Wednesday, August 31, 2011

Atlantic judge rules that DWI videotape is disclosable under OPRA

Not every New Jersey court decision is published in the law books. The vast majority of them are considered "unpublished opinions" and "shall not constitute precedent or be binding upon any court." See Court Rule 1:36-3. Even though they're not binding, these unpublished decisions can be persuasive to other courts.

One potentially useful unpublished decision was authored by Atlantic County Superior Court Judge Carol E. Higbee on March 3, 2011 in the case of Charles W. Cain, Jr. v. Township of Hamilton. That decision, which is five pages long, is on-line here.  The Burlington County case that is referred to in Judge Higbee's decision is covered by my blog entry here.

The Plaintiff, Charles W. Cain, Jr., was a local, elected official who had been arrested for driving under the influence (DWI) by Hamilton Township (Atlantic County) police. Cain's field sobriety test was captured on the police car's dashboard mounted camera and the daily newspaper--the Press of Atlantic City--submitted an Open Public Records Act (OPRA) request for the video recording.

When Cain learned that the Press has asked for the recording, he sued Hamilton Township in an attempt to block the recording's release. He argued that the recording was a "criminal investigatory record" and exempt from disclosure. Judge Higbee, however, found that since DWI is not a "crime," the "criminal investigatory record" exception did not apply.

Rather, Judge Higbee found that the only relevant OPRA exception was Hamilton Township's obligation to safeguard personal information to which a citizen has a reasonable expectation of privacy. This privacy exception required the court to balance the public's need for disclosure against Cain's need for privacy.

Judge Higbee found that since Cain was an elected official, Township voters have a legitimate interest in his conduct and his compliance with traffic laws. She found that the public's interest in disclosure exceeded Cain's interest in privacy and thus released the recording.

Cain appealed the ruling but, according to media reports, the Appellate Division declined to reverse it.

Friday, August 26, 2011

Somerset Freeholders revise their closed session policy

If your local government officials aren't doing what the Open Public Meetings Act (OPMA) requires, one way to get their attention is to threaten to sue them.

That's what I did on August 11, 2011 when I discovered that the Somerset County Freeholders were discussing matters in closed session that should have been discussed in public and were keeping closed meeting minutes that lacked enough detail for the public to understand what was discussed.

So that the Freeholders realized that I wasn't making idle threats, I drafted a civil lawsuit and e-mailed it to the Board advising them that unless I heard from them or their attorney by Friday, August 26, 2011 (i.e. three days after the Freeholder Board's August 23, 2011 meeting), I would file my lawsuit "without further notice."

On August 26, 2011, at 4:37 p.m., I received a letter from Somerset County Counsel William T. Cooper, III providing me with a list of five changes that the Freeholders pledged to make to bring them within OPMA compliance. Mr. Cooper's letter, along with my draft lawsuit, is on-line here.

This is a good outcome because I was able to get compliance without having to burden the taxpayers (and myself) with the cost of litigation.

And, although it sounds difficult and may seem a bit intimidating, it's not really very hard to file a lawsuit without an attorney. I've done it several times and have found that, in most all cases, the courts haven't been hostile to a non-lawyered citizen and have actually been quite accommodating and helpful.

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

Thursday, August 25, 2011

OPRA decision in Hudson County

Update: The judge's holding was upheld in all respects by the Appellate Division on August 15, 2012.  Click here for opinion.
One of the things that I try to do is identify and call activists' attention to court cases that construe and apply the Open Public Records Act (OPRA), the Open Public Meetings Act (OPRA) and the common law right of access. Sometimes, these case are filed and adjudicated without anyone noticing.

One such case is Comprelli v. Town of Harrison, Docket No. HUD-L-1179-10. The complaint, two court orders and two written opinions by Superior Court Judge Bernadette N. DeCastro are on-line here.

Here's a thumbnail sketch of the case. Plaintiff owns commuter parking lot in Harrison (Hudson County), New Jersey and asserts that city officials are harassing him by visiting his parking lots daily and counting the number of cars parked there. He submitted records requests to see, among other things, whether his competitors were enduring similar daily inspections. The Town denies his requests for not being on an official OPRA form and for being overly broad. Plaintiff, through his attorney, completes the Town's OPRA form and repeatedly amends and clarifies the request to make it specific as possible. Ultimately, the Town fails or refuses to grant access to the vast majority of the requested records and maintains that the request is overly broad and that pending litigation between the parties permits the records to be withheld.

In her May 4, 2010 opinion, Judge DeCastro determined "plaintiffs have sufficiently amended their requests in a manner which would not require [Harrison] to guess the information that plaintiff is requesting." See rejected the Town's claim that pending litigation was relevant to the request. She also found that to the extent that the Town denied access to public meeting minutes, it violated OPMA. Finally, she found that "the Town has not articulated any concern form confidentiality of the requested records, and as such, there is no basis to withhold these records from plaintiff under the common law."

Plaintiff asked for the court to impose OPRA's civil penalty against the Town's custodian. Judge DeCastro, citing the unpublished Appellate Division opinion in Hirsch v. City of Hoboken, determined that the Superior Court does not have jurisdiction to impose civil penalties.

In her August 26, 2010 opinion, Judge DeCastro found: a) that hourly rate of $450, which was increased to $520 effective January 1, 2010 by lead attorney Paul H. Schafhauser of Herrick, Feinstein LLP was "reasonable and customary;" b) the request was "not a proper request" until it was submitted on the proper form curiously, the Court cites Renna v. Union County in reaching thsi conclusion); c) plaintiff was granted attorney fees of $28,951.36 for work done between March 26, 2010 and July 31, 2010 and d) that plaintiffs is entitled to additional fees for work done after July 31, 2010. In a January 4, 2011 Order, Judge DeCastro ordered the Town to pay an additional amount of fees and costs of $14,687.00.

According to Harrison Town Clerk Paul Zarbetski, the fee award has been appealed and that the trial court has, on July 7, 2011, stayed payment of the fees pending appeal.

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

Wednesday, August 24, 2011

Galloway Township OPRA request

I sent the following records request to Galloway Township (Atlantic County). I appears that some deal regarding the Township Clerk was arranged behind closed doors and that the Township is seeking to keep the details away from the public.

The newspaper articles mention in the request are on-line here and here

John Paff

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 and send all responsive documents to me via e-mail at paff@pobox.com. If e-mail is not possible, please fax responses and responsive records to me at 908-325-0129. Also, I would appreciate it if you would acknowledge your receipt of this e-mail.

Background:

In an earlier request, I asked for minutes of the July 18, 2011 Township Council closed session. I asked for these minutes after readings two Patch articles ("Galloway Township Appoints New Clerk" on August 23, 2011 and "Lisa Tilton Resigns as Township Clerk as Part of Deal Reached Monday Night" on July 19, 2011). A copy of my request and the Township's response is on-line here.

From reading those article, I learned that outstanding disciplinary charges against Tilton would be dropped in exchange for her resigning effective October 3, 2011. In addition to paying Tilton $3,800 for her attorney fees, the agreement "called for all charges pending against her to be dismissed with prejudice and expunged in exchange for her resignation." She will also receive a "neutral reference . . . when contacted by potential employers, including to state she resigned in good standing." This deal was hammered out during a seven hour executive session from which Mayor Hartman recused himself part of the way through.

According to the resolution that authorized the July 18, 2011 closed meeting, there were two issues to be discussed privately: a) "Township Clerk" and b) Chief Financial Officer." According to the resolution, the discussion related to the Clerk would only be publicly revealed as follows: "If employee is terminated, redacted minutes may be available in 60 days. If employee is not terminated, only pursuant to Court Order." For the private discussion related to the CFO, the discussion, as recorded in the minutes, would be release "only pursuant to Court Order."

The July 19, 2011 Patch article indicates that both Tilton and Township Manager Steve Bonanni received Rice notices. And, Deputy Mayor Don Purdy is quoted as saying that the issues involving Tilton and Bonanni "were handled simultaneously because the issues were intertwined. “One had to do with the other,” Purdy said. “We had to talk about Steve because Lisa brought him into it.”

Yet, the July 18, 2011 closed session resolution doesn't mention any issue involving Bonanni that needed to be privately discussed, so it is confusing as to how his issues, whatever they are, were legitimately discussed in closed session.

From what I've read so far, it appears that there was some major controversy that was settled, with taxpayer money, of course, that the Township is now seeking to keep secret. I would like for you to remember that the taxpayers--the ones who are footing the bill for all this drama--have a right to know the real story as to what's going on so that they can determine whether the Mayor and Council acted wisely and appropriately in making this deal with Tilton. These taxpayers vote, and they need to have information on what really happened so that they are fully informed when they cast their votes. My intent is to get the records that reveal what really happened and post them on the Internet so that the voting public can review them.

If you review the South Jersey Publishing case that is cited in your resolution, you might come to the conclusion--as I have--that at the very least, redacted versions of the July 18, 2011 closed meeting should be disclosed. Your decision to completely suppress the minutes until October 3, 2011 "with approval from the Solicitor and Council" appears to be out of step with the South Jersey Publishing ruling.

Be advised that if you continue to withhold the information I seek, I will likely litigate this matter.

Records Requested:

1. Minutes of the July 18, 2011 closed Council meeting, redacted as narrowly as possible, if at all.

2. Rice notice sent to Tilton

3. Rice notice sent to Bonanni

4. Tilton's written response to Rice Notice, if any.

5. Bonanni's written response to Rice Notice, if any.

6. Settlement agreement with Tilton.

7. Disciplinary charges against Tilton, and her or her lawyer's written responses to those charges, redacted as narrowly as possible, if at all.

Thank you!

Monday, August 22, 2011

Friday, August 5, 2011

Bergen Judge orders officials to stop using personal e-mail accounts

In an August 4, 2011 decision, Bergen County Superior Assignment Court Judge Peter E. Doyne considered, among other issues, the question of public officials using private e-mails to discuss public business. Judge Doyne ultimately concluded that using personal e-mail accounts for public business "appears highly questionable" and "order[ed] counsel for [the municipality] to circulate a memorandum among all pertinent Borough employees directing they use only their public e-mail accounts, rather than private accounts, when conducting town business."

This is the first such holding of which I'm aware and it may be useful in convincing other government officials to sent official e-mail communications solely through their governmental e-mail accounts. Judge Doyne's decision is on-line here.

Many thanks to Kevin M. O'Brien, who filed and prosecuted this lawsuit without the aid of an attorney.

Burlco Prosecutor: Evesham official "unwittingly" violated Sunshine Act

In an August 4, 2011 letter to the attorney for the Eveham Township Council, Burlington County Prosecutor Robert D. Bernardi said that "Evesham Township officials did unwittingly run afoul of the prohibitions contained in the Open Public Meetings Act" by discussing public business by way of e-mail communications. Prosecutor Bernardi, however, declined to impose fines against the officials because that it was a not a "knowing" violation and that "educating public officials who may have mistakenly violated the provisions of the statute is far more effective than the imposition of nominal fines."

The prosecutor's letter, which is on-line here, was sent in response to a complaint filed by the New Jersey Libertarian Party's Open Government Advocacy Project.

Thursday, August 4, 2011

Collingswood defends practice of introducing ordinances that haven't yet been written

N.J.S.A. 40:49-2 specifies the procedure a municipality must follow to pass an ordinance. First, the governing body must introduce the ordinance at a public meeting (called a "first reading") and publish the fact that the ordinance was introduced. Second, not less a week after introduction, the proposal can be given a "second reading" at a public meeting, where after a public hearing, the governing body may vote to enact the ordinance.

The statute, however, presumably to save meeting time and publishing costs, does not require the municipality to read and publish the proposed ordinance in its entirety. Rather, the law allows the proposed ordinance to be read "by title" and published "by title" along with a "concise statement prepared by the clerk of the governing body setting forth the purpose of the ordinance, and the time and place when and where a copy of the ordinance can be obtained without cost by any member of the general public who wants a copy of the ordinance."

While this seems fairly clear, the Borough of Collingswood (Camden County) is interpreting the statute to permit the Borough to introduce ordinances that have not yet been reduced to writing.

According to a June 24, 2011 article by Brett Ainsworth of The Retrospect (http://theretrospect.com), the Collingswood Board of Commissioners introduced "by title" an ordinance governing outdoor cafes at its Monday, June 20th meeting. On Wednesday, June 22nd, Ainsworth asked borough administrator Brad Stokes for the text of the cafe ordinance that had been formally introduced two days earlier. Stokes advise him that since the statute permits ordinances to be introduced by "title only," the Borough was allowed to formally introduce the ordinance even though it had not been written down. A July 1st article by Ainsworth attributes to Mayor Collingswood Mayor Jim Maley the position that "the practice of introducing measures without a completed written version has been done for years in the borough and is perfectly legal."