Friday, April 29, 2011

Hunterdon County's bank account levied upon for $93,265.37

On April 15, 2011, Hunterdon County Sheriff Corporal Sandra Ford delivered a writ of execution to the Wells Fargo Bank at 74 Church Street, Flemington and levied on Hunterdon's County's bank accounts. The levy amount, $93,265.37, represented legal fees that the County owes to the South Jersey law firm Friedman & Doherty, LLC of West Berlin.

The County was ordered to pay the $93,265.37 by Superior Court Assignment Judge Yolanda Ciccone's February 7, 2011 order that arose out of a class action lawsuit captioned James Gensch et al v. Mary H. Melfi, Hunterdon County Clerk et al, Docket No. HNT-L-307-07.

Gensch's lawsuit was a class action, filed on May 8, 2007, challenging the 25 cents per page charged by the self service copier machines located in the deeds and mortgages recording room. Gensch alleged that the 25 cents per page was too high and that the County was legally allowed to only collect its actual cost per copy, which Gensch estimated to be 7 cents.

The trial court dismissed Gensch's complaint on December 22, 2008 and Gensch appealed. The Appellate Division, on February 10, 2010, reversed and held that effective July 1, 1010, the County must reevaluate its actual costs and charge no more that its actual costs of producing a copy. According to the Appellate Division's decision, the number of copies purchased from the County's machines between May 2001 and August 2008 was 1,598,563 and, at 25 cents per page, the County collected $399,640.74 for providing copies of those pages.

On April 30, 2010, Gensch and the County entered into a consent judgment in which the County agreed to start charging seven cents per copy effective July 1, 2010.

Thereafter, Friedman & Doherty, Gensch's attorney, filed a motion seeking to require the County to pay Gensch's legal fees. According to filed papers, the firm sought $166,255.73 in fees plus a $12,000 award to Gensch. In a March 14, 2011 written opinion, Judge Ciccone started by considering Friedman & Doherty's request to be paid $350 per hour for 309.3 hours. After removing "unnecessary billings, billings for two attorneys where the task was reasonably allotted to a single attorney, duplicative work, or work which contributed to the litigation of similar cases in other counties," Judge Ciccone reduced the attorney fee award to $93,265.37 and denied Gensch his requested $12,000 award.

After the award of the attorney fees, the County moved for a stay of the attorney fee award so that the County could appeal the award to the Appellate Division. In its motion, the County argued that the County didn't have $93,265.37 in its budget and, like other local agencies, was under "extreme financial pressures" and "recently laid off nineteen (19) County employees in order to reduce its spending." The County's motion papers also noted that a judge in Hudson County had recently denied Friedman & Doherty attorney fees "on the exact same issue as this matter" and that the firm had appealed the Hudson County judge's order.

On March 23, 2011, the County filed its Notice of Appeal and on April 1, 2011, Judge Ciccone denied the County's motion for a stay.

Since nothing legally stood in the way of the February 7, 2011 order that awarded Friedman & Doherty its $93,265.37 in fees, the firm, on April 13, 2011, applied for a writ of execution, which was signed by Judge Ciccone. The writ was then given to the Hunterdon County Sheriff's office which effected the bank levy.

The County's lawyer in the Gensch matter is Michael A. DeSapio of Frenchtown. According to the most recent "Hunterdon County Legal Actions Report" on the County's Internet site, which is dated September 1, 2010, $65,769.82 had been paid to DeSapio's firm for representation. My Open Public Records Act request for DeSapio's bills show that the firm has billed the County for an additional $10,869.53 since the most recent "Hunterdon County Legal Actions Report" was prepared.

All of the relevant official documents used in the preparation of this article are on-line here.

How to audit a body for OPMA compliance

I am sometimes asked how I word my OPRA requests to public bodies that I wish to audit for compliance with the Open Public Meetings Act's closed session requirements.

I use the following form of request, since it is informs me of a) how current the body is on making its closed session minutes publicly disclosable, b) the level of detail contained in the body's closed session minutes, c) how closely the topics that the body resolved to discuss in closed session correspond to the topics that the body actually discussed in closed session, and d) the extent to which the body's closed session minutes are "reasonably comprehensible" as required by law.

To: Records Custodian

Please accept this e-mail as my request for government records in accordance with the Open Public Records Act (OPRA) and the common law right of access. Please respond to this inquiry via e-mail or by fax to [Fax No.].

1. The minutes of the [body's] three most recently held non-public (i.e. executive or closed) sessions for which minutes are publicly disclosable either in full or in a redacted version.

2. The resolutions, as required by N.J.S.A. 10:4-13, that authorized each nonpublic session for which minutes were furnished in response to #1 above.

3. The resolutions, as required by N.J.S.A. 10:4-13, that authorized the three most recently held nonpublic sessions, regardless of whether minutes for those closed sessions are publicly disclosable either in full or in a redacted version.

If the resolutions responsive to #2 and #3 above are spread out in full in the public meeting minutes, please send me only the pages that contain the text of the resolutions.

Friday, April 15, 2011

OPRA/OPMA hearing in Camden this Wednesday

Update: 06/21/11: City loses bid to restrict citizens' rights under OPRA, ordered to pay legal fees

On June 10, 2011, Camden County Superior Court Judge Frederick J. Schuck rejected Gloucester City's (Camden County) attempt to "control and regulate" the public records requests filed by two local men. In an April 12, 2011 counterclaim filed in response to John Schmidt's and Michael Walters' Open Public Records Act (OPRA) and Meetings Act suit, Gloucester City lawyer John B. Kearney argued that the men's filing of 154 OPRA requests during a three month period was a "campaign of harassment . . . motivated by a desire to dispute [sic] the normal efficient functioning of the municipal government and to harass the elected and appointed officials of the City."

After the men's lawyer, Walter M. Luers of Oxford, moved to dismiss the counterclaim on May 14, 2011, Kearney attempted to withdraw the City's counterclaim. In his June 3, 2011 letter to the Court, Kearney admitted that the "harassment count of the Counterclaim is not a cognizable cause of action in a civil court." Despite the letter, Judge Schuck dismissed the counterclaim and ordered the City to pay the legal fees the men incurred in moving for dismissal.

Judge Schuck's June 10, 2011 Order, the counterclaim and the City's attempt to withdraw the counterclaim are on-line here.

Update: On May 2, 2011, the Court issued an order resolving most of the issues in dispute. The order is on-line here. Among the matters resolved are:

1. Going forward, the school board's minutes must be "reasonably comprehensible" and identify the parties to all litigation and contractual negotiations discussed as well as the names of employees who were privately discussed. While the court agreed that in some cases, the names of the employees may be redacted from the minutes before they are made public, those names must be actually recorded in the minutes. This requirement was in response to the lawsuit's complaint that the school board would sum up hour long meetings in one word, such as "Retirement" or "Personnel."

2. Unless there is an emergency, the Gloucester City Council shall prepare its executive session and regular meeting minutes for approval at the next regularly scheduled meeting.

3. The City Council is prohibited, going forward, from discussing or acting on public business unless public notice requirements are obeyed.

4. The City Council will make an effort to approve its 2008 and 2009 executive session minutes and shall, on April 28, 2011, publicly disclose redacted versions of any such minutes that have not been approved.

At 8:30 a.m. on Wednesday, April 13, 2011, Judge Frederick J. Schuck, sitting in Camden, will hear oral argument in a lawsuit alleging that the City of Gloucester City committed several violations the Open Public Meetings Act (OPMA), the Open Public Records Act (OPRA) and the common law right of access to government records.

The lawsuit, Schmidt et al v. City of Gloucester City, et al, Docket No. CAM-L-1287-11 was filed on March 17, 2011 by Oxford, New Jersey attorney Walter M. Luers on behalf of Plaintiffs John P. Schmidt and Michael Walters, both of Gloucester City. In addition to the City, the lawsuit names the Gloucester City Board of Education, the City's Housing Authority as well as City Clerk Kathy Jentsch, Board of Education Business Administrator Margaret McDonnell and Housing Authority Records Custodian Sue McElhatton as defendants.

The lawsuit and other case documents are on-line here. (File is 7.1 Mb)

The complaint alleges a smorgasbord of OPRA and OPMA violations. The Plaintiffs claim that the Board of Education consistently goes into executive session without sufficiently identifying the topics to be discussed and recording minutes that are "uniformly uninformative." The City Council is accused of denying access to various meeting minutes, holding a secret, illegal meeting and failing to approve executive session minutes in a timely fashion. The Housing Authority is charged with refusing to release any of its 2010 executive session minutes, even in redacted form, and for overly-redacting its attorneys legal invoices.

One of the most serious allegations is that the Mayor, on January 1, 2011, invited all City Council members along with certain administrative officials to "a meting at the democrat club on Sunday at 1 p.m. for the sole purpose of finalizing committees for the upcoming year." Despite this being a meeting that ought to have been publicly advertised in accordance with the OPMA, the complaint alleged that "no public notice of that meeting was prepared or published [and] no minutes of the January 2, 2011 secret meeting have been kept."

Also of particular significance is the lawsuit's challenge to Board of Education minutes that sum up hour long meetings in one word, such as "Retirement" or "Personnel."

The media and public are invited to attend and observe Wednesday's hearing. It will be held at the Hall of Justice, 101 S. 5th Street, Camden. Those who wish to attend are advised to call Judge Schuck's chambers at 856-379-2380 or the Civil Division Manager's office at 856-379-2200 ext. 3070 the day prior to the hearing to verify that it hasn't been adjourned.

Gloucester City counterclaims against OPRA requestors

I previously posted information regarding the court case of Schmidt and Walters v. City of Gloucester City, et al, Docket No. CAM-L-1287-11, which alleges various violations of the Open Public Meetings Act (OPMA), the Open Public Records Act (OPRA) and the common law right of access to government records. The plaintiffs are being represented by Walter Luers, Esq. of Oxford, New Jersey.

On April 12, 2011, City of Gloucester City and Acting Clerk Kathy Jentsch filed a counterclaim against Plaintiffs John Schmidt and Michael Walters seeking a court declaration that "the actions of the plaintiffs constitute a substantial disruption under OPRA [and] harassment" and a directive "controlling and regulating plaintiffs [sic] OPRA requests [and] limiting plaintiffs [sic] use of OPRA for legitimate purposes."

According to the counterclaim, Schmidt and Walters "between January 1, 2011 and March 1, 2011 . . . filed a total of 154 [OPRA] requests" requiring Acting Clerk Jentsch to "spend close to 26 hours in responding." The counterclaim also alleges that "when it became apparent that the plaintiffs were undertaking a campaign of harassment via OPRA" City officials asked the Government Records Council (GRC) for advice. According to the counterclaim, the GRC told City officials "that there may be some relief provided in the substantial disruption provision of N.J.S.A. 47:1A-5.g" but that "the best option [is] to pursue a harassment complaint . . . in court."

The counterclaim is available on-line here.

The lawsuit and other other paperwork is on-line here. (File is 7.1 Mb)

Alert readers may remember that Clerk Jentsch is the same records custodian who announced in January 2011 that she was only going to accept two OPRA requests per day. My January 2011 posting on that issue is available here.

Just two OPRA requests per day in Gloucester City

The Clerk of Gloucester City (Camden County) has established a policy of handling only two OPRA requests per business day. According to Acting Clerk Kathleen M. Jentsh's January 7, 2011 letter (see link below), more OPRA requests than that will be considered a per se "substantial disruption" of the Clerk's functions. Such requests will not be considered "received" until all previous requests--at two per day--have been satisfied. For more information, click here.

Original Posting Date: January 10, 2011

Update: January 13, 2011

On January 10, 2011, I informed this forum that the Acting Clerk of Gloucester City (Camden County) had established a policy of handling only two OPRA requests per business day.

I received several responses. Among them was Open Public Records Act (OPRA) Attorney Walter Luers' January 10, 2011 e-mail to Government Records Council (GRC) Executive Director Catherine Starghill asking her to inform Gloucester City Acting Clerk Kathleen M. Jentsch that her policy conflicted with the OPRA.

Mr. Luers shared Ms. Starghill's response with me and informed me that Ms. Starghill consented to its publication. Ms. Starghill's e-mail is set forth below.

Also, I received an e-mail from another correspondent that included an e-mail from Ms. Jentsch. In her e-mail, Ms. Jentsch informed the correspondent that "I have since spoken with the GRC and am no longer limiting to 2 per day."

Accordingly, it appears that Gloucester City has rescinded its OPRA policy.

John Paff
Somerset, New Jersey

-------- Original Message --------
Subject: RE: Just two OPRA requests per day in Gloucester City
Date: Tue, 11 Jan 2011 21:41:28 +0000
From: Starghill, Catherine
To: 'Walter Luers'

Mr. Luers,

Thank you for informing me of this matter. I spoke with the Gloucester City Acting Clerk and Town Solicitor this morning regarding their new OPRA policy. Thereafter, my staff sent the Town Solicitor links to the GRC website of published GRC decisions interpreting the "substantial disruption of agency operations" provision in OPRA.

In a very clear manner, I informed them both that the Acting Clerk may not limit the number of OPRA requests received in any given day. Further, I informed the Town Solicitor that the Acting Clerk may request an extension of the statutory response time when any one request legitimately requires more than the statutorily mandated seven (7) business days to fulfill. I gave the following examples of legitimate reasons for an extension of time to provide records under OPRA: (1) records are in storage, (2) records are archived, or (3) the request is so voluminous that additional time to make copies and/or redactions is required.

Finally, I emphasized to the Towns Solicitor the legislative findings that provides that all limitations on access be construed in favor of the public. Both the Acting Clerk and the Town Solicitor appear to understand the GRC's position and appreciate that their policy must be rescinded.

If you have any questions regarding the foregoing, please contact me at your convenience.


Catherine Starghill, Esq.
Executive Director
State of New Jersey
Government Records Council
tel: 609-292-6830 | fax: 609-633-6337