Wednesday, October 28, 2009

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

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

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

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

Tuesday, October 27, 2009

Village threatened with lawsuit over slow release of minutes

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

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

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

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

Update: November 14, 2009

Ridgewood Village somewhat improves its minutes release policy

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

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

Thursday, October 15, 2009

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

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

QUESTION:

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

ANSWER:

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

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

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

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

GRC: Confidentiality clause is not an OPRA exception

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

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

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

John Paff
Somerset, New Jersey

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

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


By LAURA BRUNO • STAFF WRITER • October 14, 2009

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

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

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

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

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

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

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

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

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

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

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

Stewart Garvin did not return a call seeking comment.

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

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

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

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

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

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

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

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

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

Thursday, October 1, 2009

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

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

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

The violation notice and complaint are on-line here.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

DelGuercio, Pepe and Vannatta were unavailable for comment.

E-mail: zaremba@northjersey.com