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.

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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