Friday, August 20, 2010

Video: Garwood Police Officer Trespassing

The video that I had to sue the Borough of Garwood (Union County) to get is now on YouTube here.

It shows former Garwood Police Officer Gennaro Mirabella walking through the Garwood Borough offices, after hours, looking in boxes, etc. I cannot understand why Garwood fought so hard (and spent so many taxpayer dollars) to suppress this innocuous video.

Background on the lawsuit that I filed to obtain this video is on-line here and the links contained within that blog post.

Background on the Internal Affairs complaint that I filed against Garwood Police Chief William Legg for misleading the court with a false statement in a certification is on-line here.

Friday, August 13, 2010

Several OPMA issues with the Bridgeton Board of Education

I attended a meeting of the Bridgeton Board of Education (Cumberland County) on August 10, 2010 to address two concerns: a) executive session minutes that are not "reasonably comprehensible" and b) meeting agendas not being given to the public until the beginning of the meeting.

I arrived for the 6 p.m. meeting at 5:45 p.m. and found the building to be locked. I rang the bell and knocked on the door and in a few minutes a man came and pushed a latch to let me in, but he didn't unlock the doors for any other members of the public who might later arrive. This gave me an initial indication that openness and transparency were not among the Board's strong suits.

When I walked into the meeting room, I encountered the smell of food. I looked to my left and saw several people sitting in an adjoining room eating and conversing. I took a seat in the public area and waited. While waiting, someone from inside the adjoining room closed the door. After a few minutes, the Board members and some administrators emerged from the adjoining room and took their places on the dais. Since it was about six o'clock, someone unlocked the exterior door to allow other members of the public to enter.

The meeting was then formally called to order. At that time, the president asked for a short delay while one of the staff members duplicated the meeting agenda for the four members of the public (including me) who were present. We were each given copies of the meeting agenda and were invited to sign a list if we wished to address the Board. I signed up as did one other citizen.

I was called first to speak and I distributed some exhibits to the Board members. Among the exhibits was the Board's July 14, 2009 Executive Session minutes (see here) which is typical of the Board's executive session minutes. I noted that the Board summed up a private meeting that lasted nearly one and a half hours with the following sentence that appeared in the minutes: "The Board discussed matters of personnel." I opined that this single, general sentence did not meet the Open Public Meetings Act requirement that meeting minutes be "reasonably comprehensible." (See N.J.S.A. 10:4-14).

I next noted that the 30-page agenda that I had just been given ought to have been provided to the public at least a day or two prior to the meeting. I explained that it is difficult, if not impossible, for members of the public to present cogent comments and questions to the Board regarding agenda items when they don't have access to the agenda until literally seconds before the public comment period begins.

While I was speaking, I observed that the Board members didn't look at me or appear to be paying any attention to what I was saying.

I finally raised the issue of the Board's pre-meeting in the adjoining room and expressed my opinion that this gathering was disallowed by the Open Public Meetings Act. I then thanked the Board for their attention and asked them if they had any questions or responses. None of the Board members looked at me or paid any attention to me. So, after waiting at the podium for a few seconds, I returned to my seat.

The next speaker was called, and she stated that she was an employee who received a letter that she did not understand. One of the administrators told her it was Rice Notice. She then asked why her union representative wasn't present and the Board Attorney, A. Paul Kienzle, Jr., brusquely told her that her union representative's presence or absence wasn't the Board's concern. Board President Edwards asked her "Is that all?" and the woman shrugged and returned to her seat. The Board then moved to go into executive session and told the four members of the public to leave the room.

The following day, I filed a complaint against the Board, concerning the pre-meeting meals, with the Cumberland County Prosecutor and the New Jersey Department of Education. That complaint is on-line here.

I have rarely witnessed more cavalier and imperious public officials than the members of the Bridgeton Board of Education. I look forward to working with them to improve their compliance with both the letter and the spirit of the Open Public Meetings Act.

Bloomfield turns over e-mail, pays almost $5,000 in attorney fees

On June 11, 2010, Montclair Attorney Richard Gutman filed suit on my behalf against Bloomfield Township (Essex County) to force disclosure of an e-mail sent by the Essex County Prosecutor's Office to a Bloomfield Councilwoman. (Paff v. Bloomfield, Docket No. ESX-L-4384-10). Background on the suit, as well as the lawsuit documents, can be found here.

On August 10, 2010, the Township of Bloomfield (Essex County) decided to give me the e-mail that I sued to obtain. And, Bloomfield agreed to pay $4,913 for my costs of suit and Mr. Gutman's attorney fees. A copy of the e-mail that was provided is on-line here.

I believe that Bloomfield taxpayers have good reason to ask their elected officials why nearly $5,000 was paid in order to suppress a record that even the Township concedes is not exempt from disclosure.

An article on the disclosure and the payment of attorney fees follows.

John Paff
Somerset, New Jersey

Detective's e-mail: Bloomfield under investigation
Thursday, August 12, 2010
BY JEFF FRANKEL
Bloomfield Life
of Bloomfield Life

BLOOMFIELD - The township has settled out of court with a government watchdog who was seeking correspondences between the prosecutor's office and a council member.

As part of the settlement with Somerset County resident John Paff, the township released an e-mail between an Essex County Prosecutor's Office detective and Councilwoman Patricia Spychala and will pay Paff $4,913 in costs and legal fees. Paff, chairman of the Libertarian Party Open Government Advocacy Project, accused the township of violating the state's Open Public Records Act.

Now that he's seen at least part of the conversation, Paff said he does not understand why the information he requested was not immediately released. To him, it appears there was nothing damaging anyone's reputation.

"The e-mail is innocuous," wrote Paff to Bloomfield Life. "It does nothing more than confirm what I already knew - that the prosecutor's office was conducting some sort of investigation involving Bloomfield. It's hard to understand why the township dug in its heels and spent so much money trying to suppress this e-mail.

"I suppose, however, that with a bottomless well of taxpayer dollars at its disposal, the township administration can afford to make these types of decisions."

These are some the same documents Bloomfield Life has tried obtaining for several months. There is a caveat: a letter and e-mail between Township Attorney Brian Aloia and Spychala's personal attorney Edward Kologi are not yet released. It is unclear if and when the township will release them.

Calls made to Spychala and Aloia were not immediately returned Thursday.

According to the complaint first filed in April, Paff requested the specific e-mail through OPRA but was denied by Municipal Clerk Louise Palagano, who said it was protected under attorney-client privilege.

OPRA records must be turned over to anyone requesting them no longer than seven business days. Some documents - such as budgets and bills - are subject to immediate access. But there are 24 exemptions, including "any record within the attorney-client privilege," according to the state.

Superior Court Judge James Rothschild was scheduled to hear the OPRA case on Sept. 16 at the Historic Courthouse in Newark.

"Our office is currently conducting an investigation concerning certain allegations involving the Township of Bloomfield and believe that you may have information which could assist that investigation," reads one sentence of the entire four-sentence e-mail from Det. David Campo to Spychala.

For Paff, he can see now that there is certainly no exemption that would have kept the public from seeing this e-mail, as Campo asks Spychala to call him to be interviewed.

"The attorney-client privilege doesn't even arguably apply, and there is no reason why the township couldn't have just turned the e-mail over to me when I requested it," Paff wrote.

E-mail: frankel@northjersey.com

Thursday, August 5, 2010

Ethics Complaint dismissed against 30 Gloucester Twp officials

On October 8, 2008, I filed a complaint with the Local Finance Board against thirty (30) Local Government Officers serving Gloucester Township (Camden County). I filed this complaint because each of those officers had failed to file the Financial Disclosure Statement (FDS) that the Local Government Ethics Law requires to be filed on or before April 30, 2008.

After I filed my complaint, the 30 officials apparently filed their tardy FDS forms--the last one to file was Zoning Board Member Kevin Bucceroni on December 5, 2008.

On July 30, 2010--about a year and half after Bucceroni's filing--the Local Finance Board notified me that my complaint was "dismissed" because it "no longer [has] a factual basis." In other words, the fact that none of the officials had filed by the April 30, 2008 deadline does not, in the Local Finance Board's view, constitute a violation of the Ethics Law. Thus, local government officers are free to simply ignore the FDS filing requirements, knowing that they can simply file their tardy forms in the unlikely event that someone complains.

I have been complaining for years about the Local Finance Board's failure to meaningfully enforce the Ethics Law. In one news article I was quoted as saying: "If [the Local Government Ethics Law and the attorney disciplinary system] were intended to actually punish wrongdoing, I think they fail miserably. . . I believe that a decent argument could be made that neither system was intended to ferret out unethical conduct and discipline the perpetrators. Rather, these systems were intended to placate the public and create an illusion that lawyers and politicians are actually subject to oversight."

Now that I've received the 30 tardy records (actually I received 28 of them--the Local Finance Board did not send me one for Rent Stabilization Board member Laurence Lamourine and sent me the 2007 form filed by District No. 1 Fire Commissioner Ralph Ferninando), I've decided to put them on-line so that Gloucester Township residents can easily access them. The records are here.

P.S. Observant readers will note that: a) District No. 1 Fire Commissioner Ralph Ferninando's filing indicates that he has no source of income and b) Section II.A of Fire Commissioner Kevin Donahue's form is filled out incorrectly.

Roselle pays $3,000 in attorney fees to OPRA claimant

On August 5, 2010, the Borough of Roselle paid my lawyer, Walter Luers of Oxford, New Jersey, $3,000 to settle an Open Public Records Act (OPRA) case that began nearly three years ago.

The matter began when I read a September 1, 2007 Star Ledger editorial stating that Roselle Borough (Union County) “council members also complain they haven't seen any minutes for borough meetings since last October.” In order to investigate a probable violation of the Open Public Meetings Act, I submitted a September 2, 2007 request for Borough records, including the resolutions, "that authorized the first two (2) Borough Council nonpublic (i.e. closed or executive) meetings that occurred after October 1, 2006."

The Borough denied this request (and similar requests) claiming that it did "not identify a document, but rather requires that a work task be done by a government employee.” Roselle's argument was that the Open Public Records Act (OPRA) does not require it figure out the first two dates after October 1, 2006 that the Borough Council went into executive session. Rather, the Borough argued, it was my job to look through the Council's public meeting minutes in order to ascertain the dates of the executive sessions, and then to identify the desired resolutions by date. I, through Mr. Luers, filed a complaint with the Government Records Council (GRC).

On April 30, 2008, the GRC issued its opinion (Paff v. Roselle, GRC Case No. 2007-255) and held that my request was not an "open-ended search" that was intended "as a research tool . . . to force government officials to identify and siphon useful information." See MAG Entertainment, LLC v. Division of Alcoholic Beverage Control, 375 N.J.Super 534, 546 - 549 (App. Div. 2005). It also held that my request identified the requested records "with reasonable clarity" in accordance with Bent v. Stafford Police Department, 381 N.J. Super 30, 37 (App. Div. 2005). Ultimately, the GRC ruled that my request was "not open-ended, nor does it require research, but rather requires the Custodian to locate the corresponding meetings and provide resolutions and meeting minutes."

This case made an obvious--but I believe important--distinction between a custodian's duty to "research" agency records and "searching" for identifiable records.

On June 25, 2008, the GRC ordered Roselle Borough to pay my attorney fees for bringing the action. The GRC also found that Clerk Rhona Bluestein's handling of my request appeared to be "negligent and heedless" but not serious enough to warrant her being fined $1,000. After two years, the amount of the attorney fees due was agreed to be $3,000.

The settlement check, settlement agreement and other case filings are on-line here.

Tuesday, August 3, 2010

Sexual Harassment in Brigantine: Open letter to Mayor and Council

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