Friday, January 30, 2009

GRC holds that municipalities can designate multiple custodians

The Open Public Records Act (OPRA) expressly states that "in the case of a municipality,.the municipal clerk" is the designated custodian of government records. N.J.S.A. 47:1A-1.1.

I've always taken this to mean that once an OPRA request was submitted to the municipal clerk, the clerk was responsible for fulfilling and responding to the request even if the records sought were in the possession of the police department, health department or some other municipal agency or department.

Therefore, I was a bit surprised when the Government Records Council (GRC) recently ruled in Paff v. Berkeley Heights, GRC Complaint No. 2007-271, that since the Berkeley Heights Police Department had its own OPRA form and records custodians (see the police department's web site here), that the Berkeley Heights municipal clerk was no longer under an obligation to process my request for records that were allegedly police records. Rather, according to the GRC, all the Berkeley Heights Township Clerk needs to do when she receives a request for police records is to forward the request to the "proper custodian of record or direct the Complainant to the proper custodian of record." The decision Paff v. Berkeley Heights is here.

If this is the case, then any municipality can, conceivably, designate separate custodians for each municipal department who, in turn, would each develop their own department-specific OPRA request form. Then, requestors would be burdened with the tasks of a) determining the custodian to which his or her request should be directed and b) securing a blank copy of that custodian's specific OPRA request form. Also, a requestor who desired two different types of records (e.g. a municipal council resolution and the minutes of a rent levelling board meeting) would have to submit two requests on two different forms.

Since I had never previously seen a GRC decision holding that a municipality can have more than one custodian, I wrote to GRC Case Manager Frank F. Caruso. My letter and Caruso's response is here.

In his response, Caruso correctly stated that the GRC, in the past, has recognized municipal officers other than the clerk as the municipality's custodian for certain categories of records. For example, Caruso cites L.D. v. Bayonne Police Department, GRC Complaint No. 2004-64 as a case where an official from a municipal police department acted as the custodian of police records. In the Bayonne case, and in all of the other cases cited by Caruso, the requestor had originally made his or her request to the police department, was denied and then filed a GRC complaint to challenge the denial.

None of the cases Caruso cites, however, address the propriety of a municipal clerk refusing to process a records request because it asks for a record within a category for which a different municipal officer had been designated custodian. Accordingly, it appears that the GRC has broken new ground in Paff v. Berkeley Heights.

Caruso also claims that having multiple municipal custodians (and multiple municipal request forms) "facilitate[s] public access to the records of those departments [and] make[s] it easier for requestors to seek and obtain government records in an expeditious manner consistent with OPRA." I think that the opposite is true. Having multiple municipal custodians and multiple forms makes the request process more difficult and burdensome for requestors.

Court decides Paff v. Keyport - a mixed bag but more wins than losses

Superior Court Assignment Judge Lawrence M. Lawson issued a written opinion yesterday in my Open Public Records and Meetings Act lawsuit against the Keyport Borough Council and the Borough's record custodian (Paff v. Keyport Borough Council, et al, Docket No. MON-L-3317-07).

The opinion, along with the trial briefs, exhibits and other case documents are on-line here.
(file is about 2.5 MB).

Following are the five main points that I argued, and Judge Lawson's ruling on each of them:

1. WERE THE KEYPORT COUNCIL'S CLOSED AND PUBLIC MEETING MINUTES MADE AVAILABLE “PROMPTLY” IN ACCORDANCE WITH N.J.S.A. 10:4-14?

Judge Lawson agreed with me and issued a permanent injunction requiring the Keyport Borough Council to publicly disclose both its public meeting minutes and the nonexempt portions of its nonpublic (i.e. executive or closed) meeting minutes within 30 days after the meeting or prior to the next scheduled Council meeting, whichever occurs first.

2. DOES THE OPEN PUBLIC MEETINGS ACT PERMIT THE COUNCIL TO PRIVATELY DISCUSS ORDINANCES UNDER THE “POTENTIAL LITIGATION” EXCEPTION AND GENERAL EMPLOYMENT AND STAFFING MATTERS UNDER THE “PERSONNEL" EXCEPTION?

Judge Lawson agreed with Keyport that it was appropriate for the Borough Council to
discuss matters in closed sessions listed under topic headings "Loitering of Day Workers", "Proposed Ordinance-Smoking in Motor Vehicles with Children", K. Hovnanian, the "need to find someone on a three-man shift that can check parking in the business district" and a general question concerning Class I and Class II specials.

3. DOES THE PLAINTIFF’S RIGHT TO KNOW THE IDENTITIES OF SPECIFIC BOROUGH EMPLOYEES DISCUSSED DURING CLOSED SESSION OUTWEIGH THE BOROUGH'S NEED FOR CONFIDENTIALITY?

On the issue that was important to me--whether or not the Borough Council is allowed to redact from its closed meeting minutes the names of Borough officials who were subjected to discipline--Judge Lawson ruled in my favor. He ruled that under OPRA, I am entitled to the names of the specific officers and employees disciplined. However, Judge Lawson also ruled that I am not allowed access to a redacted word in the closed minutes that might reveal medical information about a police officer.

4. DID THE BOROUGH CLERK PROVIDE THE PLAINTIFF WITH A LEGALLY JUSTIFIABLE REASON FOR DENYING HIS REQUEST FOR E-MAILS AND FOR REDACTING CLOSED SESSION MEETING MINUTES?

Judge Lawson did not reach this question because he found that my challenge was time barred because it was not brought within 45 days after the denial. (Note: the decision that established the 45 day period, Mason v. City of Hoboken, was not decided by the Supreme Court until after I had filed my suit.)

5. SHOULD THE BOROUGH PAY PLAINTIFF'S COURT COSTS?

Judge Lawson found that I was the prevailing party and thus entitled to recover my costs from Keyport.




Convicted criminals and OPRA

One thing that has always troubled me is when a record custodian's official request form requires a requestor to always certify that he or she has never been convicted of an indictable offense, regardless of what types of records are requested.

While N.J.S.A. 47:1A-2.2 prohibits convicted criminals from using OPRA to get personal information on the victims of their crimes and their victims' families, nothing in OPRA is intended to prevent convicted criminals from accessing other types of records, such as meeting minutes and budgets, that are not related to any crime victim.

I filed a complaint with the Government Records Council that addresses this issue, as well as some other bothersome issues regarding OPRA request forms. For those who are interested, the complaint is on-line
here.

Editorial response to OPMA settlement

Editorial: Daily Journal (Vineland, New Jersey)
December 10, 2008

Transparency makes for good government

Democracy works best when the public is informed and has access to government information.

An open government is transparent, which allows citizens access to public meetings and public records to find out how elected and appointed officials conduct business and spend taxpayers' money.

An agreement amicably reached between the Buena Vista Township Committee and the New Jersey Libertarian Party will help make the actions of the elected officials more transparent and will help the public hold them accountable.

John Paff, a Libertarian party official and chairman of the party's Open Government Advocacy project, made it clear the township wasn't doing anything deliberately wrong. The committee's former practice of just listing on the agenda that it was going into executive session and nothing else is a common practice in governments around the state.

It was good to hear Mayor Chuck Chiarello say that changing that practice wasn't a problem. For the past few meetings, the agenda has included more information on the items in closed-door meetings called to discuss personnel, litigation or contracts. For example, if litigation were being discussed, information on whether a suit has been filed would now be included as public information.

Paff said other towns are fighting his group's efforts to make government more open and transparent and to make sure they are following the Open Public Records and Open Public Meetings acts.

Buena Vista Township isn't one of them. And because the municipality is conscientious about fulfilling its responsibilities concerning public records and meetings, citizens will be better informed and more light will being shined on how the municipality conducts the people's business.

Other governments should take a look at how they are handling such agendas. Buena Vista's example would be a good one to follow. After all, it is the law.

More press regarding two Atlantic County OPMA settlements

PRESS OF ATLANTIC CITY
Two of 17 Atlantic towns settle public records suits

By EDWARD VAN EMBDEN Staff Writer, 856-649-2072

Published: Thursday, December 18, 2008

A civil suit brought against 17 Atlantic County municipalities for alleged violations of the Open Public Records Act has resulted in two towns changing the way they conduct business.

Both Buena Vista Township and Folsom reached a settlement with John Paff, of the New Jersey Libertarian Party's Open Government Advocacy Project, earlier this month to provide the public with more details of their executive sessions.

Litigation against the other towns is ongoing.

Paff said he chose litigation against the municipalities after OPRA requests revealed violations regarding either the lack of details of matters discussed prior to closed sessions or withholding of minutes from those closed session meetings.

"A lot of towns just aren't in compliance," said Paff, a Somerset resident. "I think once they saw what I was really looking for, they didn't have a problem. They know it's in the best interest for the public."

As terms of the township's settlement, Buena Vista Township Mayor Chuck Chiarello said that prior to going into a closed session, Township Council members will give more details about the items they intend to discuss.

Paff took issue with the township's resolutions and entered into litigation because he felt they did not provide adequate information. It was something, Chiarello said, that was easily, and cheaply, rectified.

"Essentially, Mr. Paff's contention was that if you wanted to find out what was happening in closed session, where we normally go in and discuss personnel issues, litigation and contract disputes, there was no way for the public to follow it that night," he said. "We were able to resolve it amicably and we will go on from there."

Now, Chiarello said, before Township Council goes into closed session, it presents a list of things that will be discussed. While finite detail isn't required by the law or the settlement, the discussions now provide some more information, he said.

Folsom also resolved the litigation by agreeing to make redacted versions of its executive session minutes available at least two days prior to the public hearings. This, Paff said, gives citizens the opportunity to review the non-exempt portions of the executive minutes in time to comment on them during the public portion of the regular council meetings.

The civil complaint filed against the 17 towns came on Oct. 3. Paff said he's been in discussion with several municipalities since then, some of which are looking to resolve the matter and others that are choosing to fight it.

He said he plans on making the same OPRA requests of towns in other counties as well, saying he only started with Atlantic County because it began with the letter A.

"I'm not looking for them to give up secret information, I'm only trying to make sure that at least the stuff the public is allowed to know about, they do," Paff said. "Not to have these sterile meetings where they give a firefighter a plaque and then go behind closed doors to discuss all the good stuff.

"Hopefully this will have a statewide impact. And I think it will, it's getting their attention," he said.

His efforts have not been entirely well-received by all municipalities, he said, though he's been surprised at some of the responses.

Port Republic has been combative, he said, and its lawyer,Salvatore Perillo, has called the lawsuit frivolous. Perillo is also the mayor of Ocean City, though Paff's search hasn't taken him to Cape May County, yet.

Absecon has withheld minutes, Paff said, and Atlantic City has provided him with all of his requests for closed-session minutes. However, they often contain pages and pages of blacked out, or redacted, information, which he feels is too much.

Generally, he said, the towns seem willing to address his concerns.

"I got very detailed in these settlement agreements," he said. "I approached all the towns to see if they would sign off on this and the response has been pretty good. I think I've worked up a lot of these towns.

"They've just been doing the things they've always been doing and no one has really noticed."

Buena Vista Township Solicitor Mark Stein said the settlement was particularly easy for the township because it only required a minor change. Fighting it, he said, would have been unnecessary and only cost the taxpayers money.

The cost to settle the matter, he said, was about $40.

"He had some technical questions with what our resolutions said when we went to closed session, so we resolved it," Stein said. "While I don't necessarily agree or disagree with it, changing it was no hardship to us and it ended the litigation."

Another reason it was so easily resolved, he said, is that the township has always been very forthright with its executive session minutes. While he didn't speculate on specific municipalities, he did say that releasing closed minutes is likely more of a concern than providing greater details prior to closed meetings.

Chiarello said the township provided Paff with all the information he requested in his initial issue, and when he found fault with it, the two parties sought to fix it.

"The whole concept - the word now is transparency - is open government," Chiarello said. "There's a reason why the Sunshine law and the Open Public Meeting Act were put together.

"We operate like a business and we're responsible to the public."

Atlantic County towns named in the lawsuit:

Absecon, Atlantic City, Buena Vista Township, Corbin City, Egg Harbor City, Egg Harbor Township, Folsom, Galloway Township, Hamilton Township, Hammonton, Linwood, Longport, Margate, Mullica Township, Northfield, Port Republic, Somers Point.

Ocean Township Police Internal Affairs

One of the most secretive areas in local government is the police department's "internal affairs" process. Through several OPRA requests, I have obtained internal affairs records from the Ocean Township Police Department in Ocean County (i.e. Waretown).

I have uploaded here, public filings regarding OTPD disciplinary actions from 2004 through 2007.

There are two different types of reports in this file. First, there are "Internal Affairs Summary Report Forms" that show the number of complaints that were received and processed. Second, there are police memoranda that give more detail as to the nature of the discipline cases. Neither report contains the names of the officers who were disciplined or against whom complaints were filed. (Note: Can you find the logical inconsistency between the 2004 and 2005 summary report forms? I did and I asked OTPD chief to give me a corrected report.)

Still, the reports are somewhat useful in that they reveal such things as: a) a "sexual harassment" complaint was sustained against an officer in 2007, b) an officer was disciplined in 2005 for driving with an expired driver license, and c) an officer was disciplined in 2005 for being intoxicated.

I have uploaded here my recent OPRA request to Ocean Township, a letter from the Township Attorney partially denying my request and a February 2, 2004 letter that the Internal Affairs Unit sent to a man who had filed a complaint against OTPD Officer Leanne Petracca for allegedly conducting a racially motivated traffic stop. (The man's lawsuit against Officer Petracca and the Township settled in August 2008 for $50,000.)

I believe that the public has a legitmate right to know exactly what discipline was imposed on Officer Petracca. But, as you can see, Ocean Township takes the position that even though the fact that Officer Petracca was disciplined is public knowledge, the public's right to know the amount and type of discipline she received is subordinate to the government's need to protect disciplinary or personnel files from public disclosure.

(If NJFOG, an attorney or any other organization believes that this presents a good set of facts for a civil case under the common law right of access, please let me know because I am a willing plaintiff. Note that there is a 45 day period within which such a complaint must be filed.)

Finally, I've obtained the OTPD's Standard Operating Procedure governing its Internal Affairs process. I've scanned it into a file, converted it to text, reconverted it to a text-searchable PDF and have uploaded it here.

Local Finance Board is slow in responding

After my recent posting, I received a few comments advising me that the Local Finance Board, which handles the bulk of the municipal ethics complaints filed in New Jersey, is very slow processing the complaints. I concur with these correspondents and offer the following as evidence of the slow pace at which the Local Finance Board operates.

On January 3, 2005, I wrote a letter of complaint to the Local Finance Board which is at pages 13 and 14 of the file I've uploaded here.

In that letter, I complained that as of 2004, 9 of the 33 complaints that the Board had received in 1999 were still not resolved. In other words, nearly a third of the complaints docketed in 1999 remained unresolved even though five years had elapsed. The Local Finance Board's March 23, 2005 response, which is at the last page of the file at the above link, expresses the Board's view "that complaints are being handled appropriately."

When I submitted another request for the Board's ethics complaint status reports in March 2006, I received the records that comprise the first thirteen pages of the file at the above link. As you can see, the Board did resolve 3 of the 9 1999 complaints in the fifteen months since receiving my January 3, 2005 letter, leaving 6 of those complaints unresolved.

One problem with this slow pace is that the Local Finance Board refuses to release any information about its open cases, including the name of the local government officer or employee against whom a complaint was filed, or the name of the local government entity that the complained about officer or employee serves. This means that a member of your municipal council may have been named in one of the unresolved ethics complaints filed in 1999 but as of 2006--7 years later--you would still have no way of knowing that the complaint had been filed.

Today, I filed another OPRA request with the Local Finance Board for its ethics case status records from 1999 to 2008 and for the years prior to 1998 for which any cases remain unresolved. I will post these records and notify this list upon receipt.

Unless the Local Finance Board has radically improved its handling of complaints, I may be asking readers of this list to complain to their state legislators and ask for their help in getting the Local Finance Board to be more prompt.

Thursday, January 29, 2009

Use of Email by public bodies

Here's an article that touches on the permissible and impermissible uses of email by public officials. The League of Municipalities' publication--"The Perils of E-mail"--discussed in the article is on the League's site here.

----------------------------------------
New Jersey towns cautioned against using e-mail to sidestep public meeting laws
Monday, December 15, 2008
By STEPHEN J. NOVAK
The Express-Times

WASHINGTON - It was an oversight that a builder's $113,000 bill missed getting on a council meeting agenda, borough officials said. When it came due, the borough manager needed quick approval to pay it before the council's October meeting.

But getting that approval by e-mail, one official said at the October meeting, was not the way to do it.

"We broke the law," said Washington Borough Deputy Mayor David Higgins. Higgins encouraged a vote that no future actions be taken via e-mail.

"I think something needs to be put in place to keep this from happening again," he said. The motion passed unanimously.

The role of e-mail in New Jersey's public meeting laws is still being debated in court, leading most experts to recommend discretion in their use.

In an article on the New Jersey League of Municipalities Web site, "The Perils of E-mail," league staff Attorney Deborah Kole cautioned municipal leaders against getting too casual with their e-mail habits. Even language must be taken into consideration, she said.

E-mails "can be used so informally that people think of them like talking, but they are official documents," Kole said.

The New Jersey Open Public Records Act defines a government record as documents or recordings either printed or stored electronically by government agencies during the course of official business.

State meeting laws do not include specific language referring to e-mails, though it is generally agreed the same rules apply.

"I advise that (governing bodies) should not have a quorum of their members e-mailing each other back and forth on official business. That can be construed as a meeting," Kole said.

E-mail is determined to be a public record if it has public content, even at an official's private e-mail address, Kole said. They also fall under records retention rules so officials cannot delete e-mails containing public content.

One open government advocate said the two biggest problems with e-mail correspondence among officials are the use of e-mail for improper purposes and the use of personal e-mail accounts, which he said hampers document retention.

"There are some tools to address these problems, but unfortunately there's no enforcement," said John Paff, chairman of the New Jersey Libertarian Party's Open Government Advocacy Project.

Legal punishments for open records or meeting violations include individual penalties and the negation of a government action if it is deemed to be taken inappropriately.

Meeting violations are handled by county prosecutors' offices but must be brought to authorities' attention by residents, Kole said.

"It's the public that's affected by any violation," she said.

Reporter Stephen J. Novak can be reached at 908-475-2174 or by e-mail at snovak@express-times.com.

Originally distributed on December 19, 2008

OPRA dislodges a "secret" settlement agreement

Lately, I've been endeavoring to use OPRA to dislodge settlements of lawsuits where at least one of the parties is a government agency, official or employee. Some of the agreements, like the one in the following news article, contain confidentiality clauses that prevent the parties from discussing the settlement terms. Others don't have confidential clauses but the public and media are often not aware of them because of the length of time--often years--between a suit's filing and the settlement. When I flush out a settlement agreement, I put it on-line, notify the local media and place an article on my blog.

Below is a news article on a confidential settlement agreement I recently learned about. It discloses that Mount Holly Township paid $75,000 to a local couple who had sued Township officials about how they were treated when a dispute arose over whose responsibility is was to replace a substandard sidewalk. The civil complaint and the confidential settlement agreement mentioned in the article are on-line here.

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Mount Holly settles civil rights lawsuit
By: DANIELLE CAMILLI
Burlington County Times

MOUNT HOLLY — A federal civil rights lawsuit that pitted a Garden Street couple against town hall has been settled with the township admitting no wrongdoing, but paying the residents $75,000 in a confidential agreement.

The settlement between the township and Andrew and Alda Copeland was signed in September, but made public only this month after the chairman of the New Jersey Libertarian Party’s Open Government Advocacy Project requested and received documents through the state’s Open Public Records Act.

John Paff said the group seeks to increase governmental transparency and accountability.

He has now posted the settlement on the group’s Web site.

According to court documents, the township agreed to pay the Copelands $75,000 and repair the sidewalk adjacent to their home on the 500 block of Garden Street.

The repair of the buckling sidewalk, which is on public property, had been in dispute since at least 2005. The township cited the couple for the sidewalk, saying it was a safety hazard and the residents’ responsibility to fix it per township ordinance.

In 2006, a Superior Court judge dismissed the citation after the Copelands, representing themselves, argued that they should not be responsible for repairs of public property.

A year later, the Copelands filed the federal suit, claiming racial discrimination and township retaliation for them speaking out at public meetings and in the press. The Copelands are black.

“The township denies each and every allegation,” the confidential settlement reads.

“…The township expressly denies that it committed any wrongdoing.”

The settlement requires all parties to keep the terms confidential. The agreement specifically prohibited the township or the residents from taking “any action to affirmatively notify the news media of the resolution of this action.”

“If asked … [the Copelands and the township] will state only that the matter is settled, and that the settlement is satisfactory,” according to court documents.

Originally distributed on January 3, 2009

Rutherford Council Bylaws to be discussed this Wednesday

At a special meeting to be held on January 14, 2009, at 7 p.m. the Rutherford Mayor and Council will discuss amendments to the Council's bylaws.

In its January 12, 2009 letter, the Libertarian Party's Open Government Advocacy Project offered some comments and suggestions regarding Rutherford's bylaws. That letter, along with a copy of the present bylaws, is on-line here.

I decided to get involved with Rutherford's bylaws after reading an article in the local paper, which I've pasted below.

Anyone who wishes to make additional suggestions to be considered by the Council at its January 14th meeting can send them to Clerk Mary Kriston at MKriston@rutherford-nj.com

----

Out of money and out of patience: Rutherford Council off to a rocky start

By Susan C. Moeller
Senior Reporter

RUTHERFORD (Jan. 2. 2009, 3:15 p.m.) — A deficit and lots of drama marked the beginning of the New Year in Rutherford. The Borough of Trees ended 2008 in the red by approximately $300,000, and Mayor John Hipp accused the council of holding secret meetings and pledged to end the practice.

Bombshell

During his annual address, Hipp dropped a bombshell.

Anytime two members of the council meet to talk about borough business, they are violating the Open Public Meetings Act if they don’t invite the other council members, Hipp continued.

“Those types of secret meetings cannot take place,” he said. “This year we will see to it that there are no secret meetings.”

Hipp strengthened the accusation in an interview after the meeting. The council has had illicit meetings by e-mail, in person and by telephone. “It has gone on in Rutherford,” he said. And, “It goes on in other towns, too.”

Democrat Councilwoman Maura Keyes was livid. “This is supposed to be an upbeat happy day, and we get bombed with something like that.”

“There are no secret meetings,” she said. “Council members are allowed to talk to each other.” When they talk, they aren’t conducting business or making decisions. “We’re not voting,” she said. “We’re not doing anything like that.”

An irate Republican Councilwoman Rose Inguanti also denied Hipp’s statements. “It’s so offensive,” she said. “He’s accusing us of violating the law.” The council’s meetings wouldn’t go on until midnight if the members had met before hand to decide what action to take, Inguanti added.

Deficit

Before newly-elected council members Kim Birdsall and Joe DeSalvo were sworn in, the 2008 council’s final action included a resolution to take $221,000 in unused money from capital projects and put it into a surplus account that will help offset the deficit it is bringing into 2009.

There’s no sofa from which to dig out change, but the borough has been scraping money from wherever it can to make up for a $1.2 million revenue shortfall that is largely attributable to the failure of EnCap Golf Holdings, LLC to pay its taxes. The New Jersey Meadowlands Commission even chipped in $400,000. But, at the end of the day, the borough was still more than half a million short.

Deficits are serious business in the world of municipal finance. Imbalances created by over expenditures are “a violation of the law,” Cortright said.

But, Rutherford’s deficit is not due to overspending. The imbalance stems from revenue shortfalls created by EnCap’s outstanding tax debt, Cortright said.

Legality aside, the Borough of Trees is still not out of the woods.

Rutherford may want to sell bonds next year, Cortright said. And, a deficit in the budget will not look good to investors.

With the dire financial picture painted, and with Birdsall and DeSalvo in their new positions behind the dais, Inguanti broke with political tradition and nominated Keyes as president of the council.

Keyes, who was elected unanimously, in turn nominated Inguanti as Vice-President. Inguanti’s nomination was also confirmed unanimously, making Rutherford’s council the only in South Bergen to be lead by women.

The next order of business, an attempt to amend the council’s bylaws - including a clause to establish an 11 p.m. curfew on meeting times, was tabled after Hipp said that the changes proposed by the council violated state law. He asked for a special meeting to go over the bylaw amendments with a fine-toothed comb.


Originally distributed on January 12, 2009

Police settlements get press coverage

This is in today's paper.

John Paff
Somerset, New Jersey
-------------------
$245K paid to settle police brutality suits

by Veronica Slaght / Hunterdon County Democrat

Wednesday January 14, 2009, 12:29 PM

READINGTON TWP. -- Two police brutality lawsuits were settled for a total of $245,000, according to agreements recently unearthed by open public records advocate John Paff.

Mr. Paff is a Somerset resident who runs the state Libertarian Party's Open Government Advocacy Project. He has also pressed the High Bridge and Franklin Township school boards for more openness. Mr. Paff said he came across the Readington documents during a routine investigation into civil cases involving a government agency, which he posts on his blog. Mr. Paff said he thought people might be interested in the payouts because that's information municipalities don't like to advertise.

According to one of the agreements, Readington's insurer paid $200,000 to township residents Christopher Strobel and Valerie Luckstone in January 2008. Mr. Strobel had sued the township and several of its police officers four years earlier, alleging "intentional beating, verbal abuse and threats" during a March 2002 incident.

A second police abuse suit was settled by paying $45,000 to resident Thomas Wachendorf in January 2007. He said township police exercised "unlawful use of force" in arresting him in May 2004. Although the agreement contained a confidentiality clause, it's still subject to the state's Open Public Records Act, a law that ensures a citizen's access to government records.

"I do not think you can draw a straight-line comparison between the merits of the case and the dollar amount," Mayor Julia Allen said of the settlements. She added that such claims are handled in a routine fashion by the township's insurance company. "In the majority of cases, the settlement has nothing to do with the merits of the case -- it's strictly a financial decision made by the insurance company."

The township paid a $5,000 deductible for the Strobel settlement, and there was no deductible for the Wachendorf settlement, according to Township Administrator Vita Mekovetz.

Readington is part of a joint insurance fund, and the settlements didn't seem to have a significant effect on the township's rates, she said.

Police Chief James Paganessi declined comment on the settlements but previously called the suits "baseless."

Christopher Strobel's lawsuit stemmed from an incident when Mr. Strobel was stopped by then-Patrolman Joseph Greco (since made sergeant) while he was walking home on the shoulder of Route 22. According to his complaint, he began telling the officer "about the recent death of his infant daughter" when Cpl. Scott Crater (now lieutenant) and Sgt. Sebastian Donaruma (now lieutenant) arrived. The suit says Mr. Strobel turned to leave because Sgt. Greco had returned his driver's license, and then-Cpl. Crater grabbed him and "threw him face first into one of the police cars."

Mr. Strobel claimed that then-Cpl. Crater, with the help of the two other police officers, again "slammed (his face) into the rear window of the patrol car with sufficient force to shatter it and send Strobel's shoulder through the broken window."

After that, he alleged, the men punched him several times and he fell to the ground. He said he told then-Sgt. Donaruma that the officer was hurting his arm and in return "was kicked in the head and his face was ground into the pavement by the officer's boot." Mr. Strobel claimed that later then-Patrolman Greco told him: "You have no rights here; this is our town and don't you forget it."

The suit contends that Sgt. John Insabella later went to Mr. Strobel's home and coerced his wife, Valerie Luckstone, into signing a false domestic violence complaint against her husband. According to the court papers, she was told to sign "if she wanted her husband released from jail." The couple said they continued to be harassed by township police after the incident.

Charges of obstruction of justice and resisting arrest against Mr. Strobel were dismissed by Lambertville Municipal Court Judge Richard Cushing because the police affidavit failed to show probable cause.

In the other suit settled by Readington, Mr. Wachendorf accused then-Cpl. Crater and then-Cpl. Christopher DeWire (now sergeant) of assaulting him after a traffic stop in his Holland Brook Road driveway. He said they followed him into his driveway and exited their patrol cars "with their handguns partially drawn." Mr. Wachendorf alleges that they ordered him out of his car and, seconds later, pulled him out then "threw him onto the gravel driveway at the edge of the brick patio, and slapped a handcuff onto (his) left wrist." He said his wrist was broken and the fall made him strike his head, breaking his glasses and causing him to lose consciousness.

According to the police department, officers tried to stop Mr. Wachendorf because he was driving an unregistered vehicle, and followed him for 2 miles before he turned into his driveway. In this case, a police video of the stop showed Mr. Wachendorf and the officers tussling. He was charged with resisting arrest, obstruction of justice and eluding police. Mr. Wachendorf entered and completed a pre-trial intervention program, and charges against him were later dropped.

Meanwhile, the incident cost him his teaching job at Mountainview state prison. A tenured teacher who helped inmates prepare for General Educational Development (GED) tests, he was fired for "conduct unbecoming a public employee." Mr. Wachendorf's appeal made it to the Superior Court Appellate Division, where the judges agreed with the administrative law judge's decision that evidence against him, including the police video, supported the charges. That judge also found Mr. Wachendorf's testimony to be inconsistent and not believable.

In both settlements, the agreements state that payments aren't an admission of wrongdoing. But Mr. Paff thinks this kind of information is valuable because it enables local governing bodies to look for patterns in lawsuits.

A third lawsuit alleging township police abuse was dismissed in December 2006.

Originally distributed on January 12, 2009

$1,000 Knowing and Willful OPRA fine levied

On January 12, 2009, the Asbury Park Press ran a story (see below) about a former Oceanport councilman being fined $1,000 for a knowing and willful violation of the Open Public Records Act.

I have obtained the Judge's written decision and have put it on-line here.

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Former councilman fined $1,000 for violating public-records law

By Carol Gorga Williams • COASTAL MONMOUTH BUREAU • January 12, 2009

OCEANPORT — A state administrative law judge has fined a former borough councilman $1,000 for failing to provide public records to Borough Clerk Kimberly Jungfer so she could provide them to people seeking the information.

"I find that Councilman Hugh Sharkey has knowingly and willfully violated (the state's Open Public Records Act) and unreasonably denied access under the totality of circumstances,'' wrote Judge Joseph F. Martone in a case dating back to 2006 that he ruled on last month.

The judge continued that there is sufficient evidence to conclude "that the conduct and actions of Councilman Hugh Sharkey were intentional and deliberate, with knowledge of their wrongfulness and not merely negligent.''

Martone sent his decision to the state's Government Records Council Dec. 17. The council may adopt, modify or reject Martone's decision. If, after 45 days, the council does not take any action to alter Martone's findings, they would become final.

Sharkey, who lost the Republican Party's backing for re-election in 2007, had appeared before Martone and the state's Government Records Council considering a complaint lodged in 2006 by former borough resident Allan M. Johnson, husband of former Councilwoman Linda Johnson.

Originally distributed on January 13, 2009

Bergen Judge defines Attorney's and Clerk's role under OPRA

In an unpublished trial court decision released today, Bergen County Superior Court Assignment Judge Peter E. Doyne denied Paramus Borough's lawsuit seeking a declaration that the Borough Attorney must review all non-routine OPRA requests submitted to the Borough Clerk.

The decision is here.

Originally distributed on January 13, 2009

How many members make a borough council "meeting" under the OPMA?

According to statute, a borough's municipal governing body consist of an elected mayor plus six elected council members, for a total of seven. N.J.S.A. 40A:60-2. A quorum consists either of four members of council or the mayor plus three members of council. N.J.S.A. 40A:60-3(d).

I'm trying to understand exactly how many members of a borough municipal governing body can meet together to discuss public business without having to announce a formal "meeting" in accordance with the Open Public Meetings Act (OPMA). I'm finding that this is not a straightforward question.

N.J.S.A. 10:4-8(b) defines the term "meeting" as follows:

"Meeting" means and includes any gathering whether corporeal or by means of communication equipment, which is attended by, or open to, all of the members of a public body, held with the intent, on the part of the members of the body present, to discuss or act as a unit upon the specific public business of that body. Meeting does not mean or include any such gathering (1) attended by less than an effective majority of the members of a public body, or (2) attended by or open to all the members of three or more similar public bodies at a convention or similar gathering.

According to Riya Finnegan, LLC v. Township Council of South Brunswick, 386 N.J.Super. 255, 260-61 (Law. Div. 2006), three members of a nine-member planning board constitute an "effective majority" because a) a quorum of the nine-member board is five members and b) a majority of five is three. Thus, three members of a nine member board apparently cannot gather together without calling a formal, public OPMA "meeting."

Applying Finnegan's logic to a borough council, a gathering of three council members is an "effective majority" because three is a majority of a quorum of four. But, John Hipp, Mayor of Rutherford, has expressed an interesting and novel theory that takes this logic a step further.

Mayor Hipp points out that a borough mayor's voting power is specifically limited by N.J.S.A. 40A:60-5(c) which states that "the mayor shall preside at meetings of the council and may vote to break a tie." Apparently, then, a borough mayor is not allowed to vote unless the council vote is tied.

Mayor Hipp theorizes that if the mayor and three council members (i.e. a quorum that can legally transact business) are at a meeting and a motion is passed by the three council members by a vote of 2 to 1, then the mayor cannot legally vote because that vote would not "break a tie." Thus, Mayor Hipp reasons, two members of the borough council constitute an "effective majority."

If this argument is logically sound, it follows that two members of a borough council cannot meet together to discuss municipal business without giving public notice of the meeting, taking minutes and otherwise abiding by the OPMA.

I'm not sure what to think about this.

Suppose that a borough council's administrative code established a committee of two or three council members but specifically held that the committee's meetings were not open to the council members who were not committee members. It could be argued that the committee meetings are not OPMA "meetings" because the first sentence of N.J.S.A. 10:4-8(b) requires a "meeting" to be "open to" all the members of a public body.

But if this is the case, then the administrative code could likewise establish a committee of five or six council members--more than a quorum--and that a meeting of these five or six members, sitting as a committee, wouldn't be a "meeting" as defined by N.J.S.A. 10:4-8(b).

N.J.S.A. 10:4-11 appears to be intended to prevent such a result. That statute says that "no person or public body shall fail to invite a portion of its members to a meeting for the purpose of circumventing the provisions of this act." So, if a borough council established a committee of five or six members and took the position that committee meetings could be held without the public present, it would seem that a court would, or at least should, find that the committee meetings were OPMA "meetings." Otherwise, a council could shut out the public by deliberating all of its business in private, unadvertised meetings of committees that contain all but one member of the council.

The only way I can make sense of this is if OPMA, implicitly, prevents a borough council from disallowing council members who are not members of a committee from attending the committee's meetings. In other words, implicit in OPMA must be a requirement that every council committee meeting and subcommittee meeting must be "open to" all council members thus making each committee meeting and subcommittee meeting an OPMA "meeting" provided that it is attended by an "effective majority" of the council.

If this (i.e. that a council cannot, through its administrative code, establish a committee that can hold meetings that one or more members of the council are not allowed to attend) is true, then Mayor Hipp is correct that no two members of a borough council can meet together, as a committee or not, to discuss public business without formally giving the public formal notice of the meeting and otherwise abiding by the OPMA. It would follow that no two members of a borough council could speak to each other on the telephone or email each other about borough business because that would also be a "meeting" held "by means of communication equipment."

I'd would appreciate hearing anyone's comments on this question.

Originally distributed on January 15, 2009

The OPRA request form works both ways

I am getting a bit frustrated with records custodians who, on one hand, won't honor records requests that are not on their "official" request forms, but then do not use the forms themselves to reply to a request.

Here is my note today to Teaneck Township Clerk Lissette Aportela-Hernandez. Teaneck's OPRA request form here.

In your January 5, 2009 email to me, you insisted that I complete the Township’s official OPRA Request form. In that email, you stated: “Under the ruling of the GRC, you are required to fill out the attached form. I cannot process your request until I have received a completed Request for Access to Government Records form. Please complete the form and you may fax it to 201-837-9547 and it will be processed accordingly.” Yet, you did not use your form when you responded to my request. Rather, you responded by way of two letters, dated January 12, 2009 and January 15, 2009, both on Township letterhead.

N.J.S.A. 47:1A-5(f) requires you to adopt a form that provides, among other things, a "space for the custodian to indicate which record will be made available" and a "space for the custodian to list reasons if a request is denied in whole or in part." N.J.S.A. 47:1A-5(g) specifically requires you to "sign and date the form and provide the requestor with a copy thereof." The third page of your form includes, consistent with these statutes, spaces for you to list the reasons why any records were not disclosed and for you to sign and date the form.

My question is this: While you are within your rights to insist that requestors complete your agency's specific request form, what justifies you NOT using the form, as required by statute, to reply to records requests? I look forward to hearing from you.

Originally distributed on January 16, 2009

Keyport OPMA/OPRA suit in today's paper

The following article appeared in today's Asbury Park Press.

Judge Lawson's opinion, along with the trial briefs, exhibits and other case documents are on-line here. (file is about 2.5 MB).

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Judge rules in favor of citizen's OPRA request
By Jim McConville • KEYPORT BUREAU • January 17, 2009

KEYPORT — A state Superior Court judge has ruled that the Borough Council did not correctly adhere to certain guidelines of the New Jersey Open Public Records Act.

Superior Court Judge Lawrence M. Lawson has ruled in the favor of the plaintiff John Paff, 51, of Franklin Township, in his lawsuit filed July 2007 against the Keyport Borough Council.

Paff contended that the town's public body had violated the state Open Public Records Act by not providing him with meeting minutes in a timely manner.

In his ruling issued Dec. 8, Lawson ruled favorably on three of Paff's five points, disagreed with one, and threw out another one of the challenges as being filed too late.

Paff also had argued that the council violated the Open Public Meetings Act by discussing possible ordinances privately, using the "potential litigation" exemption in the law to hold closed sessions.

Lawson heard arguments on Aug. 12, 2008, on the lawsuit that Paff filed in July 2007, regarding the minutes for council meetings of March 6, 2007, and April 21, 2007, and the closed sessions of April 10 and 24, 2007, meetings.

Paff contends that Keyport public officials are subverting the state's OPRA by failing to provide him with minutes of the two council meetings of March and April 2007.

Paff said he filed his request for the meeting minutes on June 21 of last year. He said he received a response from the borough June 29 indicating the minutes weren't yet available, he said, but a copy eventually was made available on July 21.

Lawson agreed with Paff that Keyport failed to fulfill his request for the Borough Council's closed and public meeting minutes within 30 days after the meeting, or prior to the next scheduled meeting.

Lawson also ruled favorably to Paff's claim that a plaintiff's right to know the identities of specific borough employees discussed during closed session outweighs the borough's need for confidentiality.

"Whether or not the Borough Council is allowed to redact from its closed meeting minutes the name of borough officials who were subjected to discipline, Judge Lawson ruled in my favor," Paff said. "He ruled that under OPRA, I am entitled to the names of the specific officers and employees who are disciplined."

Although Mayor Robert Bergen said he has not yet read Judge Lawson's full court decision, he said that Paff's OPRA suit was "largely unreasonable" and that Keyport tried to oblige his meeting minutes request.

"We felt that we were more than willing to comply with the law," Bergen said. "We did everything we could to get him the minutes in a reasonable time period."

Lawson did rule against Paff, saying that it is legal under the Open Public Meetings Act for the council to privately discuss borough ordinances under the "potential litigation" exception, as well as general employment and staffing matters under the "matters of personnel" exception.

Lawson threw out Paff's claim that Keyport had failed to provide him with a justifiable reason for denying his request for Borough Council e-mails, ruling that Paff's request was not filed within the 45 day deadline.

Finally, Lawson ruled that Paff as the prevailing party is entitled to recover his court costs from Keyport.

Originally distributed on January 17, 2009

Do Borough subcommittee meetings comply with the "Sunshine" Act?

I wrote today to High Bridge Borough (Hunterdon County) Mayor Mark Desire and the members of the Borough Council asking two questions about how meetings of the Council's three-member committees (e.g. the Planning & Engineering Committee) are held in a manner consistent with the Open Public Meetings Act.

My letter is on-line here.

Originally distributed on January 19, 2009

State v. Federal Court dockets and records

As I've stated in previous postings, I use OPRA to determine how much money is paid by government entities to settle civil suits filed against them. I have put the results of some of the settlements I have found here.

I became aware of nearly all of these settlement agreements through using the PACER system which gives the public a reasonably inexpensive and straightforward way to learn about cases filed in the Federal District Court. Unfortunately, no similar system is in place for the New Jersey Superior Court system, making it much more difficult or expensive to find out about lawsuits filed in state court.

Today, I wrote a letter and submitted a records request to Eugene Farkas, Trial Court Administrator for the Judiciary in Somerset, Hunterdon and Warren Counties. For those who are interested in this topic, the letter is on-line here.

Originally distributed on January 19, 2009

Township to charge 7c per copy

Andover Township's willingness to lower its per-page record cost from 75c to 7c might help convince other local public bodies do the same. Please consider sending the following article to your local mayor and/or school board.

New Jersey Herald - Newton, New Jersey

January 27, 2009

Andover to cut cost of public records

By SETH AUGENSTEIN

ANDOVER TWP. -- Andover Township is expected to be the latest municipality to make its government records more financially accessible to the public.

The Township Committee unanimously introduced an ordinance Monday night significantly lowering costs of all paper documents and audio recordings of meetings.

Paper copies will cost 7 cents per page, and CD audio recordings of meetings will cost 40 cents each, if the ordinance is approved.

Andover is on a wave of change for many towns that are changing their Open Public Records Act fees as a response to statewide but locally based activism. Cities and towns across New Jersey treat costs prescribed through the OPRA differently. Many do adhere to the maximum cost of paper copies outlined in the law -- 75 cents for the first 10 pages copied, 50 cents for pages 11 through 20, and 25 cents for all pages afterward. Audio recordings, including CD and tape copies of municipal meetings, are supposed to adhere to "actual cost" of the material on which the recordings are copied -- such as a blank CD or tape -- but towns may impose service charges above and beyond that actual cost.

Andover currently charges the state maximum for paper copies, and had charged actual cost for CD audio recordings at $2.40. The change is being brought about at least partly after noted open government advocate Martin O'Shea, of Stockholm, addressed the fee schedule in several rounds of correspondence with various township officials. Sparta resident Jesse Wolosky had also contacted the township about its CD costs.

Several Sussex County towns are also currently considering changing their OPRA fees, according to several municipal clerks.

"These issues are under great scrutiny these days," said Andover Township Mayor Bob Smith.

Andover Township also added another layer of transparency to its meetings, by explaining the individual topics of their executive session to the public Monday evening. A general rundown of those privileged topics, which often involve personnel issues or litigation, is a goal of many open government advocates such as O'Shea and John Paff, who chairs the New Jersey Libertarian Party's Open Government Advocacy Project.

Originally distributed on January 27, 2009

Seminar on e-mail retention for municipalities

On February 24, 2009 (in Holmdel) and February 26, 2009 (in Mount Laurel) an organization that is apparently affiliated with the New Jersey League of Municipalities will be holding a seminar entitled "Managing Government E-Mail Risks: OPRA, E-Discovery, and Retention ­ and Developing Solutions." The half-day seminar costs $75 for League members and $150 for non-members.

The seminar is described in detail and a registration form is available here.

Readers who live in municipalities where there is confusion over e-mail management requirements (e.g. municipalities where the elected officials use their personal e-mail accounts for official correspondence) should encourage their municipal officials to attend.

I'd like to communicate with anyone who attends the seminar. I would be interested in obtaining copies of some the seminar material and handouts, particularly any model policy on managing email.

Originally distributed on January 27, 2009

How do I report the Mayor for doing something unethical?

I am often asked how, exactly, one goes about reporting a municipal official to the proper authorities when that official has done something unethical. The object of this article is the explain the process the best that I can.

FIRST STEP: DETERMINE THE APPROPRIATE ENFORCEMENT AGENCY

For the vast majority municipalities, the enforcement agency is the Local Finance Board within the New Jersey Department of Community Affairs.in Trenton. But, some counties and municipalities have adopted their own ethics codes and established their own ethics boards. A listing of these counties and towns is on-line here.

So, if you want to file a complaint against an official, you should first check the above link to determine whether or not you should file locally or with the Local Finance Board in Trenton. (Note: Several counties have their own ethics codes and boards. Those codes and boards cover only county officials, not municipal officials within those counties. For example, if you wanted to file a a complaint against an official in Lawnside Borough, which is in Camden County, you would file your complaint with the state's Local Finance Board because Lawnside does not have a municipal ethics code or board.)

If the municipality the allegedly unethical official serves is NOT on the list at the above link, your complaint will be handled by the Local Finance Board.

If the municipality the allegedly unethical official serves IS on the list at the above link, you will have to consult the municipality's ordinances to learn the procedure. Some listed municipalities, such as Hillsborough Township in Somerset County, have their ethics ordinances on-line. (See, Chapter 49 of of the Township's code here. Some towns, unfortunately, do not have their municipal code books on-line and their web sites do not reference their ethics boards or code. In such a case, you will have to contact the municipal clerk for more information or perhaps submit an OPRA request.

SECOND STEP: DETERMINE WHETHER THE OFFICIAL'S CONDUCT VIOLATED THE CODE


The word "unethical" is sometimes used carelessly. Before filing a complaint, make sure that you can allege facts which, if proven, will constitute a violation of the ethics code that governs the official.

If the official that you wish to complain against serves a county or municipality that is NOT on the list mentioned above, he or she is bound to follow the code set forth in the Local Government Ethics Law, N.J.S.A. 40A:9-22.5. I have put that code on-line here.

If the official serves a county or municipality that is on the list above, then you'll have to get a copy of that county's or municipality's code to determine if a violation occurred. But, you may want to refer to the Local Government Ethics Law as a guide because county and municipal ethics codes must "either identical to the provisions set forth in [Local Government Ethics Law] or more restrictive, but shall not be less restrictive." (N.J.S.A. 40A:9-22.15 and 40A:9-22.21). So, if your official violated the Local Government Ethics Law he or she necessarily must have also violated the local or county ethics law.

THIRD STEP: WRITE UP THE COMPLAINT.


If you believe that the official violated the relevant ethics code, then all that's left to do is write up the complaint and file it.

Each municipal and county ethics board has its own procedures for filing--you'll have to check the local code. But, if the official serves a municipality or county that doesn't have an ethics board, then the complaint can be submitted as a letter addressed to: Local Finance Board, P.O. Box 803, Trenton, NJ 08625-0803.

Complaints to the Local Finance Board MUST contain the following elements in order to be accepted:

1. State the point of the Local Government Ethics Law alleged to be violated;

2. State the name(s) and title(s) of the parties involved in the action and against whom the complaint is filed;

3. Set forth in detail the pertinent facts surrounding the alleged violative action;

4. Indicate whether the complaint concerns the complainant in any way and what, if any, relationship the complainant has to the subject of the complaint; and

5. Indicate any other action previously taken in an attempt to resolve the issue and indicate whether the issue is the subject of pending litigation elsewhere.

I have put the rule that governs complaints here.

I have also put a PDF and Microsoft Word file of a sample complaint here (PDF) and here (MSWord).

Originally distributed January 29, 2009