board of Education approved a new bylaw last week that could halt the taping of its meetings.

Also last week, the council directed its employees to research the possibility of posting its recordings on the township's Web site for anybody to download.

School board president Jennifer Dericks and school business administrator Warren Ceurvels said recording board meetings is not required by law, and the board is concerned having them would open them up to "discovery" in future litigation. The district recently paid attorney's fees from a successful Open Public Records Act suit filed against the schools by a local citizen.

Mike Yaple, a spokesman for the New Jersey School Boards Association, confirmed recordings are not required by law. In fact, no government agencies are required to record meetings under the terms of either the Open Public Meetings Act or Open Public Records Act. Minutes taken by the secretary of the governmental entity are the record of what transpires at a meeting. Accordingly, the voluntary decision to tape or not to tape varies from district to district across the state, he said.

"It's not a one-size-fits-all proposition," Yaple said Monday.

Yaple said the association's sense is that most school boards across the state do not record their meetings, although many do, and some even go as far as videotaping and broadcasting board meetings on local public access stations.

Ceurvels said in 22 years working in eight school districts, Sparta is the only one he's encountered that tapes its meetings. There is no real need for it, legally or in terms of transparency, he said.

"There hasn't been a big outcry that we haven't been open to the public," he said.

The vote was 6-1 in favor of stopping the taping. The lone "no" vote was by vice president Kevin Pollison.

"My personal opinion is, as much information as possible is good," Pollison said afterward. "You can bring a recorder to the meeting, but not everyone has a recorder or can come to the meetings."

John Paff, chairman of the New Jersey Libertarian Party's Open Government Advocacy Project, said the school board's vote was "odd," given the ongoing push for open government in the state.

"The trend is to do opposite of what the school board is doing," Paff said. "How does that look? That sends exactly the wrong message."

Meanwhile, the Township Council directed Township Manager Henry Underhill to consider posting digital audio files on the township's Web site so they can be downloaded.

Councilman Brian Brady said he favored bringing information out to the public's disposal. However, Underhill warned him and the other councilmen that it could become another time-consuming duty.

"You're creating work for another employee," Underhill advised.

However, Brady, Mayor Scott Seelagy and the majority of the council directed Underhill to look into the issue.

Pollison, looking on from the audience, said he agreed.

"Personally, I'd like to do (on the school board) what the council has suggested," he said.

Wednesday, December 2, 2009

Lumberton Township settles OPMA suit

I recently settled my civil suit against the Lumberton Township (Burlington County) Committee that demanded prompter public access to the nonexempt portions of its executive session minutes.  My lawsuit and the settlement agreement are on-line here and following is an article on the settlement that appeared in today's Burlington County Times.

John Paff
Somerset, New Jersey
------------------------------
Lumberton agrees to quick release meeting minutes

By: Mark Zimmaro
Burlington County Times

The Township Committee has agreed to make the minutes from its executive sessions available to the public in a more prompt manner.

A civil lawsuit filed in State Superior Court by John Paff, Chair of the NJ Libertarian Party’s Open Government Advocacy Project, accused the Lumberton Township Committee of withholding minutes from their meetings that occur behind closed doors.

According to the lawsuit, Paff filed an Open Public Records Act of New Jersey request on June 29, asking for the township’s most recent available executive session minutes. On July 8, Paff received an e-mailed response from the township clerk with minutes from April and May of 2007.

“It was unacceptable,” said Paff, who resides in Somerset County. “These things need to be available to the public more frequently than that. It’s important for people to know what’s going on.”

Paff then sued the township and the two sides agreed to a settlement in which the committee arranged to make those minutes available more quickly to the public at their request.

“We never had any complaints before this,” said Lumberton Mayor Michael Mansdoerfer. “Basically we set up a policy on how to handle the minutes from now on while adhering to this complaint.”

The Township Committee meets twice a month and enters executive session at the majority of its meetings.

Currently there is no set timetable in state law for municipalities to make minutes available. However, the committee passed a resolution prior to the settlement stating that minutes from all its meetings would be available for public inspection as soon as they can be made properly available after the conclusion of the meeting. The resolution was agreed to during the settlement as guidelines for the release of future minutes.

“They agreed to make those minutes from one meeting available for request the day before the next meeting,” Paff said. “It’s good. There was a need for some clarity. I don’t think (the committee) was trying to hide anything and they were very cooperative once it was on their radar screen.”

Mansdoerfer agreed that settlement will provide a more transparent government in Lumberton.

“We want to be open with the public,” the mayor said. “It’s a good thing. It needed to be cleaned up.”

Paff has filed similar complaints in 17 municipalities in Atlantic County with 16 reaching similar settlements. The other case was won by Paff in Superior Court.

BCT staff writer Mark Zimmaro can be reached at 609-871-8059 or at mzimmaro@phillyBurbs.com

December 02, 2009 05:38 PM

Saturday, November 28, 2009

Legislative Committee to consider decreasing copy costs

On Monday, November 30, 2009, 2 p.m., the New Jersey Assembly State Government Committee will hold a hearing on Assembly Bill A1095 which seeks to lower the cost of paper copies to "up to $0.10 per letter size page or smaller, and up to $0.15 per legal size page or larger."  Currently, the Open Public Records Act appears to allow government agencies to charge up to $0.75 per page for the first ten pages; $0.50 per page for the eleventh through twentieth page and $0.25 per page for each page over twenty.

The hearing will be held in Committee Room 13 on the 4th Floor of the State House Annex, Trenton.  A1095, which has an identical bill in the Senate, S1646, is on-line here.

The primary sponsors of the Assembly bill (A1095) are Joe Cryan (D), Upendra Chivicula (D) and Linda Greenstein (D). Co-sponsors are Jack Connors (D), Joan Quigley (D), Joan Voss (D), Ruben Ramos Jr. (D), Samuel Thompson (R), Amy Handlin (R), Valerie Vainieri Huttle (D) and Gordon Johnson (D). The primary sponsors of the Senate bill (S1646) are Loretta Weinberg (D) and Tom Kean Jr. (R).

Tuesday, November 24, 2009

Custodians may tell citizens to "present" OPRA forms during business hours

Prior to the Appellate Division's ruling in Renna v. County of Union, record requestors were required to use an agency's specific OPRA request form.  In the pre-Renna days (and to a lesser extent now), I became concerned when a custodian's request form contained false information or otherwise misled requestors as to their rights under OPRA.

The form used by the High Bridge (Hunterdon County) Board of Education, and other school boards, contained a provision that I felt--and still feel--is misleading. Specifically, the High Bridge Board's form stated: “This form must be completed and presented to the Office of the Board Secretary between the hours of 8 a.m. and 4 p.m., Monday – Friday when offices are normally open.”

I believe that this language could lead some requestors to erroneously believe that their request forms would not be accepted unless they were personally DELIVERED to the Board Secretary during normal business hours.  Some requestors, especially those who work during normal business hours, might be dissuaded from exercising their rights under OPRA if they believed that they were not allowed to mail, fax or otherwise electronically submit their requests. 

I filed a complaint on September 26, 2008 asking the Government Records Council (GRC) to rule that the form's language violated OPRA.  On November 18, 2009, the GRC ruled against me.  It held that the word "present," which is defined in the dictionary as “to offer for observation, examination, or consideration,” is broad enough to include mailed, faxed and other transmittal methods.

A copy of the High Bridge Board's request form and the GRC's decision are on-line here.

Monday, November 16, 2009

Town enacts ordinance requiring public announcement of lawsuit settlements

On February 22, 2010, Andover Township (Sussex County) enacted an ordinance that requires the mayor, at the following Township Committee meeting, to "publicly announce the amount and terms of" any judgment or settlement arising out of a civil lawsuit against the Township or its employees. The proposed ordinance,as originally proposed is on-line here and the ordinance, as finally enacted, is on-line here.

This ordinance is beneficial because settlement agreements, which are often signed years after the lawsuit's initial filing, are not easy to track and often escape the public's and media's attention.  Currently, the only way for a citizen or reporter to find out if a given lawsuit settled is to periodically--perhaps monthly--check with the court or OPRA the settlement agreement. Since most people are not sufficiently motivated to follow up on a given lawsuit's status dozens of times, the settlements are often entered into without the public's knowledge.  And, because of the confidentiality agreements that are often inserted into settlement agreements, the public cannot rely upon the plaintiff in the underlying suit to inform the public of the settlement.

Knowing about settlement agreements helps identify patterns of questionable conduct.  If, for example, citizens become aware that multiple lawsuit settlements have arisen out of the acts or omissions of a particular municipal employee, those citizens can aptly inquire of their elected officials as to why that employee is still on the public payroll. 

I think that readers should provide a copy of Andover's enactment to their own municipal governing bodies and school boards and urge them to adopt something similar.

Saturday, November 14, 2009

Andover Township has drafted an e-mail use policy

On September 13, 2009 I posted concerning the City of Margate's (Atlantic County) policy of requiring its officers and employees who use e-mail for municipal business to use their "margate-nj.com" e-mail addresses and not their personal e-mail addresses (e.g. Yahoo.com, Gmail.com, Verizon.net, etc.).  That posting is on my blog here.

Today, I learned that the Township of Andover (Sussex County) has drafted--but not yet implemented--a more comprehensive policy designed to a) ensure that all official e-mails are preserved on the Township's server and b) prevent e-mail conversations from becoming "meetings" as defined by the Sen. Byron M. Baer Open Public Meetings Act. That draft policy is on-line here

While it's not perfect, Andover's draft policy is the best I've seen so far.  Readers may want to forward it to their own municipalities and school boards and suggest that they adopt something similar.

Monday, November 9, 2009

OPRAing "high speed" audiotapes

Many local governments record the audio of their meetings on tape as opposed to compact disc.  One complaint that frequently arises is that the tapes are recorded at "high speed" and are impossible to listen to on ordinary cassette players.  When requestors ask for versions of the tapes that can actually be listened to, they are typically informed that satisfying their request is technologically impossible or that it is possible only upon payment of a prohibitively expensive "special service charge."

I have learned of a lawsuit filed in Camden County Superior Court that addressed this issue and resulted in a settlement under which the Borough agreed to provide future requestors with tapes at "normal speed."  The case is Susan Scoblink-O'Neill v. Borough of Haddon Heights, Docket No. L-4390-08.  The civil complaint and settlement agreement are on-line here.

The Plaintiff was represented by Donald M. Doherty, Jr. of West Berlin.

GRC issues "Alert" and updates "Model Request Form" and "Custodian Handbook."

On November 9, 2009, the Government Records Council (GRC):

a) Issued an "OPRA Alert" advising records custodians that ordinances are not needed to establish "special service charges" and that such charges need to be determined on a case by case basis.  This "OPRA Alert" is available here.

b) Adopted a new "model form" for OPRA requests.  The new form, which is on-line here, among other changes: a) provides a space for requestors to make requests under the common law right of access in addition to OPRA and b) requires only those requestors who seek "records containing personal information" to certify to their criminal histories.

c) Updated its "Custodian Handbook."  The updated version is on-line here.

Appellate Division: OPRA requires disclosure of "Use of Force" reports

In a November 9, 2009 published opinion, the New Jersey Superior Court, Appellate Division upheld a lower court's ruling that police "use of force" reports, with the names of suspects who were not arrested or charged redacted, are public records subject to disclosure under the Open Public Records Act (OPRA).  The case is Martin O'Shea v. Township of West Milford, Docket No. A-1185-08, and the decision is available on-line here.

The reports at issue are those that the New Jersey Attorney General requires police officers to complete whenever force is used against a citizen.  Examples of force include unholstering a firearm, striking with a police baton or applying a chemical spray.  The Attorney General's rule and regulations regarding use of force are on-line here.

Examples of actual Use of Force Reports, from the Cranbury Township (Middlesex County) Police Department are on-line here.

Mr. O'Shea was represented by Richard Gutman of Montclair.  The American Civil Liberties Union and North Jersey Media Group were amici curiae and were represented by Bobby Conner, Edward L. Barocas, Jeanne LoCicero and Jennifer A. Borg.

Friday, November 6, 2009

GRC: Unrelated requests can be on same OPRA form

On November 6, 2009, the Government Records Council (GRC) released its decision in Anonymous v. Long Hill Board of Education (GRC Complaint No. 2008-192). The issue presented was whether the custodian could lawfully require the requestor to submit separate Open Public Records Act (OPRA) request forms for each item requested rather than including multiple requests on a single form.

The GRC held that although there may be some circumstances in which a custodian may require a requestor to submit separate OPRA request forms, such as if the request is extremely voluminous, the requestor in this case sought access to only four records: a meeting agenda; two sets of meeting minutes; and a pupil enrollment report.  Since this was not a voluminous request, the GRC held that the school board's custodian, John Esposito, violated OPRA by requiring the requestor to complete separate request forms for each item requested.  Indeed, the GRC held that the custodian's "practice provides a road block for a requestor to gain access to government records."

The GRC's decision is on-line here.

While the GRC declined to find that the custodian "knowingly and willfully" violated OPRA, it did find that Anonymous was a "prevailing party" under OPRA and ordered the Board of Education to pay Anonymous' lawyer--Walter Luers of Oxford--his attorney fees. 

Wednesday, November 4, 2009

Court rules on OPRA and OPMA case

On October 28, 2009, Camden County Superior Court Judge Louis R. Meloni issued a written opinion in the case of Cassel v. Township of Haddon et al, Docket No. CAM-L-1426-09.  The opinion is on-line here.

The ruling held:

a) It violates the Sen. Byron M. Baer Open Public Meetings Act for a public body to announce a public meeting at 7 p.m. but to actually start it at 6:20 p.m.  But, the violation does not require issuance of an injunction.

b) The municipality's ordinance allowing a $5 charge for a compact disc doesn't trump OPRA's limitation to "actual cost."  Thus, 88c--which was determined to be the "actual cost" is the proper amount for a CD.

c) The municipal lawyer's explanation that he didn't meet with a quorum of municipal council members during private, unadvertised meetings was credible despite the fact that the attorney's billing records showed that such meetings did occur.  Accordingly, the Meetings Act was not violated.

Wednesday, October 28, 2009

Court finds that home and e-mail addresses are public records under OPRA

In an October 27, 2009, 9-page written opinion, Ocean County Superior Court Assignment Judge Vincent J. Grasso ruled that the Township of Plumsted must provide an OPRA requestor with: a) a list of the e-mails of those who signed up to receive the Township's "Plumsted Township Alerts," and b) copies of Tort Claim Notices filed against the Township without redactions of the home addresses of those filed the tort claim notices. 

The case is captioned Geier v. Township of Plumsted et als, Docket No. OCN-L-3718-09.  I have put in on-line here.

On page 8 of his decision, Judge Grasso stated that his ruling was limited to the case's particular facts, and that it should not be taken as a broad ruling that home and e-mail addresses are always available under OPRA.  Judge Grasso said that "under a different scenario, it is conceivable that that one's home address or e-mail could be protected from public access."

Tuesday, October 27, 2009

Village threatened with lawsuit over slow release of minutes

I have threatened to sue the Ridgewood Village Council (Bergen) unless it speeds up its release of both executive and public meeting minutes.  As of now, the Village is improperly suppressing minutes from public meetings held as early as March 2009 and executive meetings held as early as November 2008. 

My letter to the Mayor and Council, that contains a draft of the lawsuit I intend to file, is on-line here.   The Village Council is expected to discuss my threat during executive session at its Wednesday, October 28, 2009 meeting.

The minutes that I have gathered so far, plus a table that shows which ones I'm still seeking access to, are on-line here.

An October 23, 2009 article that appeared in the Ridgewood News is on-line here.

Update: November 14, 2009

Ridgewood Village somewhat improves its minutes release policy

On October 27th, posted my threatened lawsuit against the Ridgewood Village Council (Bergen) for taking too long to release both its executive and public meeting minutes.  Since then, the Village lawyer has informed me of the Village's new policy regarding minutes publication and I have replied.  My original threat of suit, supplemented by the lawyer's response and my reply are on-line here.

Basically, a lawsuit may still be needed because a) the Village's new policy is based on a flawed premise--that minutes have to be "approved" before being publicly released and b) the policy regarding release of redacted closed session minutes--if I understand it correctly--permits a delay of six months or more between a closed meeting and the release of the redacted minutes of that meeting. I've invited the lawyer to call me next week to explain, clarify and revise the new policy.

Thursday, October 15, 2009

The Custodian needs legal advice, but how long am I supposed to wait?

Sometimes I get questions that I think might be of general interest. Here's one such question and my answer to it.

QUESTION:

On September 30, 2009, I made an Open Public Records Act (OPRA) request for closed session minutes. The borough clerk responded same day and informed me that my request was forwarded to the borough attorney.  The Clerk said that she had no idea how long it would take for the attorney to get to my request, but that she would let me know as soon as she finds out.  Two weeks have now passed.  When I asked the clerk today (October 14, 2009) about the status of my request, she told me that her hands are tied because the attorney still hadn't informed her of a date by which my request would be handled.  What do I do?

ANSWER:

If I were you, I'd put something like the following in a letter and send it to the borough clerk.
As you know, I submitted a records request on Wednesday, September 30, 2009 and that you immediately referred my request to the municipal attorney.  As you are also aware, more than seven business days have elapsed and I have not yet received either a formal response (i.e. a grant or denial of access) to the requested records or a definite date by which I will such a response.

While it is reasonable for you to seek legal advice on how to appropriately respond to my request, your decision to seek legal advice does not, by itself, constitute a lawful reason for delaying your response beyond the seven business day period prescribed by N.J.S.A. 47:1A-5(i).  See Paff v. Bergen County, GRC Complaint No. 2005-115.

And, while I don't object to the Borough having a reasonable amount of time within which to properly respond to my request, we have not yet established a specific date by which the Borough must respond to my request.  I insist upon a specific due date by which I can expect the Borough's response.

Accordingly, I offer an extension until the close of business on Wednesday, October 21, 2009.  If the Borough believes that formally responding within this time frame "would substantially disrupt" the Borough's operations (see N.J.S.A. 47:1A-5(g)), please contact me before October 21st so that we can attempt to reach a reasonable solution that accommodates both of our interests.  Otherwise, I expect to receive a formal response to my request prior to the the above date and hour.
 
If you don't agree to a further extent ion, and the Clerk doesn't either grant or deny your request by October 21st, then the Clerk has violated OPRA and you can proceed in either the Government Records Council or the Superior Court.

GRC: Confidentiality clause is not an OPRA exception

The following article in Wednesday's Daily Record concerns the Government Records Council's September 30, 2009 decision in Joe Ungaro v. Town of Dover (Morris), GRC Complaint No. 2008-115.  In that decision, the GRC ruled that a confidentiality clause in an administrator's severance agreement does not constitute a legal basis for denying public access to the agreement.  (Unfortunately, I have not been able to read the GRC decision because it hasn't yet put any of the cases decided on September 30, 2009 on its web site.)

The GRC's decision is consistent with the Appellate Division's March 17, 2009 decision in Asbury Park Press and John Paff v. Monmouth County.  In that case, the court held that the Open Public Records Act (OPRA) did not permit Monmouth County to deny access to an agreement that the county entered into to settle a sexual harassment lawsuit.

Despite the positive rulings, the issue of whether or not a confidentiality agreement forecloses public access is still an open question.  At Monmouth County's request, the New Jersey Supreme Court has agreed to review the Appellate Division's decision, and oral argument will be held on November 2nd or 3rd.

John Paff
Somerset, New Jersey

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

Dover paid almost $250K to buy out official
Daily Record obtains records after 15-month effort


By LAURA BRUNO • STAFF WRITER • October 14, 2009

DOVER -- Former town administrator Bibi Stewart Garvin received a buyout package worth nearly $250,000 to resign her position before her contract expired, according to a settlement agreement obtained by the Daily Record after a 15-month effort through the Open Public Records Act.

The agreement, approved by the town board of aldermen in June 2008, provided for Dover to pay Garvin her full 2008 salary, a lump sum payment for 2009, and to cover the cost of her health benefits through 2009.

She received her full salary of $139,259 for 2008, despite resigning effective June 11. Based on her annual salary, that means she was paid $77,663 for the six-and-a-half months she did not work in 2008. She also received $25,460 for accumulated sick leave and vacation time she accrued during her 2 1/2 year tenure with the town. In addition, Garvin was paid $129,719 for 2009, although she was no longer an employee, according to the agreement.

The total monetary payout was $232,843, according to the Daily Record's calculation.

Besides the salary payout, the town also agreed to pay the monthly cost of her COBRA health benefits for parent and child coverage through 2009. The coverage has cost the town a total of $14,912 to date: $5,592 for 2008 and $9,320 so far in 2009, said town administrator William Close.

Garvin's settlement agreement has cost the town a total of $247,755 so far.

The town had declined the Daily Record's request for a copy of the buyout in June 2008, citing a confidentiality clause in the agreement. The Daily Record filed a complaint with the state Government Records Council, or GRC, on June 27, 2008, maintaining that the agreement is a public record because it involved a severance package being paid with public funds.

The town administration argued to the GRC that the agreement was a personnel record exempt from public access.

The GRC, which hears disputes regarding OPRA requests, determined in a ruling dated Sept. 30, 2009, that the confidentiality clause "does not override the public's right to access under OPRA.''

But because OPRA does not specifically exempt access to records based on confidentiality clauses, Dover had no legal authority to deny access to the settlement, according to the ruling signed by the council's executive director, Catherine Starghill.

"The GRC ruling is a victory for all citizens,'' said Daily Record Executive Editor James Flachsenhaar. "The council agreed that simply stamping a document 'confidential' doesn't make it confidential -- especially when it contains a severance package paid by taxpayer dollars.''

Stewart Garvin did not return a call seeking comment.

Mayor James Dodd said Tuesday that he still could not comment on the agreement based on the advice of town attorney David Pennella. Even though the document was released, Dodd said, he is still bound by the confidentiality clause.

Dodd said "no comment'' when asked to explain why he and a majority of the board sought Stewart Garvin's removal.

In May 2008, the board decided not to reappoint Stewart Garvin to another term as administrator. Dodd has said the agreement would "prevent a potential litigation situation'' by guaranteeing that neither the town nor Stewart Garvin would sue the other party.

Stewart Garvin was hired Jan. 1, 2006, and secured a $25,000 raise in April 2006 to keep her from accepting an offer to become Morristown's business administrator. The town renegotiated her contract at that time, extending her term of service to two, three-year consecutive terms, through Dec. 31, 2012.

Only two alderman voted against approving the settlement agreement -- Patrick Donofrio and Patrick Fahy. Donofrio said Tuesday that he :applauded'' the Daily Record for pursuing public access to the settlement and said he was "ashamed'' the newspaper had to go through the OPRA process.

"It's a raw issue still to this day,'' Donofrio said of the settlement.

At the time of the vote on the agreement, Donofrio said he felt Stewart Garvin was unfairly forced out of her job.

Donofrio declined to comment further Tuesday, saying he had received several e-mails from the town administration reminding aldermen that they remain honor-bound by the confidentiality clause.

Laura Bruno: 973-428-6626; lbruno@gannett.com

Thursday, October 1, 2009

Four Hasbrouck Heights officials fined for failing to file financial disclosure forms

Following is a news article reporting on $100 fines being imposed upon four Hasbrouck Heights (Bergen County) officials who failed to file their Financial Disclosure Statements. 

The fines were levied by Hasbrouck Height's own municipal ethics board, and not the Local Finance Board (LFB).  The LFB, to my knowledge, has yet to fine anyone for failure to file. 

The violation notice and complaint are on-line here.

John Paff
Somerset, New Jersey
--------------------------
Four fined for failing to file financial disclosure forms

Thursday, October 1, 2009
BY JUSTIN ZAREMBA
Community News (Lodi Edition)
STAFF WRITER

Following a complaint by a Sunshine Law activist, Hasbrouck Heights issued fines to four individuals for not filing financial disclosure forms on time.

John Paff of Somerset, an advocate for government transparency, issued a complaint to the municipality on June 2 claiming that 26 borough officials failed to file annual financial disclosure statements by April 30, 2008. The list of late-filers included members of the zoning board, the rent leveling board, the general assessment board, the ethics board and the fire department.

As part of municipal ordinance and state law, municipal employees are required to report their income sources every year in order to prevent possible conflicts of interest.

An investigation by the Hasbrouck Heights Ethics Board on July 13 concluded that 24 individuals failed to file their financial disclosure forms by the April 30 deadline. One individual on the list of non-filers retired and another was "erroneously included," according to a resolution by the ethics board.

While the board recognized that two dozen officials did not file their financial disclosure forms for more that 13 months, only four individuals were issued fines of $100.

Ethics Board Trustee Andrew Link said the board issued fines to Appraiser Ernest DelGeurcio, Plumbing Inspector Richard Vannatta, Public Defender Thomas Mason and Public Defender Alternate Mark Musella because they receive "compensation" from the borough.

"The majority of the people are volunteers which is why we forgave them the $100," Link said. "We decided [to fine the individuals] based on the fact that they received a certain amount of compensation from the borough."

Link stated the board tried to resolve the situation in August but was unable to reach quorum at the time because Trustee Garrett Pepe was one of the individuals who had failed to file on time.

Paff, who has filed similar requests in other New Jersey towns, explained that he did not expect Hasbrouck Heights' response.

"I'm not accustomed to having government officials act in compliance with the law," Paff joked.

Paff stated the borough's action will send a "strong message" to municipal employees.

"I think assessing fines is the appropriate action for Hasbrouck Heights," he said. "I think it sends a strong message and I predict that beginning about now people will file their financial disclosure forms on time."

Mason stated the late filing of financial disclosure forms by he and his law partner, Musella, was an "oversight" which they corrected earlier in the year. Mason stated he and Musella paid their fines the day after receiving notice from the borough.

Borough Clerk Rose Sees said all borough officials were currently in compliance with the financial disclosure ordinance for 2008 and 2009, except for one individual for 2009 forms. Sees declined to identify the late-filer, stating she expected her financial disclosure forms shortly.

DelGuercio, Pepe and Vannatta were unavailable for comment.

E-mail: zaremba@northjersey.com

Monday, September 14, 2009

Charging for faxed and e-mailed records

Whenever I make an OPRA request, I ask that the responsive records be sent to me by fax or e-mail instead of by regular mail.  I prefer to submit my OPRA requests and receive my records by fax or e-mail because it is much faster (i.e. the Postal Service is not involved in the process.)  Records custodians are required to accommodate a requestor's fax or e-mail preferences.  See Paff v. Sussex Borough, GRC Complaint No. 2008-38.

Most custodians don't even attempt to charge for faxed or e-mailed records. However, some custodians will attempt to charge me for the records in accordance with OPRA's statutory maximums (i.e. up to 75c per page for the first 10 pages, 50c per page for pages 11 through 20 and 25c per page for all pages in excess of 20) even though the pages are being faxed or e-mailed to me.

I know of no case that definitively rules whether or not custodians are allowed to charge the same rate for faxed or e-mailed records as they are for paper records.  But, Government Records Council Executive Director Catherine Starghill has publicly stated that absent unusual circumstances, charges for faxed and e-mailed records are not permitted.

Following is the text of a letter I sent to the Sayreville Borough (Middlesex County) custodian when she attempted to charge me for faxed or e-mailed records. I've also included her response.  I've recently sent similar letters to two other custodians and so far all three have destroyed my check and gave me the records for no cost.

Readers who are facing charges for e-mailed and faxed records might want to try the same or similar tactic.

John Paff
Somerset, New Jersey

Letter to Sayreville 

September 8, 2009

Theresa A. Farbaniec, Clerk
Borough of Sayreville
167 Main St
Sayreville, NJ  08872

Dear Ms. Farbaniec:

In follow up to an e-mail I received today from Jessica from your office, I enclose my $2.25 check for the three pages of records responsive to my OPRA request.   In her e-mail, Jessica stated that your office would honor my request to fax or e-mail the responsive records to me, but only after receipt of my check.

I question the legality of your office charging me for faxed or e-mailed records.  This issue is fresh in my mind because on August 26, 2009, I attended an OPRA seminar conducted by Government Records Council (GRC) Executive Director Catherine Starghill.  During her presentation, Ms. Starghill made it clear that record custodians generally may not charge a requestor for faxed or e-mailed transmissions.

I want the requested records promptly, so I am enclosing my $2.25 check so as to avoid a delay in getting them.  However, I would appreciate it if, prior to depositing my check, you would call the GRC’s information hotline at 866-850-0511 and inquire as to whether Sayreville should be charging for faxing or e-mailing records.  If the answer is in the negative, I ask that you please destroy my check and let me know that you have done so.

Thank you for your attention to this matter.

Sincerely,

John Paff
Sayreville's response

September 14, 2009

We received your letter, dated September 8, 2009, challenging the fee for responding to your OPRA request. We disagree with your position that no copy charges apply to faxed documents because almost all documents have to be photocopied, whether we fax or mail them. Regardless, due to the minimal charge for these documents, we will waive the $2.25 fee in this one instance. We will destroy your current check, but we are not establishing a policy of waiver or agreeing to waive any fees for future requests.

Very truly yours
Theresa A. Farbaniec, RMC
Sayreville Borough Municipal Clerk

Sunday, September 13, 2009

Margate to Require Employees and Officers to use City e-mail accounts

The City of Margate (Atlantic County) will soon require its officers and employees who use e-mail for municipal business to use their "margate-nj.com" e-mail addresses and not their personal e-mail addresses (e.g. Yahoo.com, Gmail.com, Verizon.net, etc.)

The City's policy change was announced in a September 3, 2009 letter sent in response to an August 31, 2009 letter I sent the City in my capacity as Chairman of the New Jersey Libertarian Party's Open Government Advocacy Project.  The correspondence is on-line here.

In my letter I had noted that the City's response to my recent OPRA request showed that a) all of the City's elected officials were sending and receiving e-mails concerning City business using their personal e-mail accounts, and b) the City's existing "E-mail Voice Mail and Internet Usage Policy" did not address the City's responsibility to maintain and archive official e-mails in case a records requestor later sought access to those e-mails.

By requiring City officials to use only their municipal e-mail addresses for official business, the City's e-mail server will preserve those e-mails for future disclosure.  Under the City's previous policy, there was often no straightforward way for a records requestor to gain access to some official e-mails.  For example, if a member of the City Council lost his or her council seat as of January 1, 2009, and a record requestor later asked for official e-mails that the council member sent in November 2008, there would be no easy way for the City records custodian to honor that request if the council member used a Yahoo.com or Gmail.com account to send the requested e-mails.

Friday, September 11, 2009

Media reports on officials' failure to disclose finances

Lately, I've been filing complaints against municipal officials who fail to file the Financial Disclosure Statements required by the Local Government Ethics Law (LGEL).

The newspapers have been picking up on my complaints, and two similar articles--one from yesterday's the Express Times regarding Hackettstown and another from Wednesday's Star Ledger regarding South Amboy--are set forth below.

These articles not only give the non-filing officials some unfavorable publicity, but they also point out that at least part of the reason there is so much noncompliance is because the Local Finance Board (LFB) does not aggressively enforce the LGEL. As I've stated in previous postings, the LFB--to my knowledge--has never fined an official for failure to file. Rather, it gives the non-filing official repeated chances to bring his or her filing up to date and then dismisses my complaint when the filing is eventually received. For an example of such a dismissal, see my blog entry here.

For the past month or so, I've been filing this type of complaint against municipal officials at a rate of about three per week. One example of such a complaint--regarding Gloucester City in Camden County--and my letter to the Gloucester City Mayor and Council is on-line here.

John Paff
Somerset, New Jersey
------------------------
The Express Times
September 10, 2009

28 Hackettstown officials violated ethics law by not filing finance form, according to open records complaint

HACKETTSTOWN | More than two dozen Hackettstown officials -- including two town councilmen and Assemblyman John DiMaio -- neglected to turn in forms that document the sources of their income in 2008 in violation of state ethics laws, according to a complaint filed with the state last week.

The financial disclosure statements are due at the end of every April and are meant to show where various elected and appointed officials may have conflicts of interest by documenting their income, their spouses' income, and their business interests.

Twenty-eight town officials, many of them volunteers on boards or commissions, are more than 16 months overdue, according to John Paff, a Somerset resident who chairs the New Jersey Libertarian Party's Open Government Advocacy Project.

Paff said he filed his complaint against Hackettstown last week and said he has 21 more pending from around the state.

A spokeswoman for the Department of Community Affairs said the finance board "cannot confirm or deny if a complaint has been filed."

Letters explaining the nature of the complaint along with blank disclosure forms were mailed out Tuesday to those listed, said town Clerk and Administrator William Kuster.

DiMaio, R-Warren/Hunterdon -- who was a county freeholder and Hackettstown Municipal Utilities Authority member in 2008 -- couldn't provide an explanation for why he neglected to submit his disclosure form last year.

"It probably got on my desk and between running my business and being a freeholder at the time, I just forgot to fill it out," DiMaio said.

Councilman John Stout also said his failure to file the form was the result of a "simple oversight." Both said they plan to fill out the replacement forms immediately.

Councilman Scott Sheldon, the other councilman on the list, could not be reached for comment.

Paff said Hackettstown was not the worst that he has seen for this kind of violation; at least one town had more than 50 disclosure forms missing, he said.

Part of the problem, Paff said, is that the state-level Local Finance Board -- part of the Department of Community Affairs and the entity with which Paff filed his complaint -- doesn't do enough to make sure the forms are submitted.

Failure to file a disclosure statement could result in a $100 to $500 fine for each official, though he does not expect that to happen.

"I am hopeful the mayor and council will bring these officials in line with the law even if nobody in Trenton is willing to enforce it," Paff wrote in a letter to the town.

Mayor Michael Lavery said in light of the complaint he would like to see the town do more to make sure the documents get filed.

According to current policy, the town sends out forms and instructions to the officials for whom it's required. The forms are due back April 30 each year and the town notifies Trenton who did and did not file.

Lavery, whose financial disclosure statement was not in arrears, said he would like to see the town follow up with officials before the deadline.

"The law is the law. (Disclosure forms) are required to be filed and the people who serve the town should file them," Lavery said.

Reporter Stephen J. Novak can be reached at 610-258-7171, ext. 3542, or by e-mail at snovak@express-times.com.
-----------

Star Ledger

15 S. Amboy officials miss disclosure deadline

Wednesday, September 09, 2009
Aliyah Shahid

Fifteen South Amboy officials, including one police captain and several members of the planning, zoning and redevelopment boards, failed to file their annual financial disclosure statements on time this year, according to an advocate for open government.

Of the 15, eight of the same officials did not file financial disclosure agreements on time in 2008.

In response, the New Jersey Libertarian Party filed a complaint with the Local Finance Board last week.

John Paff, chairman of the Open Government Advocacy Project for the Libertarian Party, also sent the mayor and council a letter urging the administration to make the officials comply.

Consequently, the city sent a letter to those officials who did not file, said South Amboy Clerk Kathy Vigilante. She said since the letter went out, all but five officials have sent their financial disclosure statements.

"I intend to receive them all," said Vigilante, who said many of the officials, who serve on volunteer boards, forget to file. South Amboy Mayor Jack O'Leary said the city would put in a checks-and-balances system to make sure all officials file next year.

"It's unfortunate it happened this way," said O'Leary. "It's something the city will take very seriously going forward."

Under New Jersey state law, all local government officers must file the annual statements on or before April 30 of each year. They must provide any sources of income greater than $2,000, any gifts received, and if an individual or members of the immediate family hold more than 10 percent of profits, assets, and stocks of a business. Twelve local government officers in South Amboy did not meet last year's deadline. Paff said he wanted the officials to file so the public could spot conflicts-of-interest that may arise during an official's term.

For example, he said a non-filing Zoning Board member's spouse could work for a company owned by an applicant seeking the board's approval. Had the official filled out his financial disclosure statement, the public would realize it was a possible conflict for that official to vote on or participate in this application.

"The official is depriving the public of this important knowledge and thus undermining the Legislature's intent," said Paff.

On the Planning Board, Chairman Michael Wilday, in addition to members Ryan Tooker, Richard Cronin, Robert Senape, and Lawrence Stratton did not file disclosure statements on time.

On the Zoning Board, members Michael Gross, Richard Moran, and William Tierney did not file on time, in addition to the board's attorney Francis Womack.

On the South Amboy Redevelopment Board, commissioners Kevin Meszaros and Jeffrey Moskal did not file on time, in addition to Chairperson Melvin Rosado, and Craig Coughlin, who serves as a legal counsel for the board.

"It was an oversite that shouldn't have been made," said Coughlin, who also did not file in 2008. He said his forms from 2008 and 2009 have since been filed. "It was a mistake," he added.

Police Capt. Darren Lavigne and Rosemary Zera, who sits on the Library's Board of Trustees, did not file on time either.

Fines from $100 to $500 could be imposed against non-filers by the Local Finance Board, though Paff said the board rarely fines officials for tardy financial disclosure forms.

A spokesperson for the Local Finance Board said yesterday that no one was available to comment. Paff said he randomly selected municipalities, and several had officials, including in Milltown and Hasbrouck Heights, who did not file financial disclosure forms on time.

"It would be a heck of a lot more efficient if the state fined the late filers," said Paff. "I want them to meaningfully enforce the law."

Aliyah Shahid is a reporter for the New Jersey Local News Service. She may be reached at (908) 243-6233 or ashahid@njlns.com.

Sunday, August 30, 2009

Montclair Council agrees to open meeting

The following article appeared in the Montclair Times. It reports on a letter that I had sent to the Montclair Township Mayor and Council regarding an Open Public Meetings Act violation. My letter is on-line here.

John Paff
Somerset, New Jersey

Council chided over closed-door meeting

(by Terrence T. McDonald - August 27, 2009)

After receiving a letter from an open government advocate who questioned the Township Council’s decision to hold a meeting behind closed doors on Aug. 4, the Township Council last week invited the public to meetings regarding the search for a new municipal manager.

The closed-door meeting was attended by at least one member of the public: a representative of the New Jersey Municipal Managers Association, who advised the council on how to begin their search for Township Manager Joseph M. Hartnett’s replacement. Hartnett will retire at the end of the year.

Though some council members insisted "personnel issues" discussed at the Aug. 4 closed-door meeting allowed them to bar the public from attending, John Paff, chairman of the New Jersey Libertarian Party’s Open Government Advocacy Project, said the council is misinterpreting the law.

In an Aug. 18 letter addressed to the mayor and council, Paff states the council’s reliance on personnel reasons to close the meeting to the public is "wholly misplaced," adding that the meeting "ought to have been held in public."

After receiving the Aug. 18 letter, the council opened the doors to the public on a meeting that night with two employment recruiters seeking to find Hartnett’s successor.

The following night, the council held another meeting with a third recruiter and kept the doors open for that meeting as well.

Mayor Jerry Fried said he has a hard time understanding the issue with the Aug. 4 closed-door meeting. Public bodies need to discuss some issues – such as matters involving contracts and personnel – without the public’s involvement.

"You have to be able to talk about all those things in private," Fried said.

The Open Public Meetings Act (OPMA), signed into law in 1975, requires governmental bodies to invite the public to all meetings, with nine exemptions. One exemption allows elected officials to bar the public from discussions of "any specific prospective public officer or employee or current public officer or employee."

If the council discusses a position, not a specific employee, then the public should be invited, Paff told The Times.

"The reason we have public meetings is so people can … judge if they’re making reasonable decisions, if they’re making decisions in favor of the many and not of the few," Paff said. "We want to see how they make those decisions."

Before the Aug. 18 meeting started, Fried consulted with Assistant Township Attorney Joseph D’Angelo on whether the council should exclude the public from that night’s meeting. D’Angelo told him that the council could shut the doors and say they were discussing "anticipated contractual negotiations."

"If you don’t want to [do that], you can always have it in open," D’Angelo told Fried.

Paff told The Times that D’Angelo’s comment "illustrates how loosely public officials define the Open Public Meetings Act." OPMA tries to maximize the public’s ability to judge their public officials, while public officials often attempt to minimize the public’s involvement, according to Paff.

"That’s not the way this law was supposed to work. All the meetings are supposed to be public, every meeting … the public has a paramount right to know," he said.

Contact Terrence T. McDonald at mcdonald@montclairtimes.com.

Thursday, August 20, 2009

Important OPMA decision handed down today

On August 20, 2009, the Appellate Division handed down an important, published decision clarifying the Senator Byron M. Baer Open Public Meetings Act (OPMA). The decision, from Burnett v. Gloucester Township, Docket No. A-6131-07T2, is on-line here.

The thirty-six page decision covers a variety of topics, some of which will be discussed here.

First, the court found that OPMA plaintiffs, to be eligible for injunctive relief under N.J.S.A. 10:4-16, are not limited to OPMA violations occurring only within forty-five days of the filing of plaintiff's complaint.

Second, the court found that the county violated OPMA by taking formal action on lawsuit settlements "in the closed session and never ratified or even discussed [them] in a public session." According to the decision, "the Board voted to approve various settlements and disbursements of county funds . . . without benefit of public discussion or resolution. [Such] conduct flies in the face of the requirement for open government in pursuit of the "cherished ideal" of "government of the people."

Third, the court found that the Freeholder Board misused OPMA's personnel exception by "adopt[ing] policies affecting county employees generally or the creation of new county positions" in closed session. The court held that such was improper because it "did not relate to discussions regarding a specific employee."

I urge everyone to take the time to read this important decision.

Wednesday, August 19, 2009

Issue: "The Mayor and Council won't answer my questions."

From time to time I receive questions that I think may be of general interest. Here's one such question my answer to it.

Question: When I ask a question during a meeting's public comment session, either on a general issue or on a specific ordinance that is about to be passed, the mayor and council do not respond. Rather, the mayor just ignores the question and invites the next speaker to podium. Is this legal?

Answer: There are two statutes that pertain to the public's right to address a municipal governing body.

First, N.J.S.A. 10:4-12(a), which is part of the Open Public Meetings Act, requires municipal governing bodies and school boards "to set aside a portion of every meeting . . . the length of the portion to be determined by the [public body, for public comment on any governmental issue that a member of the public feels may be of concern to the residents of the municipality or school district.."

Unfortunately, this section does not require the mayor and council to respond to a citizen's question. In many towns, when a citizen asks a question, he or she is told that the mayor and council are under no duty to answer questions. Such a response, although repugnant, is consistent with N.J.S.A. 10:4-12(a).

Second, N.J.S.A. 40:49-2(b) requires a separate public comment period to be held whenever an ordinance is being considered for final passage (i.e. given a "second reading."). This statute says that prior to final vote on a proposed ordinance "all persons interested shall be given an opportunity to be heard concerning the ordinance. The opportunity to be heard shall include the right to ask pertinent questions concerning the ordinance by any resident of the municipality or any other person affected by the ordinance."

While the Open Public Meetings Act gives members of the public the right to "comment" on an issue, N.J.S.A. 40:49-2(b) confers a specific right "to ask pertinent questions.". This seems to imply that the mayor and council are under some duty to answer those questions.

Courts are supposed to construe statutes to give meaning and effect to the legislature's intent. While there is no case law on this subject, I believe that a court, if asked, would construe N.J.S.A. 40:49-2(b) to impose a duty on the mayor and council to answer citizens' questions. Otherwise, the legislature's inclusion of the "pertinent questions" language in the statute would be meaningless. In other words, is it reasonable that the legislature would have given the public the right to ask "pertinent questions" but allow the officials to whom the questions are directed to ignore those questions?

Saturday, August 15, 2009

Union County Freeholders to apologize for Trampling on First Amendment

At its August 20, 2009 meeting, the Union County Freeholders will read an apology that it recently negotiated with the New Jersey American Civil Liberties Union. The County's letter to the ACLU in which it agreed to apologize is on-line here.

The ACLU's involvement came in response to the Freeholder Board's informal "rule" that prohibits citizens from inquiring about nepotism during the public portion of the the Board's meetings. The Board has, in the past, prevented citizens from publicly asking questions concerning how many of the Freeholders' family members had County positions and whether those family members received preferential treatment during the hiring process.

Readers who would like to witness the issue should view the video of a Freeholder's June 25, 2009 meeting by clicking here and select "Tina Renna of Cranford Commented (1:04:49)" and "Bruce Paterson of Garwood commented (1:21:43). Readers will see the Board director tell Mr. Paterson that he "will not tolerate" questions and comments about Freeholders family members (1:23:15) and witness Ms. Renna being escorted out the meeting room by a uniformed officer.(1:10:25).

For more information on Union County nepotism, click here.

Ms. Renna requests members of the public who are concerned about this issue to attend the August 20th meeting, as a show of force. It begins at 7 p.m. at the Union County Administration Building, 10 Elizabethtown Plaza, Elizabeth. Directions are here.

Meeting attendees can park in the employee lot across from the Administration Building.

John Paff
Somerset, New Jersey

Friday, August 7, 2009

Hoboken sued for Meetings Act violation

I recently sued the Hoboken City Council on a single issue: Did the City Council violate the Meetings Act's "promptly available" mandate by refusing to disclose even redacted minutes of an executive session held approximately eight months earlier?

Instead of proceeding by summons and complaint, as I normally do, I asked the court to issue an order to show cause and to temporarily restrain the Hoboken Council, while the case is pending, from refusing to make the nonexempt portions of its executive session meeting minutes "promptly available." I requested the court, for the purposes of the temporary restraint, to define "promptly available" as "within 30 days after each meeting or prior to the next scheduled meeting, whichever comes first." This is consistent with the rulings of Judges Lawson and Perskie in my cases against Keyport Borough (Monmouth County) and Port Republic City (Atlantic County), respectively.

Hudson County Superior Court Assignment Judge Maurice J. Gallipoli denied my request for temporary restraints, but issued an order to show cause that will be heard on Friday, August 28, 2009 in Jersey City.

The order to show cause, verified complaint, brief and other case documents are on-line here.

Saturday, August 1, 2009

Atlantic County OPMA Suit

On October 3, 2008, I filed a civil complaint against seventeen (17) Atlantic County municipalities to challenge their noncompliance with the Sen. Byron M. Baer Open Public Meetings Act. The suit concluded yesterday.

Of the seventeen defendant municipalities, I entered into Consent Judgments with sixteen of them and won a summary judgment against one.

Copies of all the relevant case documents and Consent Judgments are on-line here.

Wednesday, July 29, 2009

GRC to hold annual OPRA Seminar on Wednesday, August 26th.

The Government Records Council (GRC) will hold its annual seminar on the Open Public Records Act (OPRA) on Wednesday, August 26, 2009, 9:30 a.m. to 12:30 p.m. at the New Jersey State Museum Auditorium, 205 West State St., Trenton. The seminar is open to all, free of charge and no pre-registration is required. There is limited free parking in the State House garage.

A two-hour presentation by GRC Executive Director Catherine Starghill, beginning at 9:30 a.m., will followed by a one-hour question and answer period starting at 11:30.

According to the GRC's announcement: "This seminar will assist the public, local government employees, governing bodies, departments, boards and commissions to better understand the mandatory requirements of the Open Public Records Act, as well as recent rulings by the Government Records Council and NJ Superior Court that affect the disclosure of government records."

Tuesday, July 28, 2009

Monmouth Settlement Agreement case to be reviewed by Supreme Court

Update:  On January 25, 2010, the New Jersey Supreme Court unanimously affirmed the Appellate Division's holding that a "confidential" settlement agreement between a civil litigant and a public agency or employee is a a public record.  Click here.
 In a July 20, 2009 Order, the New Jersey Supreme Court agreed to review the Appellate Division's March 17, 2009 published decision in Asbury Park Press and John Paff v. Monmouth County. This is the ruling that held that the Asbury Park Press and I were entitled, under OPRA, to a copy of a settlement agreement in a sexual harassment case filed by a county employee against a county official.

The July 20, 2009 Order, the March 17, 2009 Appellate Opinion and other documents are on-line here..

North Plainfield group submits Faulkner "Sunshine" petition

The North Plainfield Citizens for Community Rights (NPCCR) has submitted a petition to the North Plainfield Borough Council that will force a "Sunshine" referendum to the ballot. The referendum, if approved by the voters, will require the Borough government to be much more open and transparent. A copy of the petition is on-line here.

The NPCCR was able to do this because North Plainfield has a form of government chartered under the Optional Municipal Charter Law of 1950 (OMCL), also known as the Faulkner Act. All such forms of government allow citizens to bypass their elected officials and put binding laws on the ballot for voter approval.

More information on the OMCL and an unverified list of municipalities that have Faulkner charters are, respectively, at the following links, here and here:

Readers living in a Faulkner municipality should consider petitioning for a referendum similar to North Plainfield's. Those living in a non-Faulkner municipality should consider petitioning for adoption of a Faulkner charter (see N.J.S.A. 40:69A-1 et seq.)

Wednesday, July 22, 2009

New Jersey Courts adopt revised public record rule

The New Jersey Supreme Court today announced a revision, which will take effect on September 1, 2009, to the court rule regarding public access to court records. This revision was adopted in response to a November 2007 report by a Special Committee on Public Access to Court Records and comments from the public to that report. The Court's press release is available on-line here.

I am pleased that the Court rejected one recommendation, called "Recommendation #26" which was presented to the Court by its Special Committee. That recommendation stated:

Recommendation #26. Complaints alleging indictable and disorderly persons offenses should be treated as confidential unless and until a probable cause determination is entered pursuant to Rule 3:3-1(a)(1) and (b)(1) or Rule 7:2- 2(a)(1).

On January 11, 2008, I submitted a written objection urging rejection of the recommendation because it would have prevented the public from being able to hold judges accountable for making erroneous, or possibly corrupt, probable cause determinations. My letter to the Committee is on-line here.

In rejecting Recommendation 26, the Supreme Court found:
Complaints alleging indictable and disorderly persons offenses shall continue to be deemed public records available for inspection at the time they are filed, whether or not a probable cause finding has been entered. There is a need for transparency and public scrutiny of the entire judicial process, beginning at the time the complaint is filed. The public will have greater confidence in the fairness of a probable cause determination made by a judicial officer when information on such findings is available for review.

Wednesday, July 15, 2009

Atlantic County OPMA Transcript available on-line

The transcript of the June 26, 2009 oral argument of my OPMA case against the City of Port Republic (Atlantic County) is on-line here.

the Internet. Despite City Attorney Salvatore Perillo's attempts to complicate the issue presented, Judge Stephen P. Perskie ruled on the sole, narrow before the Court: Whether the City Council is required by law to publicly disclose some version of the minutes of its executive sessions promptly after the meeting. Perskie took care to NOT opine on other issues, such the level of detail that closed minutes need to contain.

He ultimately ordered that the City Council "shall publicly disclose draft versions of the City Council’s nonpublic meeting minutes, redacted as lawfully allowed, within thirty (30) days after the nonpublic meeting is held or prior to the City Council’s next scheduled meeting, whichever occurs first." The signed order is on-line here.

The transcript is entertaining. Perskie is obviously frustrated when Perillo seems to be evading his direct questions. For example, at page 19, Perskie asks Perillo: "Which one of us is Abbott and which one is Costello?" Perillo's reply: "Hopefully neither."

Friday, July 10, 2009

Asbury Park promises to better comply with Sunshine Law

In a July 10, 2009 letter, Asbury Park City Attorney Frederick C. Raffetto, writing on behalf of the Mayor and City Council, agreed to modify the Council's executive session procedure to better comply with the Sen. Byron M. Baer Open Public Meetings Act.

Raffetto's letter was in response to a July 3, 2009 letter from the New Jersey Libertarian Party's Open Government Advocacy Project (NJLP) that expressed three concerns regarding the City's closed meeting procedure. Specifically, the NJLP expressed concern that a) minutes of executive sessions were not being promptly disclosed the the public, b) the Council discussed an issue in executive session that ought to have been discussed in public, and c) the Council would privately discuss issues other than those listed on the executive session's agenda.

The referred to above are on-line here.

=

Wednesday, July 8, 2009

Local Finance Board Rejects Seven of my Complaints

Since early June 2009, I have filed formal complaints with the Local Finance Board against 182 Local Government Officers serving seven local governments. This is in addition to the formal complaints that I have filed against 70 Local Government Officials in municipalities that have their own ethics boards. All the complaints regard similar conduct--the officials' failure or refusal to file their Financial Disclosure Statements. (For background, search this blog for "Financial Disclosure.")

In order to save time, postage and paper, my procedure has, up to now, been to create PDF files of my complaints and e-mail them to the Local Finance Board's offices. I considered each of my complaints to be "signed" because they contained an electronic version of my signature in the signature block.

Today, however, the Local Fiance Board informed me that it was rejecting each of seven complaints that I've filed since June 1, 2009 because my electronically signed complaints do not, in their opinion, meet the statutory requirement that a "signed written complaint" must be submitted. See N.J.S.A. 40A:9-22.9.) Instead, the Board said that it will not process my complaints unless and until they are resubmitted "as a hard copy with an original signature."

So, I've printed out and assembled those seven complaints and they will be on their way to the Board's Trenton offices in tomorrow's mail. I only wish that the Local Finance Board applied the Local Government Ethics Law to government officials with as much vigor as it applies it to citizen complainants.

John Paff
Somerset, New Jersey

--Board's e-mail

Dear Mr. Paff:

The Local Finance Board (Board) has recently received several complaints from you by e-mail including those against officials in the [names of municipalities].

While a former staff member to the Board has apparently accepted complaint letters transmitted via e-mail by attachment from you in the past, the statute (N.J.S.A. 40A:9-22.9), as well as, the Board’s adopted Rules (N.J.A.C. 5:35-1.1(a)) requires a signed written complaint with an original signature. Therefore, in accordance with the Statute, we are requesting that you submit all complaints to the Board as a hard copy with an original signature. You may mail your complaint with an original signature to: Susan Jacobucci, Chair, Local Finance Board, P.O. Box 803, Trenton, New Jersey 08625. Those em ails submitted as complaints since June 1, 2009, will not be logged in as complaints unless they are received with an original signature. Furthermore, please be advised that some of the titles listed in your complaint may not be required to file a Financial Disclosure Statement. Auditors, Special Counsel and Members of Advisory Boards are generally not required to file. While the Ethics Law applies to all employees and officers of local governments, the financial disclosure requirement applies only to local government officers as defined in N.J.S.A. 40A:9-22.3g., which states in pertinent part:

.... any person, whether compensated or not, whether part-time or full-time: (1) elected to any office of a local government agency; (2) serving on a local agency which has the authority to enact ordinances, approve development applications or grant zoning variances; (3) who is a member of an independent municipal, county or regional authority; or (4) who is a managerial executive or confidential employee of a local government agency, as defined in Section 3 of the "New Jersey Employer-Employee Relations Act," P.L. 1941, c.100 (C.34:13A-3), but shall not mean any employee of a school district or member of a school board.

Furthermore, N.J.S.A. 40A:9-22.3.e states:

"Local government agency" means any agency, board, governing body, including the chief executive officer, bureau, division, office, commission or other instrumentality within a county or municipality, and any independent local authority, including any entity created by more than one county or municipality, which performs functions other than of a purely advisory nature, but shall not include a school board.

The Office of the Attorney General (AG) has issued various opinions that give advice as to the type of positions that are considered "local government officers." These opinions may be viewed on the Divisions web site at http://www.state.nj.us/dca/lgs/ethics/ag_opinions/opinions_toc.shtml. However, neither the Board, nor the Attorney General's Office is in a position to examine every local position or body in the State that is created by ordinance and determine whether or not it is subject to filing requirements. These determinations, to a large extent, are fact sensitive and must be determined on a case-by-case basis by each local government.

If you have any questions regarding this matter, please do not hesitate to contact David Nenno at (609) 292-0479 [or ]

Cracking the 75/50/25 OPRA fee schedule

In the past week or so, four news articles and editorials have been published that show that many local governments around the state are scrambling to drastically lower the cost of paper copies. Those articles are downloadable here.

07/02/09 Article - New Jersey Law Journal "Town Insurers Fear Effects of Ruling Limiting OPRA Charges to Actual Costs"

07/05/09 Article - Daily Record (Morristown). "Can cost a bundle for Morris public records."

07/08/09 Editorial - Daily Record (Morristown). "The cost of public records Towns should follow court guidance and reduce fees."

07/08/09 Article - New Jersey Herald (Newton). "Towns slash public records fees"

I urge readers to inform their local officials about this cost-lowering movement and urge them to follow suit.

Tuesday, July 7, 2009

Dealing with Custodians who "cannot locate" records.

Sometimes I get questions that I think might be of general interest. Here's one such question and my answer to it.

Question:

I asked for a record from my local school board and the custodian informed me in writing that the board "cannot locate this document at this time." Is this allowable under the Open Public Records Act (OPRA)? How long am I supposed to wait for the custodian to either find the record or determine that it cannot be found?

Answer:

No, the custodian's response is not sufficient.

Whenever a custodian receives a records request, OPRA requires him or her to provide the requestor with a written response within seven business days. Failure to do so is considered a "deemed" denial. Further, a custodian’s response must do one of four things: a) grant access, b) deny access, c) seek clarification or d) request an extension of time within which to answer. (see Jacqueline Andrews v. Township of Irvington, Government Records Council Case No. 2009-39, Executive Director's May 20, 2009 Findings and Recommendations, p. 4.)

Of the four types of responses allowed, a response that a custodian "cannot locate this document at this time" comes closest to a request for an extension of time. But the Government Records Council has held that when requesting an extension of time to respond to an OPRA request, a custodian must specify the length of time he or she is requesting. A response that "fail[s] to provide an anticipated deadline date upon which the requested records will be provided" "[is] inadequate pursuant to N.J.S.A. 47:1A-5.i." (See John Paff v. Township of Springfield, Government Records Council Case No. 2008-77 ­ Executive Director's June 16, 2009 Findings and Recommendations, pp. 11-12.)

In sum, OPRA does not permit custodians to simply respond that they "cannot locate this document at this time." If a custodian needs extra time to locate a record, he or she is required to establish a specific deadline within which access to a record will be granted or denied. (Note: the requestor doesn't have to accept the custodian's proposed deadline. N.J.S.A. 47:1A-5(g) states that "If a request for access to a government record would substantially disrupt agency operations, the custodian may deny access to the record after attempting to reach a reasonable solution with the requestor that accommodates the interests of the requestor and the agency.")

I suggest that you present the above argument to the custodian and consider filing a denial of access complaint if you don't receive a proper, timely response.

Monday, July 6, 2009

State ordered to release settlement agreement

On May 9, 2008, Mercer County Assignment Judge Linda R. Feinberg ruled in my favor in my Open Public Records Act case against the Division of Law. At issue was the Division's denial of my OPRA request for a settlement agreement arising out of a civil rights lawsuit filed against the New Jersey State Police. The case documents are on-line here.

I was ably represented by Richard Gutman, Esq. of Montclair and the Division of Law was represented by Deputy Attorney General Sarah B. Campbell, Esq.

John Paff
Somerset, New Jersey

Friday, July 3, 2009

Asbury Park Questioned on Executive Meeting Procedure

In a July 3, 2009 letter, the New Jersey Libertarian Party's (NJLP) Open Government Advocacy Project expressed concern over whether or not the Asbury Park City Council is properly abiding by the Senator Byron M. Baer Open Public Meetings Act (also known as the "Sunshine Act.").

In its letter, the NJLP stated that a) the City Council cannot refuse to release its executive meeting minutes in redacted form until after the minutes are "approved" by the Council; b) that the Council's private conversation about bicycle traffic appears to have violated the Sunshine Law; and c) that the Council cannot, while in executive session, discuss matters other than those listed in the session's authorizing resolution. The letter is on-line here.

John Paff, Chair
NJLP Open Government Advocacy Project
Somerset, New Jersey

Thursday, July 2, 2009

Hillside "Sunshine Ordinance" Compliance Date Extended

On September 8, 2008, the Township of Hillside (Union County) enacted a local "Sunshine" ordinance requiring it to become much more open and transparent. The ordinance was "voluntarily" passed by the Township Council after the filing of a citizen initiative petition, spearheaded by Councilwoman Shelley Ann Bates, that sought to force the ordinance to the ballot. (Hillside has a "Faulkner" form of government, so citizens can, by petition, bypass their elected officials and put ordinances directly on the ballot.)

After realizing that the ordinance's effective date had passed and that the Township had done virtually nothing to implement it, I wrote to the Mayor and Council on June 22, 2009 threatening to file suit unless immediate steps were taken to implement the ordinance.

On July 1, 2009, the Township Attorney informed me that on June 23, 2009, the day after my lawsuit threat was received, the Township Council introduced an amendment that will extend the Township's compliance date to September 8, 2009.

The stated justification for the extension is that implementing the ordinance "will require the expenditure of substantial sums of money" and that the "continuing global financial and economic crises" require further evaluation of the "manner and timing in which which the various components of the Ordinance are to financed and implemented so as to to ensure that the Township is not overburdened with unreasonable, irresponsible or unanticipated costs . . ."

The Township Attorney also informed me that Councilwoman Bates will take over as chair of the previously inactive committee that is tasked with overseeing the ordinance's implementation.

The ordinance to extend the Township's compliance deadline is set for final reading and passage on July 7, 2009 at 7 PM. My threatened lawsuit letter, the proposed amendment and the ordinance as enacted are on-line here.

John Paff
Somerset, New Jersey

Monday, June 29, 2009

Atlantic County Insurer Group issues "OPRA Bulletin."

On June 26, 2009, the Atlantic County Municipal Joint Insurance Fund Association (ACMJIFA) sent an "OPRA Bulletin" to the clerks of approximately forty member municipalities regarding Mercer County Assignment Judge Linda Feinberg's May 21, 2009 unpublished opinion in Getts v. Mercer County Clerk's Office (Docket No. MER-L-696-07).

(The Getts opinion is here and the clerks who received the Bulletin are identified here.)

As previously reported here, Feinberg held that OPRA requires custodians to charge citizens the ACTUAL COST for photocopying records and that the 75c/50c/25c copying fee schedule merely establishes a MAXIMUM COST for records. In other words, according to Feinberg, if it costs the town a nickle to make a copy, the clerk has to charge requestors a nickle for a copy and it is irrelevant that the OPRA statute sets a maximum charge of seventy-five cents. My original posting on the Getts decision is here.

In its Bulletin, the ACMJIFA said that while Feinberg's opinion is nonbinding, it is "highly likely that this determination will become law." The Bulletin goes on to say that "what that means is that public entities are still permitted to charge the maximum rate permitted by the Statute; however, if and when the law changes, there may be applications for refunds if you in fact charged more than the actual costs."

The Bulletin also advises that when responsive documents are sent to a requestor via e-mail attachments, the ACMJIFA "recommend[s] that there should be no charge. The Bulletin is on-line here.

Saturday, June 27, 2009

Favorable settlement in OPMA/OPRA case against Howell Township

In August 2008, I filed a five count pro se lawsuit against Howell Township in Monmouth County. On June 27, 2009, I received in the mail a signed Consent Judgment that resolved the first three counts of the complaint. The other two counts are still pending.

My Amended Complaint and the Settlement Agreement are on-line here.

Also, I've posted the May 6, 2008, May 20, 2008 and July 15, 2008 Howell Township Council's executive session minutes, in both redacted and unredacted form, here.

Following is a summary:

FIRST COUNT

I complained that the Township Council's closed session resolutions were too vaguely worded. For example, the June 10, 2008 resolution stated that the Council was going to privately discuss "Litigation, Personnel, Attorney Client Privilege." In the Consent Order, the Township, without admitting wrongdoing, agreed, going forward, to "set forth [within its executive resolutions] as much information about the topic(s) to be privately discussed that can be disclosed without undermining the N.J.S.A. 10:4-12(b) exception that authorized the topic(s) to be discussed in private."

SECOND COUNT

I complained that the Council, during its May 20, 2008 executive session, discussed an issue that ought to have been discussed in public--the formation of a COAH Advisory Board. In the Consent Order, the Township, without admitting wrongdoing, agreed, going forward "to carefully separate those issues that are eligible for nonpublic discussion in accordance with N.J.S.A. 10:4-12(b) from those that are not, and that in making this separation, the Council shall strictly construe the N.J.S.A. 10:4-12(b) exceptions against closure and in favor of openness in accordance with the decisions of the Superior Court regarding this issue."

THIRD COUNT

I complained that the Clerk, when explaining why certain matters were redacted, didn't explain the redactions in enough detail to make is possible for me to determine whether or not the redactions were properly applied. For example, the Clerk might explain why a large block of text was redacted by simply stating "Attorney Client Privilege." In the Consent Order, the Clerk, without admitting wrongdoing, agreed, going forward, "to provide a requestor of government records that are exempted and or redacted, in whole or in part, with a exemption/redaction index that provides: a) the legal basis for each suppression or redaction together with b) additional information to enable the requestor to understand the nature of the suppressed or redacted material and why it was redacted."

John Paff
Somerset, New Jersey

Friday, June 26, 2009

Level of "personnel" details in executive session resolutions

A question I received from a correspondent:

When a public body goes into executive session to privately discuss a "personnel" issue, how much detail on the personnel issue being discussed needs to appear in the resolution that authorizes the executive session? For example, it is permissible for the resolution to simply say that "personnel issues" are going to be discussed, or should it say something more, such as "personnel issues regarding a public works employee" or even "disciplinary issues regarding Mary Smith, a public works employee" are being discussed?

My response:

I have never seen a court decide this question, but I have convinced several municipalities, in consent judgments, to adopt the following rule on how to decide this thorny question: The governing body shall, in the normal case, disclose as much information in its executive session resolution about a personnel matter that the body's attorney predicts will be publicly disclosed about the same personnel matter when the executive session minutes are later released.

I base this rule on the New Jersey Supreme Court's decision in South Jersey Publishing Company, Inc. v. New Jersey Expressway Authority, 124 N.J. 478 (1991). This case held that a) the public needs information if it is properly fulfill its role of evaluating the wisdom of governmental action or a decision not to act, b) that New Jersey's strong public policy requires that a public body’s actions and decisions to not act be disclosed in the body's closed meeting minutes along with sufficient facts and information to permit the public to understand and appraise the reasonableness of the body's determination, and c) to the extent a cognizable privacy interest may be compromised by the required disclosure, the extent of disclosure may be modified through redactions of the minutes, provided the public interest in disclosure is not subverted

Accordingly, my position is that if the public body is going to publicly identify the name of the employee under discussion and the reason why he or she was being discussed in the body's executive meeting minutes, when the nonexempt portions of those meeting minutes are released (perhaps thirty days after the meeting), there is no compelling need withhold the same information from the public when the meeting is held.

For example, suppose that a Borough Council goes into closed session on July 1, 2009 to discuss whether Mary Smith, a public works employee, ought to be disciplined for repeatedly arriving late to work. If the nonexempt portions of the executive meeting's minutes, which will be "promptly" disclosed on or before August 1, 2008, are going to inform the public that the Council decided to discipline (or not discipline) Mary Smith for habitual lateness, it doesn't seem to serve any legitimate public purpose to tell the public, in the July 1, 2009 executive resolution, only that a "personnel" matter is going to be discussed.

It seems to me that if the public is going to know who was being privately discussed and why they were being privately discussed in a month's time, there's no compelling reason for depriving the public from knowing the name of the employee and the nature of the discussion before the discussion takes place. While I'm certain that Mary Smith isn't going to be thrilled that everyone in town will know that discipline is being considered because of her habitually lateness to work, it's not going to be substantially less embarrassing for her if the public knows this information on August 1st instead of July 1st.

I'm not arguing that an employee can never have a legitimate privacy interest in issues touching upon his or her employment. If, suppose, a municipal council wanted to discuss giving employee John Doe an extended leave of absence because he has dread disease, his interest in keeping his disease private would appear to easily exceed the public's interest in knowing this very personal information. Further, I'm not even arguing that the public's interest in knowing about every routine disciplinary case, such as Mary Smith being dunned for habitual lateness, will always exceed the employee's right to privacy.

Rather, all I am saying is that a skilled municipal attorney who is aware that a certain personnel matter is going to be privately discussed, ought to be able to apply the South Jersey Publishing case's standard to that personnel matter and fairly accurately predict the level of detail that the private meeting minutes will disclose when the nonexempt parts of those minutes are released the following month.

If the attorney predicts that the employee's identity and the nature of discussion will be publicly identified in the upcoming minutes, then I assert that in the normal case, the public's interest in knowing that information now, instead of a month from now, is greater than the employee's interest in keeping that information under wraps for another month. Conversely, if the attorney predicts that the employee's privacy interests warrant less information to appear in the minutes, then less information ought to also appear in the corresponding executive resolution.

John Paff
Somerset, New Jersey

Favorable outcome in Paff v. Port Republic

During a thirty-minute hearing today, June 26, 2009, Atlantic County Assignment Judge Steven P. Perskie ruled that the City of Port Republic did not abide by the Open Public Meetings Act when it failed to issue even redacted versions of its January 2008 closed session minutes when I requested them in August 2008.

The vast bulk of the discussion during the hearing was between Judge Perskie and Port Republic's attorney, Salvatore Perillo, Esq. (who also serves as the Mayor of Ocean City, New Jersey). I needed to say very little.

Judge Perskie became somewhat exasperated when Mr. Perillo didn't or wouldn't understand the precise issue that was before the court. Mr. Perillo kept arguing that the fact that the Clerk had promptly sent me a resolution identifying the topics discussed during executive session provided me with sufficient information and that I had no real need for the redacted minutes themselves. Judge Perskie correctly stated that the issue was whether the OPMA requires timely access to executive meeting minutes even if those minutes need to be heavily redacted to protect legitimate governmental objectives.

After Mr. Perillo's pressed the same irrelevant argument several times, Judge Perskie asked "which one of us is Abbott and which is Costello?"

The judge appeared inclined to sign the form of order that I had submitted with my cross motion. He also said that Port Republic is to reimburse me my cost of suit. The motion paperwork is on-line here.

John Paff
Somerset, New Jersey

Wednesday, June 24, 2009

Recording citizen comments in meeting minutes

I received the following question:
"I spoke during the public portion of a local board of education meeting and specifically requested that the concern I raised be recorded in the meeting's minutes. The Board secretary refused to do so and said that the required elements to be included in the minutes are time, attendance and votes on resolutions (actions taken) and that anything else that may appear in the minutes is subject to the board's discretion. Is this legal?"
I don't have a definitive answer. In an attempt to shed light on this question, I've located three Appellate Division decisions and one trial level decision on the issue and have quoted from them below. The decisions, especially the second and third ones, are not very hospitable toward minutes having to include anything more than the bare minimum.

But, in the Liebeskind decision (see below), the court ruled that it was an OPMA violation for the governing body to not include the fact that the plaintiff submitted a written objection to a proposal that was discussed at a meeting. Also, the Liebeskind court seems to say that a public body ought to at least include the names of citizens who spoke at a meeting even if it is not required to summarize what each citizen said.

Also the South Jersey Publishing case (quoted in Liebeskind below) requires a bit more detail and specificity to be included in the minutes when a personnel matter is decided. I read the Liebeskind decision as refusing to extend the South Jersey Publishing ruling to minutes that record matters other than personnel matters.

It is also worth noting that each of the appellate decisions dealt with applications to void out, in accordance with N.J.S.A. 10:4-15, an action taken by the public body. My thought is that a court may be more accommodating if more verbose minutes were requested by way of an application for injunctive relief in accordance with N.J.S.A. 10:4-16.

I think that more litigation needs to be brought to resolve the question of exactly what level of detail regarding citizens' public comments needs to be recorded in the meeting minutes. As an alternative, we can work to enact Sen. Loretta Weinberg's bill--S1548--which will specifically require meeting minutes to include "the identity of each member of the public who spoke and a summary of what was said."

John Paff
Somerset, New Jersey

CASE NO 1.

The following is taken from pages 400 through 402 of the Appellate Division's 1993 published decision in Liebeskind v. Mayor and Mun. Council of Bayonne, 265 N.J.Super. 389.

N.J.S.A. 10:4-14 requires the public body to keep “reasonably comprehensible minutes.” This does not mean word for word recitation of every event or a verbatim detailing of every public comment or objection. The cases cited by plaintiff in support of a contrary view do not advance his cause. In Battaglia v. O'Brien, 59 N.J.Super. 154, 171-72, 157 A.2d 508 (App.Div.1960), minutes of a zoning board of adjustment variance hearing were missing entirely, thus precluding any meaningful review. Similarly South Jersey Publishing Co., Inc. v. New Jersey Expressway Auth., 124 N.J. 478 (1991), no minutes were available at all because the authority acted in a private meeting. It was in this context that the Supreme Court utilized the language which plaintiff here relies on: “The minutes are intended to recite and disclose any official decision or action taken by a public body, and necessarily must contain sufficient facts and information to permit the public to understand and appraise the reasonableness of the public body's determination.” Id. at 493.

This does not mean that the public body must reveal the reasons why it took the legislative action that it did. Township of Bernards v. State, Dept. of Community Affairs, 233 N.J.Super. 1, 28, 558 A.2d 1 (App.Div.), certif. den. 118 N.J. 194-95, 570 A.2d 959 (1989). N.J.S.A. 10:4-14 simply requires that what took place at the meeting and what final action was taken should be reflected in the minutes. Here, what actually occurred at the meeting was that plaintiff submitted a letter objection to the proposed ordinance. Despite this, the minutes reported that no objections had been filed with the clerk. The minutes should have been corrected to reflect the receipt of plaintiff's letter and we so order. Other than this, we see no reason to intervene. The minutes indicated the action contemplated; declared who was present at the meeting; recited public notice; reflected who moved and seconded the resolution to amend the 1976 salaries ordinance; stated the names of the public participants, and recounted which council members voted in favor of passage of the amendment. We are satisfied that these minutes adequately reflect what transpired at the meeting and that a citizen of Bayonne who reviewed the minutes along with the ordinance, which included a new salary schedule with retroactive effect, would fully understand what had occurred. That is all that is required by N.J.S.A. 10:4-14.

CASE NO 2.

The following is taken from the Appellate Division's 2006 unpublished decision in Albano v. City of Vineland (2006 WL 3626766). The court considered a citizen's challenge to a redevelopment ordinance that permitted a Wal-Mart to be built. One of the citizen's arguments was that one of council members, James Forcinito, whose son worked at Wal-Mart, commented on his son's employment at a public meeting but that the Council failed to record that comment in meeting minutes. Thus, the citizen challenger argued that the meeting minutes were not "reasonably comprehensible" as required by N.J.S.A. 10:4-14. The court held:

Finally, plaintiffs assert that the adoption of the amendments to the redevelopment plan should be voided due to a violation of the Open Public Meetings Act (the Act), N.J.S.A. 10:4-6 to -21. The comments made by Councilman Forcinito during the May 10, 2005 City Council meeting were not placed in the minutes taken for that meeting. Plaintiffs argue that this violated the section of the Act requiring: "Each public body [to] keep reasonably comprehensible minutes of all its meetings showing the time and place, the members present, the subjects considered, the actions taken, the vote of each member, and any other information required to be shown in the minutes by law, which shall be promptly available to the public ..."

"Reasonably comprehensible" does not mean "word for word recitation of every event or a verbatim detailing of every public comment or objection." Liebeskind v. Mayor and Mun. Council of Bayonne, 265 N.J.Super. 389, 400-01 (App.Div.1993). Rather, N.J.S.A. 10:4-14 "simply requires that what took place at the meeting and what final action was taken should be reflected in the minutes." Id. at 401. The minutes satisfy the statutory requirement, and accordingly there was no violation of the Act. Therefore, Judge Forester properly held that Council did not violate the Act by failing to include Councilman Forcinito's comment about his son's employment at Wal-Mart.
CASE NO 3.

The following is taken from page 28 of the Appellate Division's 2006 published decision in Township of Bernards v. State, Dept. of Community Affairs, 233 N.J.Super. 1

Cherry Hill's next contention is that COAH did not keep “reasonably comprehensible” minutes, required by N.J.S.A. 10:4-14.

N.J.S.A. 10:4-14 states that "[e]ach public body shall keep reasonably comprehensible minutes of all its meetings showing the time and place, the members present, the subjects considered, the actions taken, the vote of each member and any other information required to be shown in the minutes by law...."

The elements required to make the minutes “reasonably comprehensible” are listed in the section. Although Cherry Hill claims that much more is needed, specifically, the reasons why the members voted as they did, we disagree. COAH has done all that the statute required it to do in recording its minutes.
CASE NO. 4

In Martin O'Shea's case against West Milford Township, Judge Passero in an unpublished trial level ruling in Passaic County, remarked that if a citizen makes a comment or asks a question during the public portion of a meeting, at least the subject of the citizen's comment or question should be recorded in the minutes. Otherwise, there would be no way of proving by way of the minutes that the body was on notice of a particular issue. See pages 14-15 of the transcript which is on-line here.