Thursday, July 29, 2010

OPRA hearing on August 6th in Jersey City

On Friday, August 6, 2010 at 1:30 p.m., Hudson County Superior Court Judge Bernadette DeCastro will hear argument in the Open Public Records Act and common law case of Bruce D. Kowal v. City of Bayonne, et al, Docket No. HUD-L-3505-10. The lawsuit is on-line here.

At issue in the case is whether Kowal, who is representing himself in the suit, is entitled to see an unredacted, or at least a more narrowly redacted, version of an Incident Report issued by the Bayonne Police Department regarding a Bayonne City Councilman found unconscious in his car by police in August 2008. The redacted incident report is at pages 59 and 60 of the PDF file at the above link.

According to a September 4, 2008 Star Ledger article ("Ted Connolly blames blood pressure for passing out in his car." by Jason Fink), Councilman Connolly claimed that after he had three glasses of wine at a friend's house, he began to feel dizzy as was driving home and pulled his car to the curb. He said that he telephoned his friend on his cell and told him he was sick. He claims, however, passed out before he could complete the conversation. The friend, alarmed, called police in both New York City and Bayonne and Bayonne Police ultimately found Connolly unconscious in his car. According to the article, Connolly said that the police did not give him a Breathalyzer or take blood to determine whether he was intoxicated. He blamed his unconsciousness on low blood pressure.

Kowal claims that the matter redacted from the report might provide more information on questions such as whether Mr. Connolly appeared to be intoxicated, whether he answered questions about the amount of alcohol he consumed and whether police had his car towed away from the scene. Kowal wants this information so that he can determine whether police afforded Connolly special treatment because he was a Council member.

The August 6, 2010 hearing is open to the public. Those who wish to attend are encouraged to call Judge DeCastro's chambers at 201-795-6880 the morning of the hearing to ensure that it has not been cancelled or postponed.

Tuesday, July 27, 2010

New records lawsuit: Paff v. South Bound Brook

On July 9, 2010, I filed a lawsuit against the Borough of South Bound Brook (Somerset County) seeking disclosure of records of a police investigation involving the "Mayor's wife's family." I am being represented by Walter Luers, Esq. of Oxford.

My lawsuit, along with my records requests and pre-suit correspondence with Borough Clerk Donald Kazar and Borough Attorney William Cooper are on-line here.

I originally learned of the police investigation that is at the heart of this lawsuit by reading Robert Verry's (former South Bound Brook police chief) postings on the NJ.com forums. When I learned that the Borough intended to charge Mr. Verry $375 to redact the police records related to the police investigation, I made a records request for a narrow subset of the same records Mr. Verry had requested. I had hoped that for little or no cost, I would be able to obtain records that would confirm or refute Mr. Verry's suspicions that information about this police investigation was being intentionally suppressed. (See Mr. Verry's Post 3180. "How much are YOU willing to spend?" 19:45 ET)

In my May 24, 2010 records request, I stated: "This is a perfect example of a situation I've encountered many times: Where a government agency's apparent stonewalling raises a public perception that something is being covered up. . . . In my experience in similar cases, when the records are finally made available, it often becomes evident that there was no cover-up. The net results, however, are a) the taxpayers have paid their agency's lawyer (and perhaps the requestor's lawyer) substantial legal fees arising out of the Open Public Records Act (OPRA) enforcement action and b) every agency official has needlessly lived under a cloud of suspicion that they or a member of their family were the target of a police investigation."

In his May 24, 2010 e-mail, Mr. Kazar candidly revealed that "the investigation involved the Mayor's Wife's family but the Prosecutor's found no case" (p. 3 of the PDF file at the above link). Then, in his June 14, 2010 denial of my request, Mr. Cooper provided me with a two-page index of the records to which I was being denied access (pp. 33-34).

At this point, it was apparent to me that a member of the Mayor's wife's family was involved in an investigation that produced approximately 25 investigative records, including 25 pages of photographs, a 9-page "evidence chain of custody form" and investigation reports filed by two police officers, one police sergeant and one police lieutenant.

I don't know what happened or who or what was being investigated. (A former member of the South Bound Brook Council, however, recently asked a question at a Council meeting regarding a "rumor" that she heard. See the second video here starting at the 7min 15sec mark.)

I do believe, however, that the public's interest in knowing who was investigated, the nature of investigation and the reasons that the prosecutor chose not to file charges is greater than the Borough's interest in keeping this matter confidential.

Saturday, July 24, 2010

OPRAing a public body's legal services invoices

A worthwhile exercise for citizen activists is to request their municipality's, school board's or other agency's legal services bills. These records permit citizens to know a) how much money the agency is spending on lawyers and b) a general idea of what the money is being spent on.

As an illustration, I submitted an OPRA request for invoices for legal services provided to the Plainfield (Union County) Board of Education for a three month period. I have placed those invoices, which span nearly forty pages, on the Internet here.

Here are some things that a citizen can learn from the invoices:

1. That the Plainfield Board of Education paid a single law firm approximately $77,500 during a three month period in 2010. (Annualized, this calculates to approximately $310,000 per year).

2. The law firm gets paid a $5,000 monthly retainer in addition to $150 per hour for legal services performed.

3. An ELEC search shows that the law firm, Hunt, Hamlin and Ridley of Newark regularly contributes to Democratic campaigns, including Sharon M. Robinson-Briggs' 2009 Primary election campaign for Mayor of Plainfield.

4. The court and administrative cases that the Board is a party to. (Actually, the Board redacted the case names from the invoices, but I expect that the Board will disclose these case name after considering my July 26, 2010 letter, which is also available at the above link.) This allows citizens to OPRA the complaints filed in those cases (and the settlements or judgments that resolved those cases) in order to learn who is suing the agency and why.

5. If disciplinary action is being taken against employees. For example, the invoices reveal that "CSA" was apparently suspended with pay and had tenure charges filed against him her her earlier this year. (see pages 27 and 28 of the PDF at the above link).

6. Of possible violations of the law committed by the agency. For example, Dr. Gallon, on April 14, 2010, alleged that the Board violated the Open Public Meetings Act.

In sum, legal services invoices contain useful information for citizen activists who wish to monitor a public body and hold it accountable.

John Paff
Somerset, New Jersey

Monday, July 19, 2010

Court orders release of surveillance DVD showing trespassing police officer

In a 25-page opinion issued on July 13, 2010, Union County Superior Court Judge Kathryn A. Brock ruled that while I am not entitled to a police surveillance video under the Open Public Records Act (OPRA), I am entitled to it under the common law right of access.

At issue in the case is a surveillance video that shows former Garwood Police Officer Gennaro Mirabella trespassing after hours in Garwood Borough's offices. Background on this case is available at my blog entry on-line here.

Judge Brock held "that the public interest in viewing the actions of the police officer which caused the Borough to issue a complaint against him for trespassing in that office, in context of how the Borough ultimately dealt with his conduct substantially outweighs the concerns raised by the Borough about the effect of the disclosure on the security of the Clerk's office."

Judge Brock ordered Garwood Borough to give me the requested surveillance video within 45 days. She also asked for briefs from both sides in order to determine whether my lawyer, Richard Gutman of Montclair, is entitled to have his attorney fees paid by the Borough.

Her order and opinion are on-line here. All the filings in the court, including Judge Brock's order and opinion, are on-line here.

Saturday, July 17, 2010

Citizens file petition to roll back Borough's salary increase

Voters in the Borough of Spring Lake Heights (Monmouth County) employed a little-used statutory mechanism to force the Borough Council to reconsider two ordinances that would have raised salaries for some Borough officers and employees. The purpose of this posting is to explain the mechanism so that voters in other municipalities can also avail themselves of it.

At issue are Ordinances 05-2010 and 06-2010, which were both enacted on June 14, 2010. The ordinances, respectively, sought to raise certain employee and officer salaries retroactively to January 1, 2009 and January 1, 2010.

On July 6, 2010, a group of citizens who call themselves "Let Those Who Pay Have The Say" submitted a petition, signed by 432 voters, invoking the provisions of N.J.S.A. 40A:9-165. That statute provides that whenever an ordinance

shall provide for increases in salaries, wages or compensation of elective officials or any managerial, executive or confidential employee, the ordinance or that portion thereof which provides an increase for such elective or appointive officials shall become operative in 20 days after the publication thereof, after final passage, unless within said 20 days, a petition signed by voters of such municipality, equal in number to at least 5% of the registered voters of the municipality, protesting against the passage of such ordinance, be presented to the governing body, in which case such ordinance shall remain inoperative unless and until a proposition for the ratification thereof shall be adopted at an election by a majority of the voters voting on said proposition.

The number of registered voters in Spring Lake Heights Borough is 3686, 5% of which is 185 voters. Accordingly, the petition was sufficient to suspend operation of the ordinances and put the two salary increase questions on the November 2, 2010 general election ballot.

On July 12, 2010, in response to the petition, the Borough Council introduced Ordinances 08-2010 and 09-2010 which will, respectively, repeal Ordinances 05-2010 and 06-2010. The two repeal ordinances will be voted upon on July 26, 2010. If they pass, there will be no need to put the salary increase questions on the November ballot.

The petition, ordinances and and the full text of N.J.S.A. 40A:9-165 are on-line here.

The statute can be used in any New Jersey municipality, including those which are not governed by Faulkner forms of government.

Friday, July 9, 2010

Glen Ridge Borough agrees to use more descriptive closed session resolution

On June 15, 2010, I checked the meeting minutes of the Glen Ridge (Essex County) Borough Council and found that the Council always uses the same, vague resolution when it goes into executive or closed session. The boilerplate resolution states: "The Mayor And The Borough Council of The Borough Of Glen Ridge shall convene in 'Executive Session' to discuss Legal and Personnel matters in accordance with the [Open Public Meetings Act.]"

I wrote to the Mayor and Council on June 21, 2010 urging them to provide more detail in their resolutions so that the public and press in attendance can better understand the issues that are being privately discussed. I attached a "model" resolution that I had drafted and asked them if they would consider using it instead of their present resolution.

I recently learned that the Council met on June 28, 2010 and agreed, going forward, to use my "model" form of resolution. The draft minutes from the June 28, 2010 meeting state, in pertinent part:

EXECUTIVE SESSION RESOLUTION

Administrator Rohal reviewed the letter from John Paff regarding executive session resolutions. Mr. Paff correctly points out that the resolution should specifically note the reason for the executive session. The Borough will be using the model resolution which Mr. Paff provided for all future executive sessions.

I have placed my letter to Glen Ridge and my "model resolution" on line here.

Readers who would like to urge their own municipal councils, school boards or other government bodies to improve their closed session resolutions should feel free to borrow the language from my letter and resolution.

Monday, July 5, 2010

Stratford Borough improperly delaying access to executive session minutes

On July 6, 2010, the New Jersey Libertarian Party's Open Government Advocacy Project sent the following letter to Stratford Borough (Camden County) Mayor John Gentless and the Borough Council.

Hopefully, the Council will discuss this issue at its July 8, 2010 meeting and adopt a policy that will ensure that citizens get prompt access to Borough Council executive meeting minutes.

John Paff, Chair
New Jersey Libertarian Party's
Open Government Advocacy Project

Dear Mayor Gentless and Council Members:

I write, both individually and as Chairman of the New Jersey Libertarian Party's Open Government Advocacy Project, to appeal a decision by the Stratford Borough Solicitor to deny me access to even redacted versions of the minutes of the Borough Council's executive meetigs held on November 5, 2009; February 4, 2010; February 16, 2010; March 4, 2010 and March 15, 2010.

By way of background, I made a records request for those executive sessions minutes on June 15, 2010. On June 24, 2010, I received the following e-mail from Borough Clerk John Keenan:

The Borough Solicitor and myself have reviewed the draft of the executive sessions you have requested, which are November 5, 2009; February 4, 2010; February 16, 2010; March 4, 2010 and March 15, 2010, and the draft for these sessions are not ready for the Governing Body to approve at this time.

Based on NJSA 47:1A-1.1 the definition of a "government record" does not include inter-agency or intro-agency advisory, consultative, or deliberative material.

Until the Governing Body approves the executive session minutes, the draft is not considered a record.

N.J.S.A. 10:4-14 requires the non-exempt portions of the Borough's closed minutes to be made "promptly available to the public." I believe that denying a request made in June 2010 for minutes of a meeting that occurred in November 2009 is not “promptly available” as required by the statute.

Moreover, since the purpose of approving minutes is to ensure that they accurately reflect what occurred during the meeting, wouldn’t it be best to have presented the November 5, 2009 minutes for approval a the very next meeting while what occurred at the meeting was still fresh in the Council members’ minds? And, waiting until 2010 to approve minutes from 2009 is undesirable because it allows for the possibility of a newly elected council person being asked to approve minutes for a meeting at which occurred before his or her election to office.

A few years ago, I sued the Borough of Lawnside for similar Open Public Meetings Act violations. On April 13, 2007, Camden County Assignment Judge Francis J. Orlando signed an order which declared that Lawnside Borough had "violated [my rights under the Open Public Meetings Act, Open Public Records Act and common law by denying [me] access to the minutes and notes of [Lawnside's] nonpublic meetings for more than six months." Judge Orlando also ordered Lawnside to "make minutes of its nonpublic meetings available to the public no later than sixty (60) days after the date of each nonpublic meeting." A copy of Judge Orlando's Order is [available on-line here].

Stratford has denied me access to minutes of an executive session held on November 5, 2009--more than nine months ago. Since Judge Orlando has already ruled that Lawnside violated the law by denying access to minutes to meetings held six months in the past, it stands to reason that he would also find Stratford in violation if were to bring suit.

I have no desire to bring suit against Stratford. Rather, I prefer that towns simply comply with what the law requires. Would Stratford be willing to adopt a policy that would, going forward, a) require executive session meeting minutes to be presented for Council approval at the next regular meeting and b) require that minutes of executive meetings, redacted as necessary, be publicly available by no later than sixty days after the meeting? This is the same time period that Judge Orlando imposed upon Lawnside.

I would appreciate it if you would discuss this issue at the Council's July 8, 2010 Agenda Meeting and let me know your thoughts. I would also appreciate it if you would reconsider my request for the minutes, redacted as necessary, the Council's November 5, 2009; February 4, 2010; February 16, 2010; March 4, 2010 and March 15, 2010 executive meetings.

Thank you very much for your attention to this matter.

Sincerely,


John Paff

Saturday, July 3, 2010

Internal Affairs Complaint against the Garwood Police Chief

Update: August 14, 2010

Internal Affairs Complaint dismissed against Garwood Police Chief

As previously reported, I filed an Internal Affairs complaint on May 12, 2010 against Garwood Police Chief William Legg for submitting a false certification in a civil case that misled a Superior Court Judge.

By letter dated July 30, 2010, Union County Prosecutor's Office's Chief of Detectives Robert T. Buccino informed me that my complaint was "determined to be unfounded" and was dismissed. A copy of my complaint and the dismissal letter is on-line here.

According to the Attorney General's Internal Affairs Policy & Procedures, Revised November 2000, a complaint is considered "unfounded" if the investigation determines that "the alleged incident did not occur."


During an April 30, 2010 hearing before the Hon. Kathryn A. Brock in the Union County Superior Court, I became aware that a certification filed by Garwood Borough Police Chief William Legg was at odds with the facts.

By way of background, I am suing Garwood for access to video surveillance of former Garwood police officer Gennaro Mirabella trespassing in the Borough's offices. Legg, in order to bolster Garwood's claim that disclosing the video would jeopardize security at the Borough offices, submitted a written certification to the court stating that the Borough's safe was depicted in the video. After the judge and two lawyers viewed the video in a back room, it was publicly disclosed that the safe was NOT depicted in the video. Thus, it appears that Chief Legg made a false statement that misled me and the court. (For more background on the hearing see my blog entry here.)

I believe that people, especially government officials, must tell the truth in the court filings. Accordingly, on May 12, 2010, I filed a complaint against Chief Legg with the Garwood Police Department's Internal Affairs Unit. A copy of that complaint is on-line here.

On Monday, June 28, 2010, I was contacted by Detective Sergeant Edward Koenig of the Union County Prosecutor's Office, and at his request, I appeared at his office in Elizabeth on Thursday, July 1, 2010 to give a formal, sworn statement regarding this matter. Sergeant Koenig explained that the Union County Prosecutor's Office is handling my complaint because it would not be appropriate for Garwood's Internal Affairs Officer, who is Legg's subordinate, to investigate the matter.

Sergeant Koenig said that he will release his final report on the mater in 30 to 45 days. Upon receipt, I will post it on-line and direct readers' attention to it.