Saturday, May 30, 2009

Edison Township seeks to prevent "inflammatory" remarks at meetings, etc.

The New Jersey Libertarian Party's Open Government Advocacy Project has commented on and made suggestions regarding the Edison Township (Middlesex County) Council's proposal to change its Administrative Code, which is up for a Council vote on January 14th. This is the code that governs the conduct at Council meetings and regulates public participation at those meetings.

Among the items questioned is a provision barring the public from making whatever the Council President determines to be "defamatory, insulting or inflammatory remarks" at meetings. I also asked for a precise definition of an "effective majority" of the Council.

The letter to the Council and the full text of the proposal is here. The full text of the existing Code is on-line here.

John Paff
Somerset, New Jersey

Wednesday, May 27, 2009

Actual cost v. OPRA's 75 cent/50 cent/25 cent fee schedule

In an unpublished trial court decision released on May 21st, Mercer County Assignment Judge Linda Feinberg rejected the Mercer County Clerk's argument that the "actual cost" of making a copy is relevant only when the governmental entity elects to charge more than the fixed OPRA rates.

Rather, Feinberg held that language in OPRA Section 5(b) is clear and unambiguous and susceptible to only one interpretation"--which is:

"[T]he clear intent of the Legislature [was] to limit copying charges to the actual cost of duplication under OPRA. Indeed, the fees prescribed by [OPRA's 75c/50c/25c] fee schedule do not permit an entity to charge the maximum fees without calculating the actual cost. An entity remains responsible for calculating the actual cost at all times. The sole function of the fee schedule is to provide the maximum permissible amounts with respect to actual cost, unless an agency can demonstrate that the actual cost exceeds such rates."


Feinberg's decision is contrary to that of two other Superior Court Judges: a) Stephen B. Rubin, J.S.C. in Gench v. Hunterdon County Clerk’s Office, No. HNT-L-307-07 (N.J. Super. Ct. Law Div. 2008), and b) Edward v. Gannon, J.S.C. in O’Shea v. Sussex County Clerk’s Office, No. L-655-06 (N.J. Super. Ct. Law Div. 2008)

Feinberg's opinion is here.

John Paff
Somerset, New Jersey

Thursday, May 21, 2009

Custodians must accept written OPRA requests not submitted on official form

In a published decision released today, the Appellate Division ruled that while a custodian's official OPRA request form "should": be used, no written request for information "should be rejected" if the official form is not used. The decision is on-line here. (Renna v. County of Union, Appellate Docket No. A-0821-07T2)

The ruling resolves a long-standing problem that is set forth in detail in my blog entry here.

John Paff
Somerset, New Jersey

Custodians can choose transmission methods for OPRA requests

UPDATE 10/21/09:  The Supreme Court declined to hear my appeal of the Appellate Division's decision.

In a published decision released today, the Appellate Division held that Section 5(g) of OPRA, which states:

"[a] request for access to a government record shall be in writing and hand-delivered, mailed, transmitted electronically, or otherwise conveyed to the appropriate custodian,"

does NOT require a records custodian to accept requests transmitted by every method mentioned in the statute. Rather, custodians may adopt policies that specify which of the transmission methods are acceptable. Thus, a custodian can adopt a policy saying "I accept OPRA requests only by fax" or "I accept OPRA requests only when they are mailed to me."

The court went on to say that a custodian's transmission policy must be "reasonable" and not "impose an unreasonable obstacle to the transmission of a request for a governmental record, such as, for example, by requiring any OPRA request to be hand delivered."

The decision, which was authored by Judge Stephen Skillman, is online here. (Paff v. City of East Orange, Appellate Docket No. A-4280-07T2)

I think that it's probable that custodians, after reading this decision, will adopt policies that specify regular mail and personal delivery as being the only acceptable methods of submitting OPRA requests. This will add at least one business day--and perhaps more--to the time that a requestor needs to wait in order to have the request fulfilled.

Also, fax transmissions provide the requestor with confirmation showing the date and time that the transmission was received. Using mail will leave the requestor wondering whether and when the request was received by the custodian, unless the requestor is willing to spend substantially more for certified mail service or proof of delivery. Thus it will be more difficult for requestors who mail their requests to judge when OPRA's seven business day response period expires.

Finally, requestors who wish to submit requests to custodians who do not post their OPRA request forms or transmission policies on the Internet will have difficulty knowing which transmission methods are acceptable. For example, if they fax a request without first telephoning the custodian's office to learn its transmission policies, they take the risk of finding out several days later that the custodian has adopted a policy requiring requests to be mailed.

More troublesome will be those custodians who do not consider themselves obligated to inform a requestor that his or her request is being rejected for having been submitted by way of a disallowed transmission method. Those requestors will not know whether to interpret the custodian's non-response as being a denial of the request or a rejection of the request because of the requestor's failure to adhere to an unannounced transmission policies.

John Paff
Somerset, New Jersey

Saturday, May 16, 2009

Financial Disclosure Statement filing in your municipality

Several people have inquired as to exactly how they can find out a) which officials in their municipal government are required to file Financial Disclosure Statements, and b) whether each of those officials did in fact file.

To make it easy, I've drafted a supplement that can be downloaded and attached to any municipality's OPRA request form. The supplement can be downloaded here.

Financial Disclosure Statements need to be filed on or before April 30th of each year. Since April 30, 2009 is just a few weeks ago, I think that it's better to request information on the filings that were due on April 30, 2008.

John Paff
Somerset, New Jersey

P.S. The "Local Government Officer Roster" lists those officials who, in the municipality's opinion, are required to file a Financial Disclosure Statement. The absence of a position from the Roster does not necessarily mean that that holder of that position is not required to file and the inclusion of a position on the Roster does not necessarily mean that the holder of that position is required to file.

Friday, May 15, 2009

Penns Grove Councilwoman finally discloses 2007 finances

On March 18, 2008, I complained to the Local Finance Board (LFB) that several members of the Penns Grove Borough (Salem County) Council failed to file the Financial Disclosure Statements that were due on or before April 30, 2007. Earlier this year, I reported that all but one of the Council members--Councilwoman Carol Mincey--had belatedly filed their statements.

In a May 2, 2009 letter, Susan Jacobucci, Chair of the LFB, confirmed that Mincey finally her 2007 statement. Actually, Mincey filed the completed 2007 form on February 23, 2009, but it took the Local Finance Board until May 2, 2009 to inform me of the filing. My complaint against Mincey was dismissed because it no longer had a reasonable factual basis.

The correspondence, beginning with my March 18, 2008 complaint to the LFB, is on-line here. It indicates that Mincey did file a an incomplete form and then filed a completed form after receiving a stern warning from the LFB.

I think that this correspondence illustrates that municipal officials--at least those who serve municipalities that do not have their own municipal ethics boards--have little or no exposure to consequences if they choose to simply ignore the filing requirements. In the unlikely event that someone complains, the officials will be given approximately a year to comply, and even if they don't complete the form correctly the first time, they will be given at least one more opportunity to resubmit a completed form.

John Paff
Somerset, New Jersey

Thursday, May 14, 2009

Council and Board to minimally staff budget review committee

On May 12, 2009, I wrote a letter to the Spring Lake Heights (Monmouth County) Borough Council and Board of Education advising them that having a joint Board/Council committee privately hash out adjustments to the defeated school budget a) violated the spirit of the Open Public Meetings Act and b) violated the letter of the Act if an "effective majority" of either body were to attend the private committee meetings.

I was hopeful that the two public bodies would decide to open its joint committee meeting to the public so that these important deliberations could be observed by the taxpayers.

Instead, I received letters from the attorneys for both the Board and Council telling me that each body will send only one representative to the joint committee meeting, which will be held tonight. Since one member is less than an "effective majority" both attorneys informed me that "it is not necessary to address any of the legal arguments contained in your letter." My letter and the two attorney responses are on-line here.

John Paff
Somerset, New Jersey

Wednesday, May 13, 2009

Disclosure of Executive Session minutes dealing with "personnel" matters.

One area of the Sen. Byron M. Baer Open Public Meetings Act (OPMA) that is often misunderstood by government officials is the "personnel" exception to public meetings embodied within N.J.S.A. 10:4-12(b)(8). This exception allows government bodies to privately discuss matters involving a particular employee. The exception does not, however, excuse the public body from a) taking "reasonably comprehensible" minutes of those private discussions and b) making those minutes "promptly available to the public" unless some overriding privacy interest dictates otherwise.

In order to illustrate the issues, I've uploaded four pages here. This file contains a) two redacted pages from Keyport Borough's (Monmouth County) executive session minutes from 2006 and b) the same two pages that were produced by Keyport after Judge Lawrence M. Lawson decided my lawsuit against the Borough.

Keyport's Clerk or Borough Attorney, like many in New Jersey, were operating under the assumption that the names of any employees discussed during closed session could, as a matter of course, be redacted from the closed session minutes.

But, as I argued in my lawsuit, the New Jersey Supreme Court has held (see South Jersey Publishing Co. v. New Jersey Expressway Authority, 124 N.J. 478 (1991)) that unlike the other exceptions to open public meetings, the purpose of the "personnel exception" is to allow public officials to let their hair down and freely discuss issues such as hiring, firing, and disciplining public employees. The Legislature felt that members of a public body would be inhibited from speaking plainly and frankly about an employee's shortcomings if the employee or his or her friends and family were in the audience observing the conversation.

But, just because the law permits personnel matters to be discussed and debated in closed session doesn't mean that the public isn't entitled to know, by reading the minutes, any official decision made or action taken by a public body along with sufficient facts and information to permit the public to understand and appraise the reasonableness of the public body's decision or action. In sum, since the public is theoretically in charge of the whole governmental process, it's important that closed session minutes reveal enough information about what a pubic body decided regarding a personnel matter and why it decided as it did.

But, there's an exception to this rule. Sometimes a public body's discussion of a personnel matter involve facts that are intensely personal and private. For example, suppose a town council discusses an employee's request for an extended leave of absence so that she can tend to a family member who attempted suicide through a drug overdose. In such a case, the court has held that when a privacy interest would be violated by full disclosure in the minutes, the minutes may be appropriately redacted provided the public interest in know what the government is doing and why is not subverted. But absent special privacy concerns, the public--at the very least--is allowed to know the names of the employees under discussion during a closed session.

For example, Keyport's September 19, 2006 minutes, in the version issued after the lawsuit, inform citizens that Keyport's Police Chief recommended that Police Sergeant Anthony Gallo be suspended and that after the Borough Council reviewed the facts, it agreed to support the Chief's decision. In the earlier version of those minutes, Sergeant Gallo's name was redacted.

By checking newspaper databases and Gannett's Data Universe, a member of the public can see that Gallo was promoted to lieutenant (see Asbury Park Press, January 15, 2008) and made $100,868 in 2008. This raises a legitimate question as to why he was promoted so soon after he was recommended for suspension.

While the decision to promote may have been good or bad, without having been informed that it was Sergeant Gallo who was being privately discussed on September 19, 2006, the public had no way of even questioning the promotion decision.

Since the government is composed of and acts through its officials and employees, citizens need to know--absent exceptional reasons--which of those officials and employees are being disciplined and why. Otherwise, citizens cannot fulfill their role of keeping a watchful eye on government.

John Paff
Somerset, New Jersey

Tuesday, May 12, 2009

Councilmember audio-recording executive sessions

UPDATE 12/20/11: A school board member was cleared of ethics charges for audiotaping an executive session. For more information, click here.

From time to time I receive correspondence from members of municipal councils, school boards or other public bodies explaining that they are in the political minority and that the majority does not obey the Senator Byron M. Baer Open Public Meetings Act and routinely discussed impermissible topics during closed session.

My suggestion--for individuals not afraid to push the envelope--is to write something along the lines of the following letter to the chairmen of their public bodies. So far, I have not been informed of any public body member having actually done this, but would look forward to learning the experience of anyone who does send in the suggested letter.

John Paff
Somerset, New Jersey

Dear Mayor and fellow members of the Borough Council:

I would like to inform you of my intention, beginning at the Council meeting of [insert upcoming meeting date--perhaps two months away], to make it my practice to audiotape the Council's nonpublic sessions.

Among my purposes for making these recordings: a) to create a personal archive of the Council's non-public discussions so that I can refresh my recollection on what was said during those discussions in the future, and b) to retain evidence to counter any Open Public Meetings Act violations that may be brought against me in the future by the County Prosecutor or Attorney General in accordance with N.J.S.A. 10:4-17. Moreover, I feel that the existence of these recordings will help assure the public that the Council's nonpublic discussion is restricted to only those topics permitted by N.J.S.A. 10:4-12(b).

If anyone has an objection based on the possibility that the tapes may fall into the wrong hands, I will agree to leave the recordings with the Clerk where they can be retained under lock and key. If I (or any other member of Council wants to review the tapes, I will visit the Clerk's office.

You will note that I do not intend to begin recording closed meetings until the above mentioned date. This is to allow the Council an opportunity to discuss the legal ramifications of my plan (e.g. will the tapes fall within the Open Public Record Act's definition of "government record" (N.J.S.A. 47:1A-1.1)?) and to give anyone who opposes my plan an opportunity to state his or her reasons or to seek legal advice.

If more time is needed to resolve the questions my intention raises, I will be happy to delay implementing my plan for a reasonable period. Absent a timely objection, however, I will begin audiotaping the meetings beginning on the above-mentioned date without further notice.

Thank you. etc.

cc. Borough Attorney

OPMA's "safe harbor" provision

From time to time I receive correspondence from members of municipal councils, school boards or other public bodies explaining that they are in the political minority and that the majority does not obey the Senator Byron M. Baer Open Public Meetings Act

N.J.S.A. 10:4-17 (part of the Senator Byron M. Baer Open Public Meetings Act) contains a provision that I refer to as the "safe harbor provision." The statute reads

Penalty enforcement. Any person who knowingly violates any of the foregoing sections of this act shall be fined $100.00 for the first offense and no less than $100.00 nor more than $500.00 for any subsequent offense, recoverable by the State by a summary proceeding under "the penalty enforcement law" (N.J.S.2A:58-1 et seq.). The Superior Court shall have jurisdiction to enforce said penalty upon complaint of the Attorney General or the county prosecutor. Whenever a member of a public body believes that a meeting of such body is being held in violation of the provisions of this act, he shall immediately state this at the meeting together with specific reasons for his belief which shall be recorded in the minutes of that meeting. Whenever such a member's objections to the holding of such meeting are overruled by the majority of those present, such a member may continue to participate at such meeting without penalty provided he has complied with the duties imposed upon him by this section.

The "safe harbor" provision consists of the final two sentences of the above provision. Here is how it might be useful.

Suppose that a member of the body senses a violation of the OPMA, such as the body discussing a topic in closed or executive session that either is not allowed by statute or not within the resolution that authorized the private session. That members could announce:

"Madam Mayor - I believe that the subject that we're presently discussing is improper for this executive session. Specifically, I believe that [details]. Accordingly, I wish to invoke my rights under N.J.S.A. 10:4-17 by objecting. I ask, Madam Mayor, that you instruct the Clerk to record my objection in this meeting's minutes and poll the rest of the council to determine whether it sustains or overrules my objection. I also ask that you inform my colleagues that if they overrule my objection and continue with this discussion of the present topic, they may be subject to monetary penalties if the County Prosecutor or the Attorney General later agrees with my objection."

Admittedly, stating the above would have a much more dramatic effect if the county prosecutors or Attorney General actually imposed monetary penalties. Since the penalties are rarely if ever enforced it is not likely to have much impact on sophisticated members of public bodies. It may, however, cause novice members (or those experienced members who have a principled interest in open government) to ask the body's attorney to opine on whether the topic under discussion can lawfully continue in private.

In any event, it will build a record (i.e the recordings in the private meeting minutes) of the member's objections.

John Paff
Somerset, New Jersey

Angry Borough Clerk: Paff is "an overzealous gadfly with nothing better to do."

It's always fun making new friends in municipal government.

John Paff
Somerset, New Jersey

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

Milltown taken to task on financial disclosures
Libertarian Party member reminds town of state's reporting regulations
Tuesday, May 12, 2009
BY RYAN HUTCHINS
For the Star-Ledger

An advocate of open government says 19 Milltown officials -- including an ethics board member -- haven't followed financial disclosure regulations.

It's an all-too-common issue in municipalities around the state, said John Paff, who as chairman of the Libertarian Party's Open Government Advocacy Project filed the complaint.

"I'm trying to jump-start them into doing their jobs," Paff said.

In Milltown, one of the first municipalities Paff has approached about the issue, he said members of various panels, such as the zoning and planning boards, did not file disclosures for 2008 by April 20 -- nearly a year after the documents were due.

Since the complaint, three or four officials have filed 2008 disclosures, according to Milltown Clerk Michael Januszka.

Paff said the filings are intended to make the public aware of conflicts of interest that might prevent officers from being objective, such as if a spouse of a zoning board member works for a company with business before the board. If the officer had a financial disclosure on file, residents would be aware of any possible conflict.

In his letter to Milltown, Paff suggested that a member of the ethics board be in charge of sending reminders when disclosures are due. It's what Mount Olive has done to achieve 100 percent compliance, he said.

Ethics Board Chairman Edward Winant responded to Paff's letter by e-mailing Januszka, asking the clerk to encourage filings by letting officers know disclosure is a requirement "to serve on their respective committee, board, or commission, and because of municipal ordinance and state law, failure to file ... will result in their dismissal from their particular committee, board, or commission."

Januszka said he didn't receive the disclosure forms from the state in time to do that this year, but that he'll send a reminder to anyone who hasn't filed by the due date and forward a list of who didn't file on to the state and to Winant's panel. "Either the ethics committee or Trenton can decide what they want."

But he takes issue with Paff, a Franklin resident, who he describes as an overzealous gadfly with nothing better to do. "I don't know who made him the policeman for all this."

Paff said he's not trying to pick on Milltown in particular, just encourage more proactive measures from municipal ethics boards and finance boards, which stand in on the issues in localities where there isn't an ethics board.

"This shouldn't be my job," he said yesterday, speaking by phone from his second home in Florida. "A lot of people criticize 'what's he doing this for?' I'm doing it because I have to."

The clerk said it's tough to find people to take positions on some of the boards that had members who didn't file, and it's even tougher with Paff filing complaints.

"You're not talking employees," Januszka said. "These are volunteers."

Winant acknowledged that in his letter to the clerk, which Paff provided. "I further realize that it is difficult to get residents to serve," he wrote. "However, this is the law. Everyone should comply or not accept these positions."

Ryan Hutchins is a reporter for the New Jersey Local News Service. He may be reached at rhutchins@njlns.com.

Monday, May 11, 2009

Appointed officials' partners need to file Financial Disclosure Statement

Sometimes a municipal attorney may, due to illness, scheduling conflicts, or other reason, send a member of his or her firm to attend a municipal council meetings. In 1998, a question arose in North Wildwood City (Cape May County) as to whether the replacement needs to file a Financial Disclosure Statement with the City Clerk.

North Wildwood's Ethics Board issued an advisory opinion holding that any replacement professional who attends two or more meetings in calendar year in the place of the designated municipal officer must file a Financial Disclosure Statement. The advisory opinion is at pages 17 - 19 of the PDF file here.

While an advisory opinion from North Wildwood is in no way binding on any other municipality, it may help persuade other municipalities to adopt a similar rule. So, if you live in town where an associate of the municipal attorney attends two or more meetings per year, you may want to point out that North Wildwood would require the associate to file a Financial Disclosure Form and ask your municipality to promulgate a similar rule.

John Paff
Somerset, New Jersey

Saturday, May 9, 2009

Borough to be more diligent with financial disclosure filings

A weekly newspaper printed the story below about the New Jersey Libertarian Party's efforts to get Milltown Borough (Middlesex County) to do a better job getting its municipal officers to file their Financial Disclosure Statements.

My ethics complaint is on-line here.

John Paff
Somerset, New Jersey

Advocate says officials violated disclosure laws

Ethics Board chairman calls lack of filings 'unfortunate'

BY JANE MEGGITT Staff Writer
May 7, 2009

A complaint has been filed with the Ethics Board claiming that numerous Milltown officials failed to file their required financial disclosure statements with the borough.

John Paff, chairman of the Open Government Advocacy Project for the New Jersey Libertarian Party, filed the ethics complaint on April 21.

According to Paff, six members of the Milltown Planning Board and three members of the Zoning Board of Adjustment, as well as certain members of the Board of Health, Shade Tree Commission, Library Board, Ethics Board and the Ford Avenue Redevelopment Agency, did not file 2008 financial disclosure requirements by the state-imposed April 20 deadline. Paff said the lack of filings is in conflict with both municipal and state laws.

Milltown Ethics Board Chairman Ed Winant responded to Paff's complaint by asking the borough clerk to notify the 17 officials that they must file or face dismissal from their committees.

Ed Winant, chairman of the Ethics Committee, last week sent an email to Municipal Clerk Michael Januska asking that he send reminders to everyone who had not submitted the required documents. Winant noted that filing the financial disclosure is a municipal and state requirement punishable by personal fines if the documentation is not received. If those individuals fail to file by a given date to be determined, it should result in their dismissal from their agency.

Winant said in his email that it was unfortunate so many had failed to file.

"Hopefully, it was just an oversight on their part and a reminder will get most of them to comply or be removed from the committees, boards or commissions. I further realize that it is difficult to get residents to serve; however, this is the law. Everyone should comply or not accept these positions," Winant wrote.

Paff said the ultimate goal of the ethics ordinance is to get officials to file documents so that the public can detect possible conflicts.

"If Mr. Winant's solution achieves that goal, I have no problem with it," Paff said.

Noncompliance with financial disclosure filings is a common problem in several towns that Paff has contacted, he said. He has filed similar complaints against officials in Wanaque, Passaic County; Gloucester Township in Camden County; and Middletown in Monmouth County; as well as others.

Paff said it is important that officials file the documents so that citizens can more easily detect whether an official is in a conflict of interest when performing their official duties.

As a hypothetical example, Paff noted that a zoning board member's wife could work for a company owned by an applicant before that board. If that official had filed a financial disclosure statement, the public would know the sources of his family's income and realize it would be a possible conflict for the member to vote on or participate in the application.

Paff said his complaint serves another purpose. "I think that it's fair to say that Milltown's Ethics Board, up to now, felt that its job was to simply react to complaints," he said. According to Paff, the board has only met twice since it was created in the early 1990s.

"I think that the fact that so many officials failed to file their 2008 forms might cause the Ethics Board to rethink its mission and become more proactive," Paff said.

Though Mayor Gloria Bradford and members of the Borough Council all filed their disclosure statements on time, Paff thinks they should be concerned about the fact that so many others allegedly violated the law.

"Hopefully they'll start thinking along the lines of, 'Since we had a problem with compliance with the Local Government Ethics Law, are we sure that our internal checks and balances are sufficiently rigorous to prevent us from properly and fully complying with other laws and obligations?' I think that this sort of self-critical review is important and can lead to other areas of improvement," Paff said.

Winant said the issue may be discussed at an upcoming council meeting.

Januszka said he sent out the ethic forms for 2009 on April 20, but he did not expect to go after the 2008 forms. He said he will send follow up reminders to those who don't return the forms, and the Ethics Board will then be given a list of those who did and did not comply.


http://ebs.gmnews.com/news/2009/0507/front_page/004.html

Committee to privately discuss and resolve defeated school board budget

I have recently written a letter to the municipal council and school board of South Bound Brook Borough (Somerset County) after being informed that the council and school board there each selected three of its members to serve on a joint committee to evaluate, without public observation, which items should be cut from a recently defeated school budget.

Anyone encountering a similar issue may find my letter useful. I have placed it on-line here.

John Paff
Somerset, New Jersey

Thursday, May 7, 2009

Longport settles "sunshine" lawsuit

At its May 6, 2009 meeting, the Board of Commissioners for the Borough of Longport Borough (Atlantic County) agreed to settle my Open Public Records Act and Open Public Meetings Act suit.

I sued Longport, along with sixteen other Atlantic County municipalities last September, because the Borough failed to provide me with closed session minutes until several months after the closed session occurred, and because the Board of Commissioners privately discussed topics that were outside of the scope of topics that the Commissioners told the public would be privately discussed.

In the settlement agreement, Longport's Board of Commissioners agreed to definite deadlines for production of its closed meeting minutes and agreed to more carefully identify the topics that they discuss privately. The Borough also agreed to reimburse me $59.78 as its share of my out-of-pockets costs in bringing the lawsuit.

The settlement agreement and other documents are on-line here

Longport is the seventh municipality to settle with me. The others are Buena Vista Township, Egg Harbor City, Folsom Borough, Margate City, Mullica Township and Northfield City. Those settlement agreements are on-line here

John Paff
Somerset, New Jersey