I sent the following letter to Mayor Guenther and the Brigantine City Council today. The documents referenced in the letter (my records request and the City's denial) are on-line here.
I am making this letter public for two reasons.
First, I want to put Brigantine taxpayers on notice that I may sue the City and that both my attorney fees and the City's might ultimately be borne by the taxpayers. Thus, it may be in citizens' interest to urge their elected representatives to disclose the requested information rather than continue to suppress it.
Second, it's possible, perhaps likely, that readers might be willing to share any information they have regarding this sexual harassment matter. Please feel free to either post that information on the pennjersey.info or njo.com forums where this open letter appears or send it privately to me at paff@pobox.com I ask that readers NOT publicly post information that would identify the victim of the sexual harassment.
John Paff, Chair
New Jersey Libertarian Party's
Open Government Advocacy Project
Somerset, New Jersey
----------------------------
August 3, 2010
Hon. Philip J. Guenther, Mayor, and members of the
Brigantine City Council
1417 W. Brigantine Ave
Brigantine, NJ 08203 (Via E-mail only to lsweeney@brigantinebeachnj.com )
Dear Mayor Guenther and City Council members:
I write both individually and as Chairman of the New Jersey Libertarian Party's Open Government Advocacy Project. The project's mission is to promote openness and transparency in government, particularly at the local level. Our work often involves requesting (and suing for) records evidencing official misconduct that public officials would rather keep hidden from the public. Please be aware that I consider this to be an "open letter" and have posted it on various Internet forums.
A while back, I received an anonymous tip alleging that a) a high ranking member of the Brigantine city administration had been involved in sexual misconduct, b) that an outside law firm, at a cost of over $10,000, investigated this incident, and c) that an agreement was reached where the alleged offender was allowed to quietly retire in lieu of being disciplined.
In early July, I submitted a records request for invoices that the City received from law firms. In response, I received many pages of records and among them was an April 15, 2010 invoice from Archer & Greiner, P.C. that showed that the City was billed $13,975 for a "special counsel investigation." The invoice showed that interviews were conducted, an investigation report was drafted and that an "agreement" was prepared. Upon receipt of this invoice, I submitted a more targeted records request for the records referenced in the invoice.
On August 3, 2010, I received a response from Timothy P. Maguire, Esq., who serves as Brigantine's attorney. My records request was denied except that
a) the City conceded that the investigation related to a sexual harassment complaint;
b) that the "investigation memos" referred to in the invoice, which were not disclosed, consisted of 1) an "investigative chronology of Internal Affairs case," 2) an "investigative Internal Affairs report of Capt. Raymond Cox," 3) an "initial complaint to the Internal Affairs Unit of the Atlantic County Prosecutor's Office," and 4) an "Internal Affairs Report of Capt. John B. Stone, Jr."
c) that an agreement was ultimately reached "that resolved the dispute between the parties."
Based on this response, it's reasonable to conclude that a city official, almost certainly an official within the police department, was accused of sexual harassment and, after an investigation, entered into some sort of agreement that resolved the matter to satisfaction of both the accused official and his or her accuser.
While I appreciate the victim's desire for anonymity, I do not believe that the person accused, at least if he or she is or was a high ranking official, should remain anonymous. Instead, I think that the public's right to know the identity of the accused and the terms of the agreement between the parties outweighs any legitimate governmental need for confidentiality.
Thus, I am contemplating suing the City of Brigantine for access to the parts of the denied records that a) identifies the accused official, b) provides the general nature of the official conduct complained of and c) sets forth the terms and conditions of the agreement reached with the official. My suit will specifically NOT seek to identify the alleged victim. Also, although my suit will claim that the City's denial violated the Open Public Records Act, it will also seek the records under the common law right of access, which I consider to be a stronger argument.
I am informed by the City's Internet site that the Mayor and Council meets on the 1st and 3rd Wednesday of each month. Accordingly, I ask that the Council, at either its August 4, 2010 or August 18, 2010 meeting, re-evaluate Mr. Maguire's response to my request and consider voluntarily disclosing the information set forth in the immediately preceding paragraph. Since this is "anticipated litigation," I believe that the Council's discussion could take place in executive session in accordance with N.J.S.A. 10:4-12(b)(7).
While I have forty-five days within which to file my lawsuit, please keep in mind that I can't wait until the very end of that period before deciding whether or not to actual pursue a lawsuit. So, unless the City informs me, on or before Friday, August 20, 2010, that it agrees to disclose the requested information, I will consult with counsel and will file my suit, if I decide to, without further advance notice to the City.
Thank you for your attention to this matter.
John Paff