Thursday, December 27, 2012

20 years later: Still Unclear on Local Prosecutors' and PDs' Duty to File Financials

By statute (N.J.S.A. 2B:25-4 and 2B:24-3), every New Jersey municipal court must have at least one municipal prosecutor and at least one municipal public defender.  Since these positions are common to almost every municipality in the state, one would think that question of whether the holders of these offices are "local government officers" who are required by the New Jersey Local Government Ethics Law (LGEL) to file an annual "Financial Disclosure Statement" has long ago been settled.  Unfortunately, there is still confusion regarding the prosecutors' and public defenders' filing requirements, which is distressing since the LGEL became effective on May 21, 1991--over twenty years ago.  Simply put, I don't think that it's unreasonable to expect most towns to be on the same page as to what the law requires after that law has been in existence for over twenty years.

But, if you submit an Open Public Records Act (OPRA) request with your town, as I did with Morris Township (Morris County), seeking the Financial Disclosure Statements filed by the prosecutors and public defenders, don't be surprised if you are told, as I was, that the prosecutor and defender are exempt from the filing requirement because the Attorney General, in 1991, deemed them to be "court personnel" who are not required to file. But, the Attorney General Opinion Letter that these towns invariably rely upon, AO-91-0096, contains a very important footnote on page 6 stating that "a municipal court prosecutor and a municipal court public defender are not considered part of the judicial branch of government."  In other words, while municipal court judges and administrators are exempted by the Opinion Letter from the filing requirement, prosecutors and defenders are not.

When I first realized, in 2008, that many municipal governments had not read AO-91-0096 correctly, I wrote to the Local Finance Board within the Division of Local Government Services and suggested that "there shouldn't be such uncertainty over this rather straightforward issue" and invited the Board to "clearly decide the question and to publicly disseminate its decision so that municipal clerks and prosecutors around New Jersey can be properly guided."  My August 21, 2008 letter to the Board, which is available here, has never received a response.

Accordingly, more than four years later, I am still slugging it out--one municipality at a time--over the issue of whether prosecutors and public defenders are required to file.  I frequently find cases like Morris Township, where the officials genuinely are confused by the ambiguity in the law and, after reading my correspondence, decided that I was right and required their prosecutor and public defender to make their financial filings. My letter to Morris Township and the Township's response are on-line here. (I don't mean to impugn Morris Township officials by this posting as they were simply abiding by the vague and incomplete information that the state gave them and are probably as frustrated as I am over state agencies' inability or unwillingness to clarify the policies that the agencies expect the municipalities to enforce.)

What does concerns me, however, is that it shouldn't be so difficult for a citizen who recognizes a general problem with the execution of a statute to get the agency in charge of that statute to resolve the problem.  All the Local Finance Board would need to do is issue a simple bulletin (or Local Finance Notice) to each municipality in the state (the Board issues such notices regularly) advising them of the ambiguity and instructing the municipalities on how to deal with it.  And, while the filing or non-filing of a Financial Disclosure Statement by municipal prosecutors and defenders may not be the biggest problem confronting New Jersey, it does underscore a problem that plagues us in New Jersey and beyond--a total lack of expectation for anything resembling excellence, or even competence, within many of the institutions that churn out the reams of the sometimes conflicting, and often vague, regulations that we are required to live under.

I am sending a copy of this posting to the Local Finance Board, in hopes that they will deem it appropriate to issue the Local Finance Notice that would clarify this matter.  In the meantime, I'll keep proceeding as I have--one town at a time.

Sunday, December 23, 2012

Publishing the "amount" of no-bid government contracts

Many local governments, annoyingly, do not publish the "amount" of their no-bid government contracts in the newspaper, even though such is required by statute.  Following is my letter to the Division of Local Government Services (within the Department of Community Affairs), seeking across-the-board enforcement of this requirement.

I explain in my letter how citizen enforcement of New Jersey's so-called "Pay to Play" laws is stymied when local governments do not publish the "amounts" of their no-bid contracts.
----------------------------------------------------------------------------------------------------------------
December 23, 2012

Thomas Neff, Director
Division of Local Government Services
(via e-mail only)

Dear Mr. Neff:

As you are aware, N.J.S.A. 40A:11-5(a) requires local governments, each time they award a no-bid contract for professional services, to place a notice of the award in the local newspaper.  The statute specifies that the notice shall contain "the nature, duration, service and amount of the contract."  (Emphasis added).

Unfortunately, many municipalities do not report the "amount" of the no-bid contracts they award and instead only advise the public, through the local paper, that the no-bid contracts, which would disclose the amount, are available for inspection at the town clerk's office.

An example of this is found in the January 13, 2011 public notice published in the Gloucester County Times by the Township of Deptford (on-line here).  As you can see, the notice recites a number of no-bid contracts awarded to professionals, but does not disclose the "amount" of any of them.

Since the statute requires the "amount" of each no-bid contract to be published, your office, without more, should be willing to enforce that requirement against entities, such as Deptford, that violate the rule.  But, I would like to explain the practical difficulties  that I--as well as others--face when this requirement is not obeyed.

One of the professionals to which Deptford awarded a contract is Michael J. Silvanio, Esq., who was appointed on January 3, 2011 as Deptford's "conflict prosecutor."  Yet, Silvanio, on October 14, 2010, contributed $500 to Deptford Township Democratic Executive Committee (see the Election Law Enforcement Commission report, on-line here).

If Silvanio was awarded the contract under a "non fair and open process" (i.e. one without competitive proposals being received), then it would be legal for him to have made this contribution only if the amount of the awarded contract did not exceed $17,500.  Thus, in order for me or others to know whether or not the so-called "Pay-to-Play" laws have been violated, we need to know the "amount" of each no-bid contract that is awarded. 

Since Deptford has not abided by the statutory requirement, anyone who wants to determine whether or not the law has been violated needs to submit an OPRA request to Deptford in order to learn the amount of Silviano's contract--something that we should be able to learn simply by reading the newspaper.

Would the Division distribute a Local Finance Notice, or otherwise remind local governments of the statutory requirement to include the "amount" of each professional services contract they award within the legal notice published in the local newspaper?  If not, would the Division at least remind Deptford of this responsibility?

Thank you for your attention to this matter.  I look forward to hearing from you.

Sincerely,

John Paff, Chairman
New Jersey Libertarian Party's
Open Government Advocacy Project
Phone: 732-873-1251
E-mail: paff@pobox.com

cc. Hon. Paul Medany, Mayor and members of the Deptford Township Council (via e-mail to dzawadski@deptford-nj.org)

Saturday, December 22, 2012

My letter to Glassboro's auditor

I question whether Glassboro Borough (Gloucester County) is appropriately awarding Conflict Public Defender positions to local attorneys without (apparently) entering into written contracts with them or publishing the awards in the newspaper.  So, I took some time today to write to the Borough's auditor about this problem (see my letter below).

Funny thing. Not until I was almost done with the letter did I happen to check the Election Law Enforcement Commission (ELEC) website and learn that the auditor himself recently contributed $3,000 to the campaign of two incumbent Glassboro council members.  See the third page of the document that is on-line here.

This financial connection made me lose a bit confidence in the auditor's ability to objectively review Glassboro's policy!

--forwarded message
December 22, 2012

Nick L. Petroni, RMA
Petroni & Associates
21 W. High St.
Glassboro, NJ 08028
via e-mail only to nlp@petroni.com

RE: Borough of Glassboro--Conflict Public Defenders

Dear Mr. Petroni:

I understand that you are the auditor for the Borough of Glassboro in Gloucester County.  I reach out to you in that capacity because I believe that the Borough may not be appointing its Conflict Public Defenders in a proper manner.

As can be seen by the purchase orders (on-line here), the Borough is paying out thousands of dollars for Conflict Public Defenders.  (The purchase orders at the link above, submitted by Michael Silvanio, Esq. and  John C. Iannelli, Esq., are illustrative only, and represent only part of the $6,800 that was paid out so far in 2012 for Conflict Public Defenders.)

Yet, as can be seen by the Borough's hand-written responses to paragraphs 2 and 3 of my OPRA request (on-line here), there are no contracts, resolutions or published newspaper advertisements relating to the Borough's award of Conflict Public Defender jobs to Silvanio and Iannelli.  As you can see from the legal advertisements (on-line here), other municipalities, including nearby Franklin Township, formally award Conflict Public Defender positions and advertise those appointments in the newspaper.

Glassboro's policy of having no apparent formal process for awarding taxpayer money to Silvanio and Iannelli is troubling for at least two reasons.  First, according to the purchase orders, both Silvanio and Iannelli are charging the taxpayers $200 per case or hour.  But, what writing establishes that the correct rate is $200 as opposed to $150 or some other number? (Note that according to its public notice, Egg Harbor is paying its Conflict Public Defender only $95/hour.)  Also, both Silvanio and Iannelli are frequent contributors to area political campaigns, as shown by the Election Law Enforcement Commission reports (on-line here) While neither reportedly gave money directly to Glassboro municipal candidates, their donations show that they are participants in local party politics, which is all the more reason that the public should be informed of the fact that these attorneys are being paid with public dollars.

I hope that you will evaluate the propriety of Glassboro's practice.  If you find that Glassboro's procedure is not legal or appropriate, I ask that your audit report recommend an amendment.

Very truly yours,

John Paff

cc. Mayor McCabe and the Borough Council, (via e-mail to the Borough Clerk at PFrontino@glassboro.org)









Thursday, December 20, 2012

NJ Motor Vehicle Crash data on-line

At last night's New Jersey Foundation for Open Government (NJFOG) meeting, I learned that New Jersey keeps a comprehensive database of motor vehicle accident data on the Internet here.   I'm posting this for those might find it useful to know, for instance, how many school bus accidents occurred in a given county or town within a given year.

I played with the data for a while to see if it might help me isolate accidents in which government vehicles were involved.  Just for fun, I decided to see how many car accidents took place in Neptune Township (Monmouth County) during 2011 in which at least one of the vehicles was a police car.  I found ten such accidents and have listed them in the PDF file I've placed on-line here.  If I wanted to, I could now OPRA each of the accident reports to learn more about what exactly occurred in these accidents.

I didn't need any special software to do this, I used a text editor, a text sorting program, both of which I got for free off the Internet, and Excel (which I already have) to format the PDF file.  Without getting into too much detail, here are the basic steps I took:

1.  Went to the above listed site and downloaded the "raw data" from Monmouth County in 2011.  I downloaded two files, "Accident" and "Vehicle."

2. Using the "Vehicle Table" and "Accident Table" on the same site, I learned the various column positions within each file at which certain data fields began.

3. Also at the site, I looked up "County and Municipal Codes" and learned that Neptune Township's code is 1334.

4. I sorted the "Vehicle" file on columns 4-7.  Then I opened up the "Vehicle" file in my text editor and deleted all the accidents that happened somewhere other than 1334 (Neptune Twp).  This gave me a more manageable file to work with that contained only vehicles involved in accidents in Neptune Township.

5. I sorted the resulting file on columns 130-131, which is the two digit code for "Special Function Vehicles."  This allowed me to filter for police cars ("02"), fire/rescue ("04"), ambulances ("05"), school buses ("09"), etc.

6. I then boiled the file down to just 10 entries in which police cars were involved.  I then searched the "Accident" file for each of the unique "Police report number" from those 10 entries to get more information for the attached table.  If I wanted, I could have searched the "Driver" file in the same manner and gotten other information, such as the drivers' dates of birth, whether summonses were issued, etc.

There are probably better ways to do this, but this is what I can do with my limited computer skills.

Wednesday, December 12, 2012

Unpublished trial court OPRA opinion

"Unpublished opinions" are not published in the law books and are not ordinarily written about in legal periodicals. Unless somebody puts them on-line and calls attention to them, they are likely not to be located by people who may want to search for them. I think that it's important that court opinions, even if they are not precedential, are easily accessible for future use.

Rivera v. Bergen County Prosecutor's office
Bergen County, Docket No. BER-L-4310-12
Hon. Peter E. Doyne, A.J.S.C.
December 11, 2012
Click here for the opinion.

Judge Doyne's opinion clearly and comprehensively explains the law regarding attorney fee awards to successful Open Public Records Act (OPRA) plaintiffs.  Among the issues discussed are: a) paying a lawyer's full hourly rate for work that can be done by a secretary or paralegal, b) paying a lawyer's hourly rate for travelling back and forth to the courthouse, c) paying a lawyer for the time it takes to prepare the lawyer's fee application, d) reducing a lawyer's fee when he or she is less than 100% successful and e) paying a lawyer a "contingency fee enhancement" in addition to his or her regular hourly rate multiplied by the number of hours worked.

Monday, December 10, 2012

State: Parsippany Mayor's letter, on Township letterhead, asking judge for "leniency" was within ethical bounds.

In a November 21, 2012 letter, Local Finance Board Chairman Thomas H. Neff reported that Board cleared Parsippany Mayor James Barberio of ethical wrongdoing for writing a Superior Court judge a letter on Township letterhead asking for leniency for a friend's 26-year old son who was facing drug charges.  In his letter, Neff noted that "Mayors have no direct statutory involvement with the selection of Superior Court judges or county prosecutors."  Neff further stated that "elected officials do not, upon taking office, give up their right to support friends and neighbors that other community members may provide."  After finding that Mayor's letter did not violate the Local Government Ethics Law, the Board "voted to dismiss the complaint as having no factual basis."

The ethics matter was initiated by a January 19, 2012 complaint by John Paff, Chairman of the New Jersey Libertarian Party's Open Government Advocacy Project.  Paff's complaint was based on two articles (here and here) that he had read in the Parsippany Patch. According to the articles, Barberio wrote to Superior Court Judge David H. Ironson on behalf of Daniel Moses, the son of Barberio's friend, who was facing sentencing after pleading guilty to conspiracy to distribute eight pounds of marijuana.  According to the articles, the letter, which was written on Township letterhead, said "I hope the court will be as lenient as possible when sentencing Daniel ..."  A member of the public criticized Barberio for using Township letterhead because the leniency request "does not represent the citizens of Parsippany."  Also, according to the articles, an unnamed Morris County assistant prosecutor stated that the letter was inappropriate because the Parsippany-Troy Hills Police Department was involved in the investigation and prosecution of Moses.

According to the articles, Township attorney John Inglesino wrote that questioning the appropriateness of the letter revealed a lack of knowledge regarding how the legal system works.  Justin Marchetta, an associate in Inglesino's law firm, is quoted as saying that Mayor Barberio's letter was "legal, ethical and appropriate."

The complaint and the Local Finance Board's determination are on-line here.

Monday, November 26, 2012

Court invalidates action taken at Development Board's special meeting

In a October 26, 2012 decision, Hunterdon County Superior Court Judge Peter A. Buchsbaum voided the findings and resolutions the Hunterdon County Agriculture Development Board made at its August 9, 2012 meeting.  Buchsbaum faulted the Board's meeting notice which did not: a) inform the public "whether formal action may or may not be taken" and b) did not include the agenda of the meeting "to the extent known." Both of these requirements are set forth in N.J.S.A. 10:4-8(d).  In ruling on the agenda, Buchsbaum found that the Board's "agenda is not merely deficient -— it is nonexistent."  The opinion in this case, Bailey v. Hunterdon County Agriculture Development Bd., 2012 WL 5830158, Docket No. HNT-L-354-12, is on-line here

Unfortunately, Buchsbaum did not award the pro se plaintiff, Marie Bailey, her costs resulting in her being reimbursed the $250 or so that she paid in filing fees to bring this action.  In so ruling, Buchsbaum held that "[u]nlike the Open Public Records Act, OPMA provides no provision for attorney’s fees. Compare N.J.S.A. 47:1A-6. Plaintiff cites to no rule which provides any basis for said reimbursement."  With all due respect, I believe that the judge erred.  I have been awarded costs in many of my pro se OPMA lawsuits under the authority of Gallo v. Salesian Soc., Inc., 290 N.J. Super. 616, 660 (App. Div. 1996) in which the Appellate Division stated:
R 4:42-8(a) provides: “Unless otherwise provided by law, these rules or court order, costs shall be allowed as of course to the prevailing party.” The judge here expressly found that plaintiff was a prevailing party.  He should have awarded her costs “as of course” under the rule.


OPMA suit filed in Hunterdon County

On November 8, 2012, a Pittstown woman, working without an attorney,  filed an Open Public Meetings Act (OPMA) lawsuit against the Franklin Township (Hunterdon County) Land Use Board.  A copy of the lawsuit, captioned Bailey v. Franklin Township Land Use Board, Docket No. HNT-L-617-12, is on-line here.

In her suit, Marie Bailey alleges that the Board notified only one newspaper, instead of the two required by N.J.S.A. 10:4-8(d), of an upcoming special meeting.  She also alleges that the Board violated the OPMA by not providing her with draft minutes of the special meetings when she requested them over a month after the meeting took place. 

The matter has been assigned to Hon. Peter A. Buchsbaum and there are currently no proceedings scheduled.

Saturday, November 24, 2012

Fire District found to have violated Meetings Act, ordered to pay attorney fees

On November 15, 2012, a Superior Court judge declared that the Franklin Township (Somerset County) Fire District No. 2 Board of Commissioners violated the Open Public Meetings Act (OPMA) by failing to prepare public work-session meeting minutes from April 13, 2011 through August 2, 2012. 

In Carroll v. Fire District No. 2, Docket No. SOM-L-1274-12, Assignment Judge Yolanda Ciccone declared that the Board's failure to prepare or produce these minutes violated the OPMA, but declined to order the Board to comply with the OPMA going forward.  Ciccone also ordered the Fire District to give the plaintiff audio tapes it had on file for six of the meetings for which minutes were not produced, and held that the plaintiff was the "prevailing party" under the Open Public Records Act (OPRA) and ordered the Fire District to pay her court costs and attorney fees.

A copy of Ciccone's order is on-line here.

Unpublished Trial Court OPRA opinion

"Unpublished opinions" are not published in the law books and are not ordinarily written about in legal periodicals. Unless somebody puts them on-line and calls attention to them, they are likely not to be located by people who may want to search for them. I think that it's important that court opinions, even if they are not precedential, are easily accessible for future use.

I have converted the scanned opinion to a searchable text version. A link to the scan is contained within the footer to the live document.

    Paff v. Atlantic County Alliance
    Atlantic County, Docket No. ATL-L-4089-12
    Hon. James P. Savio, J.S.C.
    November 16, 2012
    Click here for the opinion.
  
Primary Holding: the Atlantic City Alliance, a private, not-for-profit corporation that the Casino Reinvestment Development Authority, a government agency, is statutorily required to contract with, is not a "public agency" as defined by the Open Public Records Act (OPRA)

Wednesday, November 21, 2012

Are police incident reports subject to disclosure under OPRA?


On November 21, 2012, I filed an Open Public Records Act (OPRA) lawsuit against the Borough of Manville in Somerset County. Attorney Richard Gutman is representing me in this lawsuit, which is on-line here.

My suit challenges the Borough's denial of access to police incident reports relating to two men being charged with public consumption of alcohol.  The Borough posits that the reports are "criminal investigatory records" and thereby exempt from disclosure.  But, OPRA defines "criminal investigatory records" as those that "pertain to any criminal investigation or related civil enforcement proceeding."  I believe that this exemption doesn't cover records of investigations of municipal ordinance violations.

Further, the definition excludes police records that are "required by law to be made, maintained or kept on file."  The New Jersey Destruction of Public Records Law and the regulations and scheduled adopted under that law require police incident reports to be maintained for a specific period of time.  Accordingly, the requirement that police reports be "maintained" take those reports out of the scope of the "criminal investigatory record" definition.  This argument has been accepted by the Bergen County Superior Court, which was affirmed by the Appellate Division, in North Jersey Media v. Paramus but was rejected by the Union County Superior Court in Renna v. Union County.  Hopefully, my lawsuit against Manville will help clarify this point of law.  (Both the Bergen and Union cases are attached as exhibits to my lawsuit.)

Monday, November 19, 2012

What to do if a public body disobeys a court order?

As regular readers know, I sue public bodies for violating the Open Public Meetings Act (OPMA)  and sometimes obtain a court order, either by settlement or the judge's adjudication, requiring the public body, going forward, to take better minutes, produce its meeting minutes more promptly or otherwise improve its OPMA compliance.  But, what can a citizen-plaintiff do when a public body subject to such an order elects to disobey it? 

In February of 2008, I obtained a court order requiring the Lawnside Borough Council (Camden County), among other things, to record "reasonably comprehensive" executive session minutes that "contain an account and identification of matter discussed and action taken." I filed my suit because the Council's executive minutes were so terse and vague that they were useless.  Background and case documents on my suit are available here.

In December 2011, after learning that the Lawnside Council, despite the court order, was still recording vague and terse executive minutes, I wrote to the Borough Attorney, Morris Smith, and advised him that if the Council didn't make its minutes compliant with the court's 2008 order, I would take enforcement action against it.  Unfortunately, the Lawnside Council's May 30, 2012 and June 6, 2012 minutes were still noncompliant, so attorney Walter M. Luers, on by behalf, filed a "Motion to Enforce Litigants' Rights" against the Borough.  That motion and supporting documents are on-line here.

The court rule that provides for such motions, fortunately, permits the court to make Lawnside pay my costs and attorney fees for filing and prosecuting this motion.  While the award of costs and fees is within the court's discretion, I hope that the court does order the town to pay since that will encourage me and other OPMA plaintiffs to seek the court's assistance to ensure that the court's orders are followed.  If, however, the court declines to make the town pay my costs, that will burden successful OPMA plaintiffs with the costs of enforcement, thus allowing public bodies to more easily ignore court orders.

Unless Lawnside and I come to a mutually acceptable agreement, my motion will be heard in Camden on Friday, December 21, 2012.  The hearing, of course, is open to the public, but those who wish to attend are cautioned to telephone the court at 856- 379-2234 the day before the hearing to make sure that it hasn't been postponed or cancelled.  Refer to Paff v. Lawnside, Docket No. CAM-L-7027-06.

Wednesday, October 10, 2012

OPMA hearing in Woodbury, November 29, 2012

On Thursday, November 29, 2012 at 9:30 a.m., Superior Court Assignment Judge Georgia M. Curio will conduct an Order to Show Cause hearing at the courthouse in Woodbury in a local citizen's Open Public Meetings Act (OPMA) lawsuit against the Washington Township (Gloucester County) Board of Education.  At issue in the suit is the legality of the school board's closed session discussion of a board member's receipt of campaign contributions from an engineering firm hired by the school district.  The lawsuit and related paperwork is on-line here

The hearing is open to the public, but those who wish to go are advised to call Judge Curio's office at 856-686-7533 the day prior to the hearing to ensure that the hearing hasn't been postponed.  Refer to Mello v. Murphy, Docket No. GLO-L-1403-12.

Thursday, October 4, 2012

The Port Authority is not subject to OPRA

UPDATE: The conclusion reached in this post has been superseded by the June 26, 2015 enactment of P.L. 2015, Chapter 64 which, along with a similar enactment in New York, made the Port Authority subject to OPRA.
Today, October 4, 2012, the Appellate Division ruled that the Port Authority of New York and New Jersey is not subject to the Open Public Records Act (OPRA).  In its ten-page opinion, available here, the court found that since the Authority was created jointly by both New York and New Jersey, it is not subject to the statutory law of only one state. This decision, of course, is not good for open government.

The Port Authority recently denied me access to the settlement agreement arising out of Hannah Shostack v. Port Authority, Federal Case No. 2:11-cv-00177. Shostack, who used to work for the Authority, was fired "without notice or cause" on August 11, 2010.  While the Port Authority told her that her position was being eliminated, Shostack claimed in her lawsuit, which is available on-line here, that the real reason she was fired was because "she is not affiliated with the Republican Party and/or the administration of Republican Governor Chris Christie."  In her lawsuit, Shostack alleged that her supervisor "Chris Russell informed her that the decision to discharge her came straight from Governor Christie's office and there was nothing he could do to save her job."  Her suit claims that at about the same time she was fired, several other employees who were not affiliated with the Republican Party were also fired.

New Jersey Courts have held that disclosure of lawsuit settlement agreements serves the public interest. Burnett v. County of Gloucester, 415 N.J. Super. 506, 517 (App. Div. 2010) ("We find the public interest in settlements to be a significant one, since such settlements may provide valuable information regarding the conduct of governmental officials and the condition of government property.") Yet, the Port Authority's records custodian, Daniel D. Duffy, in his September 5, 2012 denial letter, claimed that the settlement agreement was "exempt from disclosure pursuant to Exemption (3) of the [Port Authority's Freedom of Information] Code" which exempts sensitive records that "are compiled for public safety, law enforcement or official investigatory (internal or external) purposes."  This is clearly erroneous, but according to the Authority's FOIA code, Duffy's decisions are "final."


Knowing the amount of money that Shostack received in her lawsuit settlement for is especially important because she alleges, in essence, that the Port Authority is filled with political patronage jobs that the sitting governor can award to his supporters and cronies.  If Shostack received, say, a $500,000 settlement, the public could reasonably draw an inference that there was some truth to her allegations.  If she received, however, $10,000, the public could reasonably disregard her claims as nothing more than sour grapes.

Unfortunately, the Port Authority doesn't want the public to know the settlement information and New Jersey courts, in today's ruling, have upheld the Port Authority's ability keep the public in the dark.

Wednesday, October 3, 2012

Borough places OPRA requestor in the cross-hairs.

On October 1, 2012, the Borough of Pine Hill (Camden County) asked a federal judge to allow it to seek civil damages from an Open Public Records Act (OPRA) requestor who obtained records that led to an invasion of privacy lawsuit currently pending against the Borough.  The documents relating to this matter are on-line here.

According to the court filings, in October 2011, Gloucester City resident John Schmidt submitted an OPRA request to the Borough of Pine Hill seeking documents relating to a wrongful termination lawsuit filed against the Borough by a Borough employee.  While Schmidt's request was for motions and briefs filed in the lawsuit, Pine Hill provided him with some documents that were not within the scope of his request that contained "confidential and private information" which the employee claims was "intentionally released [by the Borough] to embarrass and cast [the employee] and his family in a poor light."   The records the Borough disclosed to Schmidt allegedly contained the employee's children's social security numbers, information suggesting that the employee's wife abused prescription medication and that acts of domestic violence occurred at the employee's residence.

In its October 1, 2012 filing, the Borough contends that its release of this confidential information to Schmidt was "inadvertent" and that Schmidt "intentionally disclosed and transmitted that information to others, including a newspaper reporter."  Accordingly, the Borough wants to bring Schmidt in as a defendant in the lawsuit so that he is forced to contribute to any monetary damages that the Borough may be required to pay as a result of the employee's family invasion of privacy lawsuit.  In other words, Pine Hill is seeking to make Schmidt financially liable for allegedly redistributing the same information that the Borough itself had no right to disclose.

Pine Hill's bid to bring Schmidt into the lawsuit will be determined at a November 5, 2012 court hearing.

Tuesday, October 2, 2012

Unpublished Trial Court OPRA opinion

"Unpublished opinions" are not published in the law books and are not ordinarily written about in legal periodicals. Unless somebody puts them on-line and calls attention to them, they are likely not to be located by people who may want to search for them. I think that it's important that court opinions, even if they are not precedential, are easily accessible for future use.

I have converted the scanned opinion to a searchable text version. A link to the scan is contained within the footer to the live document.

    Anonymous v. Borough of Longport
    Atlantic County, Docket No. ATL-L-9552-11
    Hon. Nelson C. Johnson, J.S.C.
    August 17, 2012
    Click here for the opinion.
   
Primary Holding: Anonymous records requestors may not enforce the Open Public Records Act (OPRA) in Superior Court unless they public identify themselves. 

Saturday, September 29, 2012

OPRA lawsuit filed over "sealed" settlement agreement

Through attorney Richard Gutman of Montclair, I recently filed an Open Public Records Act (OPRA) lawsuit against Lawrence Township (Mercer County) for denying me access to a settlement agreement arising out of a Township police officer's race discrimination lawsuit against the Township.  The position taken by the Township is that the settlement agreement, which arose out of the officer's federal court action, was "sealed" by a May 4, 2012 order of the Mercer County Surrogate.  When I asked Lawrence for a copy of the Surrogate's Order that allegedly sealed access to the settlement,  I received an almost completely redacted version of the Surrogate's order.

My case was assigned to Mercer County Superior Court Mary C. Jacobson, the same judge who entered the May 4, 2012 sealing order.  Judge Jacobson has scheduled an Order to Show Cause hearing for my case on Friday, November 16, 2012, 2 p.m., at the Mercer County Courthouse in Trenton.  Case documents are on-line here.

Tuesday, September 11, 2012

Union County pays $16,070.61 to Plaintiff's lawyer in OPRA case

On September 1, 2012, I posted a blog entry regarding a successful Open Public Records Act (OPRA) lawsuit by Cranford resident Tina Renna against the County of Union. At issue was the county's refusal to provide Renna with the home addresses of citizens who voluntarily signed up for a government newsletter.  I noted in that entry that the County had appealed the trial judge's order to both the Appellate Division and the Supreme Court.

Thereafter, I submitted a request for records relating to how much money, in total, the County paid in legal fees to both its own lawyer and Ms. Renna's lawyer.  The county advised me that since its attorney handled the matter "in-house" it paid no legal fees beyond the attorney's regular salary.  However, the County did disclose that it paid a total of $16,070.61 in attorney fees and costs to Walter M. Luers, who was Ms. Renna's attorney.

The documents the County provided, which are on-line here, show that Mr. Luers was paid $7,064 in costs and fees for winning the case at the trial level, of which he refunded $859.35 after the Appellate Division reversed the trial court's enhancement of his fee.  Mr. Luers was then paid $8,317.71 and $1,548.25 for defending Mr. Renna's success in the Appellate Division and the Supreme Court, respectively.



Monday, September 10, 2012

Township defends its tax-challenged municipal attorney

On July 18, 2012, I wrote to Mayor Elmer "Skip" Bowman and the Lawrence Township (Cumberland County) Committee about their municipal attorney, Thomas E. Seeley, Esq., having hundreds of thousands of dollars in federal tax liens docketed against him.  I made my inquiry after learning that the Internal Revenue Service (IRS) had served notices of levy seizing the money that the Township owed Mr. Seeley for his legal services.  I asked the Mayor and Committee three questions:

  1. Why the Township was still paying Mr. Seeley's law firm thousands of dollars even though the levy documents apparently demanded that all of Mr. Seeley's income be given to the IRS.
     
  2. Which lawyer (hopefully not Mr. Seeley), if any, advised the Township on how to handle the levy.
     
  3. Why the Township elected to retain a lawyer who has so many legal and tax problems when many other lawyers don't have these problems.
On September 10, 2012, I received the Township's response which focused mainly on my third question. The Township stated that it is happy with Mr. Seeley's services and feels that his personal financial issues aren't relevant to his service to the Township.   As for my first question, the Township stated only that they felt that they were correctly paying Mr. Seeley and the IRS.  And, the Township didn't respond at all to my second question.

My correspondence with Lawrence Township is on-line here.  The tax levies themselves are on-line here.

Case of man arrested for disrupting public meeting to be heard tomorrow

Update:  The Tinton Falls Municipal Court advised me on 10/09/12 that Mahedy was found "not guilty."  See disposition here.
According to Megan Thomas, Administrator of the Tinton Falls (Monmouth County) Municipal Court, State v. Tom Mahedy will be heard at noon on Tuesday, September 11, 2012 in the municipal courtroom at 556 Tinton Avenue, Tinton Falls.

Mr. Mahedy was arrested for disorderly conduct at the December 21, 2011 public meeting of the Fort Monmouth Economic Revitalization Authority (FMERA) when he refused to leave the podium during the public comment period.  According to a December 29, 2011 article in the Hub (see link below), FMERA Chairman James Gorman called police after Mahedy allegedly failed to keep his comments brief and on agenda items only.  According to the article, Gorman also required Mahedy to "not repeat anything you have said and has been addressed at prior meetings.”

The police officer allegedly gave Mahedy a chance to avoid arrest if he left the meeting room.  After he reportedly cried “I have studied this [Memorandum of Agreement] for hours! I have a right to speak" he was taken into custody after a brief struggle.

The article is on-line here.

The public is welcome to attend and observe the hearing. Those who wish to attend may want to call Administrator Thomas at 732-542-3400 X 201 the morning of the hearing to insure that it hasn't been postponed.

Saturday, September 1, 2012

Unpublished Trial Court OPRA opinion

"Unpublished opinions" are not published in the law books and are not ordinarily written about in legal periodicals. Unless somebody puts them on-line and calls attention to them, they are likely not to be located by people who may want to search for them. I think that it's important that court opinions, even if they are not precedential, are easily accessible for future use.

I have converted the scanned opinion to a searchable text version. A link to the scan is contained within the footer to the live document.

    Tina Renna v. County of Union
    Union County, Docket No. UNN-L-2589-10
    Hon. Kathyrn A. Brock, J.S.C.
    September 14, 2010
    Click here for the opinion. 

Holding: Home addresses of citizens who voluntarily signed up for a government newsletter were subject to disclosure under the Open Public Records Act.

Also available at the above link is the Appellate Division's decision that affirmed Judge Brock's decision regarding disclosability of the records but reversed and remanded her decision to enhance Plaintiff's attorney fee award.

Friday, August 17, 2012

Unpublished trial court OPRA opinion

"Unpublished opinions" are not published in the law books and are not ordinarily written about in legal periodicals. Unless somebody puts them on-line and calls attention to them, they are likely not to be located by people who may want to search for them. I think that it's important that court opinions, even if they are not precedential, are easily accessible for future use.

I have converted the scanned opinion to a searchable text version. A link to the scan is contained within the footer to the live document.

    Gannett Satellite v. Borough of Raritan
    Somerset County, Docket No. SOM-L-1798-09
    Hon. Yolanda Ciccone, A.J.S.C.
    August 15, 2012
    Click here for the opinion.

Holding: Electronic file of payroll information stored by Borough's payroll vendor was subject to disclosure under the Open Public Records Act (OPRA).

Monday, August 13, 2012

Unpublished trial court OPRA opinion

"Unpublished opinions" are not published in the law books and are not ordinarily written about in legal periodicals. Unless somebody puts them on-line and calls attention to them, they are likely not to be located by people who may want to search for them. I think that it's important that court opinions, even if they are not precedential, are easily accessible for future use.

I have converted the scanned opinion to a searchable text version. A link to the scan is contained within the footer to the live document.

    Terence Jones v. Deptford Township et al
    Gloucester County, Docket No. GLO-L-2105-11
    Hon. Georgia M. Curio, A.J.S.C.
    August 13, 2012
    Click here for the opinion.

    Findings: a) DVD of video on file with the police was a government record under both the Open Public Records Act (OPRA) and the common law right of access; b) DVD was exempt under OPRA due to the "criminal investigatory record" exception and c) governmental interest in confidentiality of this particular closed investigation did not outweigh citizen's right to access.  Also, although not recited in the opinion, the Court ordered Defendant to pay Plaintiff's costs and counsel fees.

Friday, August 10, 2012

Belleville Library Board Member Given Pass on $300 Ethics Fine

The Local Finance Board (LFB) conceded today (August 10, 2012) that the Board, in the past (and "under a prior administration"), did not always follow "standard procedures for pursuing fines for penalty enforcement."  Accordingly, a $300 fine levied in 2007 against a member of the Bellville (Essex County) Library Board of Trustees was never enforced and, apparently, will not now be enforced.

On December 4, 2007, the LFB issued a Notice of Violation against Michael Perrone who, despite being a Local Government Officer, failed or refused to file his Financial Disclosure Statements for 2004 and 2005.  The Notice levied a $300 fine against Perrone.

On July 24, 2012, I submitted an Open Public Records Act (OPRA) request to the Division of Local Government Services (LGS) within the Department of Community Affairs for records proving that Perrone either paid the fine or the LFB took enforcement action against him. On July 31, 2012, I received a response from LGS records custodian Colleen Kelly informing me that no documents existed that were responsive to my request.

On August 2, 2012, I submitted a follow up OPRA request to see whether the fine against Perrone was abated or if some other legitimate reason existed for the state's failure to collect it. On August 10, 2012, I received Kelly's response confirming that the fine was never paid, collected or abated.  The response included an explanation from LGS Director Thomas H. Neff which, in essence, conceded that the matter slipped through the cracks. Mr. Neff assured me, however, that his agency has "since rectified" this lapse in enforcement proceedings.

Perrone's Notice of Violation and the OPRA requests and responses are on-line here.

Ex-wife of Cranford Police Chief still on State Health Benefits Program

I received an inquiry from a member of the public who was concerned that Cranford (Union County) Police Chief Eric Mason's wife was still enrolled in the New Jersey State Employee Health Plan despite having been divorced from Mason for two years.  In response to my OPRA request, Division of Pensions and Benefits Assistant Director David J. Pointer, in an August 9, 2012 letter, advised me that since Maryanne Del Negro-Mason's divorce from Chief Mason was "limited" as opposed to "absolute," Maryanne "is still entitled to coverage as a 'dependent' in the State Health Benefits Program."

Mr. Pointer's correspondence to me is on-line here.

Thursday, August 9, 2012

Town attorney: Donut eating councilmen have "an expectation of privacy."


According to an article in the August 8, 2012 Express-Times,  Phillipsburg activist Blaine Fehley turns his camera on fifteen minutes prior to town council meetings and catches things like councilmen chowing down on donuts which is on Fehley's website.  The town has responded by proposing an ordinance that would, among other restrictions, prohibit filing council meetings until they are called to order.  According to town attorney Richard Wenner, “until you are in a public meeting, there is an expectation of privacy.”

Update: Phillsburg's proposed ordinance is on-line here

Tuesday, August 7, 2012

A call from the New Jersey Attorney General's office.

I received a telephone call on Monday, August 6, 2012, from Deputy Attorney General Vincent J. Rizzo, Jr., Esq.  A recent posting I made on a newspaper's blog site had caught Mr. Rizzo's attention and caused him concern.

At issue were some files I placed on-line regarding a July 27, 2012 Press of Atlantic City article that reported on Jason Dare, a New Jersey State Trooper, being acquitted of drunk driving and refusal to take an Alcotest after an early morning, single car crash in Hamilton Township, Atlantic County. 

The files consisted of the "crash report" of Trooper Dare's car accident, the summonses that were issued to him and the incident reports prepared by the Hamilton police officers who investigated the accident and arrested Trooper Dare.

I obtained the crash report and the incident reports from Michael T. Brandenberger, records custodian for the Hamilton Police Department.  They contained Trooper Dare's address, license plate number, driver license number and auto insurance policy.  Since the latter three categories of information are identified as "confidential personal identifiers" by Court Rule 1:38-7,  I redacted them before posting the records on-line.

I received the summonses from Antoinette Tummon, Deputy Court Administrator of the Hamilton Municipal Court.  Trooper Dare's driver license number and license plate documents were redacted from the summons, but his address was disclosed.  I uploaded those documents to the Internet without further redactions.

Deputy Attorney General Rizzo was concerned that the summons and crash report (as well as one of the incident reports) disclosed the address that was on Trooper Dare's driver license, which Mr. Rizzo told me was the address of Dare's home which he occupied along with his wife and two small children.  Mr. Rizzo explained that since Trooper Dare may have done undercover work and may have made himself enemies among the criminal class, my on-line disclosure of his home address tended to put the Trooper and his family at risk.  He asked me to further redact the records so as to obscure the Trooper's home address.

My response to Deputy Attorney General Rizzo was probably not what he expected.  I remarked that police officers aren't the only ones who have cause to be concerned with the general public knowing where they and their families sleep at night.  I used myself as an example, and remarked that I have filed ethics and other types of formal complaints against a multitude of attorneys, police officers and other officials and the thought had crossed my mind that some of them might respond in a violent manner.  I asked Mr. Rizzo whether he would be similarly protective of my home address if someone had, for instance, submitted an OPRA request for a traffic ticket that I had received and posted the ticket--with my residence address in full view--on the Internet.  I also raised a possible societal benefit in making the residence addresses of police officers as easy to determine as those of non-law enforcement citizens.  I suggested that this awareness might might cause some officers to treat the citizens they serve more reasonably and humanely.

My concluding remarks to Mr. Rizzo were that a) I didn't wish any harm to come to the Trooper or his family but that b) I didn't agree that someone's status as a law enforcement officer automatically exempts him from the concerns that the rest of us face when our personal information is on public display.  I also said that c) even if I agreed with him, I didn't think that he and I should decide this issue on an ad hoc basis. Rather, I stated that the issue of which, if any, classes of employees, both public and private, should be protected from public disclosure of their residential addresses should be deliberated and decided as a matter of general public policy.

In sum, I offered Mr. Rizzo the following.  I would redact Trooper Dare's home address, temporarily, until Friday, September 7, 2012.  Such would give Deputy Attorney General Rizzo, Trooper Dare and others in law enforcement an opportunity to obtain a court order or other legal remedy preventing me from reposting the Trooper's home address on the Internet.  The court or administrative proceeding leading up to the ultimate decision would allow for public deliberation and evaluation of all aspects of the question.

I believe that this is a reasonable accommodation of law enforcement's concern.  While recognizing that I can do nothing to prevent those who have already downloaded Trooper Dare's home address from reposting it elsewhere, I have at least temporarily stopped further disclosure of that information from my Internet uploads until the necessary deliberation and determinations occur.

The properly redacted records (which I recommend to those who wish to see how Trooper Dare interacted with Hamilton officers--e.g. Trooper Dare's brother, Nicholas Dare, is employed as a Hamilton Township Police Officer and Sergeant Gehring reported that Trooper Dare used profanity, slurred his words and had a "strong odor of an alcoholic beverage coming from his breath") are on-line here:

Motor Vehicle Crash Report
Summonses issued--"not guilty" verdicts entered for each.
Captain Petuskey's Incident Report
Sergeant Gehring's Incident Report
Officer Esposito's Incident Report
Officer Lee's Incident Report
Officer Rudolph's Incident Report

Also of interest is Captain Petuskey's report, which recounts his telephone conversation with Hamilton Township Municipal Court Judge H. Robert Switzer, who told Petuskey that he could not forcibly take blood from Dare at the hospital.  While it's not entirely clear, Switzer's decision perhaps finds some support in the New Jersey Supreme Court's 2001 Decision in State v. Ravotto, 169 N.J. 227, which is on-line here.

John Paff, Chairman
New Jersey Libertarian Party's
Police Accountability Project

Monday, August 6, 2012

Unpublished trial court OPMA opinion

"Unpublished opinions" are not published in the law books and are not ordinarily written about in legal periodicals. Unless somebody puts them on-line and calls attention to them, they are likely not to be located by people who may want to search for them. I think that it's important that court opinions, even if they are not precedential, are easily accessible for future use.

I have converted the scanned opinion to a searchable text version. Links to the scan is contained within the footer to the live document.

Lebanon Township Post 115 First Aid Squad et al v.
Township of Lebanon et al
Hunterdon County, Docket No. HNT-L-232-10
Hon. Peter A. Buchsbaum, J.S.C.
June 11, 2010
Click here for the opinion.
Findings: a) that terse recitation of executive session topics was not permissible under the Open Public Meetings Act (OPMA) and b) topics were discussed in executive session that ought to have been discussed in public.



Thursday, August 2, 2012

Special Service Charge for reports prepared by private vendors

I recently learned that the West Orange Board of Education assesses records requestors a $150 special service charge for each payroll report requested under the Open Public Record Act (OPRA).  According to a July 31, 2012 e-mail from ADP, the payroll vendor (available here), the company apparently does charge the Board $150 for each report prepared.

It's difficult to criticize the Board for simply passing a vendor's actual charge for fulfilling a request along to a requestor.  Indeed, such seems to be expressly authorized by N.J.S.A. 47:1A-5(d).  Yet, $150 seems like a lot of money for what appears to be a simple act of having an ADP employee push a key and produce a payroll report.  Also, it strikes me that public agencies, many of which have an innate disposition toward suppressing public information, cannot be relied upon to vigorously negotiate for low access fees with the private vendors with which they contract out their services.  Indeed, it is likely that some ornery agencies might even secretly work to intentionally put excessive charges in their vendors' service contracts for the exact purpose of dissuading citizens from gathering critical government records.

This is the first time I've encountered this particular problem and am not clear, short of legislation, how to resolve it.

Tuesday, July 31, 2012

State Supremes Rule on Sunshine Act

On July 25, 2012, the New Jersey Supreme Court ruled on an Open Public Meetings Act (OPMA) case that may have significant, long-term implications and may identify aspects of the OPMA that may need to be clarified by the New Jersey Legislature.

In McGovern v. Rutgers, the Supreme Court unanimously agreed to reverse the Appellate Division's February 18, 2011 ruling on the case.  Both the Supreme Court and Appellate Division decisions are on-line here.

The highlights of the Supreme Court's ruling are:

Sequencing.

The Appellate Division found that it violates the OPMA for a public body to open a public meeting, then immediately go into closed session for an indeterminate period, and then return to public session.  The Appellate Division found that members of the public who arrive at the meeting when they believe the closed session might end "run of the risk of important business being conducted" prior to their arrival.  This, according to the Appellate Division, "deter[s] the very public participation that Act is designed to promote."

The Supreme Court, however, held that "a public body must be afforded discretion in determining the most advantageous and efficacious manner of proceeding through its agenda items . . . and that [absent proof of bad motive] courts should not interfere with a body's exercise of its discretion."

Specificity of Meeting Notices and of Closed Session Resolutions.

In the resolution it passed before going into its September 10, 2008 closed session, the Rutgers Board of Governors gave a fairly detailed description of the topics it was going to privately discuss.  But, the notice that the Board issued to publicly announce its September 10, 2008 special meeting said only that the Board would "act on a resolution to meet in immediate closed session to discuss matters falling within contract negotiation and attorney-client privilege.”

The Appellate Division did not distinguish the OPMA's requirements for advertising a special meeting (N.J.S.A. 10:4-8(d)) from the specificity required in closed session resolutions (N.J.S.A. 10:4-13(a)).  The court's failure to make this distinction caused it to erroneously conclude that "notice of the September 10, 2008 special meeting was inadequate, and ran afoul of N.J.S.A. 10:4–13, because it did nothing more than track the statutory exceptions upon which the Board relied."

The Supreme Court held that the Board's N.J.S.A. 10:4-13(a) resolution, which stated that it would "discuss matters [of] contract negotiations for sports naming rights of athletic and stadium construction; employment of personnel and terms and conditions of employment; and pending litigation, investigations, and matters falling within the attorney-client privilege with respect to these subjects" was "entirely adequate to meet the requirement of [the OPMA]."

The Supreme Court, however, found that the Board's notice of the public meeting fell short of N.J.S.A. 10:4-8(d)'s requirement that the meeting's agenda, “to the extent known,” be disclosed because "by the time this notice was prepared and published, more was known about the extent of the proposed agenda than what was conveyed by the generic references to 'contract negotiation and attorney-client privilege.'”

Discussing matters in private that ought to be discussed in public.

The Supreme Court agreed with the Appellate Division that the Board's closed session discussion that drifted into "potentially significant policy issues" violated the OPMA.  The Supreme Court warned public bodies to "be vigilant during closed sessions to ensure that they do not stray from the defined, circumscribed issues that may be addressed in a closed session."  But, as explained below, the Court declined to remedy the violation because the Board took no action and there was no evidence of a pattern of noncompliance.

Citizen-Plaintiff's Remedy when OPMA is violated.

The Appellate Division found that the Board violated OPMA and directed the trial court to formulate "an appropriate remedy." 

The Supreme Court held that a citizen is not entitled to injunctive relief under N.J.S.A. 10:4-16 unless “a pattern of noncompliance has been demonstrated.”  And, the Court held that a citizen is not entitled to relief under N.J.S.A. 10:4-15 unless action is taken. Even though the Supreme Court found that the Board violated the OPMA by having an improper closed session discussion, it ruled that the Plaintiff was not entitled to any remedy because "the record fails to disclose a repeated pattern of OPMA violations" and because no action was taken on the improperly discussed matters.

Tuesday, July 24, 2012

Englewood Cliffs school board settles OPMA suit

On March 12, 2012, I filed an Open Public Meetings Act (OPMA) lawsuit against the Englewood Cliffs (Bergen County) Board of Education.  The lawsuit is on-line here. After I filed a motion for summary judgment (my brief is on-line here), the Board indicated that it wanted to settle the case.

On June 22, 2012, I entered into a settlement agreement under which the school board agreed to improve its Open Public Meetings Act compliance and reimburse me $250 for my filing fees and miscellaneous costs.  The Consent Judgment, which specifies the terms of compliance, is on-line here.

The Board was represented by Fogarty & Hara, which represents several school districts in the Bergen County area, including Cliffside Park, Secaucus and Haledon.  If you reside in a school district represented by the Fogarty & Hara firm, you may wish to compare your board's OPMA compliance to that required under the Consent Judgment.  If your board is out of compliance in a manner similar to that remedied by the Consent Judgment, it should not be too difficult to convince the board to voluntarily adopt the standard set forth in the Consent Judgment, given that your board's own lawyer had already approved of and recommended that standard.

Monday, July 23, 2012

Local Government Ethics Law enforcement in New Jersey

Update: the 2013 version of the complaint roster is on-line here.

The majority of New Jersey counties and the vast majority of New Jersey municipalities have not created their own local ethics boards.  In those counties and municipalities, the Local Government Ethics Law, which prohibits certain types of financial dealings by local government officials and their families, is enforced by the Local Finance Board (LFB)  within the New Jersey Department of Community Affairs.  (A list of the counties and municipalities that have established their own ethics boards is here. http://nj.gov/dca/divisions/dlgs/programs/ethics_docs/localbds.pdf)

Over the years, I have put some effort into tracking the cases that the LFB handles.  This endeavor is more complicated than it might first appear because the LFB's policy is to not release any information on any case, including the identities or towns of the officials under investigation, until the case is completed and because it often take a year or two--and sometimes several years--before cases are completed. 

The only way I've found to keep track of the LFB's cases is to periodically submit an OPRA request for a roster of all cases, ordered by docket number.  Such a roster, which I OPRA'd in February 2009 (and converted to an Excel file) is on-line here.  Another, which I OPRA'd only a week or so ago, is on-line here.  By comparing the two lists, one can identify cases that have resolved since the older roster was prepared.  One can determine, for example, that LFB Docket No. 2007-002, which was filed on January 4, 2007 against Secaucus Councilman (now Mayor) Michael Gonnelli by Robert Kickey, who lost his council seat to Gonnelli in 2006, was resolved sometime between February 2009 and now. 

In order to find out what the case was about and whether or not the ethics charges against Mayor Gonnelli were dismissed or sustained, one could submit an OPRA request to the LFB for "the 'notice of dismissal' 'notice of determination' notice of violation' or other closing letter sent to the complainant in LFB Docket No. 2007-002."  (Such OPRA requests can be submitted on-line by accessing the "State Request Form" here and then selecting "Community Affairs" and then "Division of Local Government Services.")

Readers will note that there are cases from 2006 and 2007 which are still pending and for which no information is available.  For example, Docket No. LFB-2006-011, filed in May of 2006, is still pending more than six years later in July 2012.  For all we know, this complaint could be against a mayor or councilman who is up for reelection in 2012 or who was just reelected in  2011.  One could argue that it's not good policy to keep voters in the dark for the better part of a decade about an ethics matter that might be relevant to how they cast their ballots.

In any event, I hope that readers find this information useful.  Please look over the most recent list to see if an official from your town has been the subject of a closed ethics complaint.  If so, consider submitting an OPRA request for the case documents to inform yourself, and perhaps your neighbors, of the ethics infraction alleged and the case's outcome.

Thursday, July 19, 2012

Winning "Costs" in Superior Court

When I bring an action in Superior Court without a lawyer, I always try to get the other side to reimburse me for my "costs of court."  But, which costs are considered reimbursable?

A good example is my and Jose Delgado's Open Public Meetings Act case against the Camden Board of Education.  After winning the case, Jose and I asked for a court order requiring the Board to pay for the following items:

  • $200.00 lawsuit filing fee paid the the Clerk of the Court.
  • $30.00 filing fee for our Order to Show Cause application.
  • $23.20 that we paid Staples for copying costs.
  • $72.59 for me driving from my home in Somerset to Camden for a court hearing (i.e. 130.8 miles round trip at the IRS approved rate of $.555 per mile.)
  • $9.00 for parking my car in Camden.
  • $40.00 as a special fee, allowed by statute, to those who win a judgment in Superior Court.
Thus, our total request was for $374.79.

Our application was opposed by Lester E. Taylor, III, of Florio Perrucci Steinhardt & Fader, LLC. who represented the Camden Board of Education.  In his February 28, 2012 opposition (which likely cost the Board more in attorney fees to prepare than the cost award that it opposed), Taylor agreed with our requests for $200, $30 and $40, but argued that our requests for the copying, mileage and parking were "overreaching and lack[ing a] basis in law."  I filed a reply to the Board's opposition.

On March 22, 2012, Camden County Assignment Judge F.J. Fernandez-Vina granted Jose's and my request for $374.79.  A copy of the court's order, as well as Jose's and my application, the Board's opposition and our reply are on-line here. (Incidentally, I did not become aware of the court's order until today, as the order was sent to a temporary address which I had requested the court to not send mail.)

Wednesday, July 18, 2012

A head-scratcher in Bridgeton

Update: The audio of the court hearing is here.
 Friday's court hearing on my Open Public Meetings Act (OPMA) suit against the Bridgeton Board of Education was . . . let me just say that I've had more rewarding days.  The best way I can summarize Assignment Judge Georgia M. Curio's ruling is that "the Bridgeton Board did not violate the OPMA, but they'd better not do it again."

The background and documents regarding the case are on-line here.  To summarize, I attended a Bridgeton Board of Education meeting in August 2010 and, during the public comment period, complained about the manner in which the Board resolved to go into and recorded minutes of its nonpublic (closed or executive) meetings.  After a year elapsed, I obtained minutes and resolutions of three Board executive sessions held in June, July and August 2011 and, after noting that the Board had done nothing to improve its OPMA compliance, I filed my lawsuit. 

I believed then--and still believe now--that the OPMA violations were evident and substantial.  For example, the June 7, 2011 executive session resolution stated only that "personnel" issues were going to be discussed, but the minutes from that meeting show that among other topics "possible contract issues related to terminating the old phone system" were discussed.

In her oral ruling delivered from the bench, Judge Curio started out by rejecting the Board's arguments that a) it is improper for me to proceed by way of summary judgment and b) that my suit was filed after the 45-day statute of limitations had passed.  On the latter point, Judge Curio correctly ruled that since I was not seeking to void any Board action but, instead, sought an injunction against future OPMA violations, the 45-day limit imposed by N.J.S.A. 10:4-15 was not relevant.

Then the judge began to speak very slowly and measuredly.  She said that my demonstration of three sets of allegedly noncompliant executive meeting minutes and resolutions, coupled with my verbal presentation to the Board a year earlier regarding the same issues, "did not rise to the level contemplated by case law to equate to a pattern of behavior." 

She then ruled that the problems of which I complained were not violations of the OPMA and hinted that the Board, after my suit was filed, had taken steps to improve its compliance. "The Board has taken a look at its methodology and is willing to accept the proposition that it can do better" in complying with the OPMA, she said.  She ruled that "the point of litigation is to make things better" and that she didn't "want to interfere with the Board's self-critical analysis."  She told the Board that it ought to look at my lawsuit as "a shot across the bow" and that if I were to bring a similar suit in the future, I might "get a different result."

Then, over my protests, she found that I was not the "prevailing party" in the suit and, as such, the Board didn't have to reimburse me the $230 that I paid to bring the lawsuit.  She then complimented the Board and me on the quality of our written submissions and oral argument and said that it was an "interesting case." 

Even though I lost the case, I got a sense that Judge Curio really believed that OPMA had been violated, but wanted to give the Board an opportunity to correct the violations itself instead of putting them under court order.  I am presently ordering the audio of the hearing and if it is in (or can be easily converted to) digital format, I'll upload it to the Internet.  While I am not now sure exactly what to think of what happened, I'm not ruling out bringing another OPMA case before Judge Curio in the future. 

Tuesday, July 17, 2012

Appeals court, citing Sunshine issues, reverses Waldwick zoning denial

On July 17, 2012, the New Jersey Superior Court, Appellate Division, reversed, on Open Public Meetings Act (OPMA) grounds, the Waldwick Zoning Board's denial of an application to establish a "mini-mart" at a gas station.  In their six page unpublished decision, the three judge panel found that "based on the limited record" before them, they could not rule out that the Zoning Board may have improperly discussed and decided the merits of the zoning application in a private (i.e. executive or closed) meeting instead of at a meeting to which the public was admitted.  Since the trial judge, Hon. Joseph S. Conte, J.S.C., did not consider the applicant's OPMA arguments, the Appellate Division remanded that matter back to the lower court "to determine whether the resolution adopted by the Board should be nullified because the Board violated the OPMA."  The Appellate Division's opinion is on-line here.



Monday, July 16, 2012

Wrightstown mayor, wife exonerated on another ethics charge

In a July 10, 2012 letter, Local Finance Board Chairman Thomas H. Neff dismissed another ethics complaint against Wrightstown Borough (Burlington County) Mayor Thomas Harper and his wife Mary Karen Harper.  This dismissal comes on the heels of Neff's July 3, 2012 dismissal which is reported here.

The most recent dismissal regarded a December 10, 2011 complaint filed by John Paff, chairman of the New Jersey Libertarian Party's Open Government Advocacy Project.  The complaint alleged that both Harpers, who served on Wrightstown's Joint Land Use Board, were in an impermissible conflict of interest when they moved and voted in favor of appointing David C. Frank, Esq. as the Land Use Board's attorney while Frank was serving as registered agent for two limited liability corporations owned by the Harpers.  Those two corporations, Each Leasing, LLC and Avis, LLC, each own real estate in Wrightstown Borough.

In his complaint, Paff had alleged that the Harpers violated the Local Government Ethics Law "by failing to recuse themselves from voting on three resolutions that awarded a no-bid contract to Mr. Frank, who had a standing business relationship with them by serving as registered agent of the two limited liability corporations."  He also alleged that Frank himself had violated the Act "by simultaneously acting as Wrightstown Land Use Board attorney and as registered agent for the two limited liability corporations in which two members of Land Use Board held an interest."

Neff found that both of Paff's charges lacked a "reasonable factual basis for violation of the Local Government Ethics Law." Neff reported that the Local Finance Board "determined that the business relationship between the Harpers and Mr. Frank did not constitute a business relationship that would be in violation of the Local Government Ethics Law."  He characterized the relationship between the Harpers and Mr. Frank as "legitimate and unavoidable in a free society" and distinguished it from matters "which are prejudicial and material and . . . corruptive of democracy and a free society."

The complaint and dismissal letter are on-line here. We hope that publication of this matter will help local government officers better determine the contours of the Local Government Ethics Law.

Wednesday, July 11, 2012

ELEC apparently doesn't require contributor occupations to be reported.

Several months ago, I was reading the Election Law Enforcement Commission's (ELEC's) "Compliance Manual for Candidates" (available here) and learned how critically important ELEC claims it is for candidates, on their "R-1" or "C-1" form filings, to report the "occupations" of those contributors who donate more than $300 to their campaigns. According to page 22 of ELEC's manual:
When reporting occupation information, a description of the contributor’s source of income must be provided, such as “florist,” “attorney,” “doctor,” “custodian,” or “electrician.” Descriptions such as “self-employed,” “owner,” or “sole proprietor” do not identify occupation and are insufficient. If the contributor does not have a source of livelihood, a description such as “retired,” “student,” or “none” shall be reported, but in all cases some written description shall be provided and the information shall not be left blank. (Emphasis in original)
I starting perusing candidate filings looking to see if they complied with this requirement.  It didn't take me long to find that a Cumberland County Freeholder candidate, the Rev. James Dunkins, on his November 28, 2011 Form R-1 filing, just left the "occupation" field blank.  So, like any good citizen who wants ELEC's rules to be scrupulously followed, I faxed ELEC a formal letter of complaint against Dunkins and requested that he and/or his campaign treasurer be fined for this infraction.

In late February, a little more than a month after I faxed ELEC my complaint, an ELEC representative called me and told me that my complaint letter wasn't sufficient and that I must submit my complaint on ELEC's official form and return by regular mail so that ELEC would have my "original signature."  So, I dutifully filled out the form and mailed it to ELEC with my original complaint letter attached.

By letter dated May 2, 2012, Shreve E. Marshall, Jr., ELEC's Director of Review & Investigation, informed me--without giving a reason why--that "at its meeting on April 10, 2012, the Commission determined not to open a review for compliance with the provisions of the New Jersey Campaign Contributions and Expenditures Reporting Act." (Emphasis in Marshall's letter.) My complaint and Director Marshall's letter are on-line here.

All I can conclude is that despite the explicit directions on page 22 of its Manual, ELEC really doesn't care whether or not candidates complete their reporting forms correctly. 

Tuesday, July 10, 2012

Wrightstown Mayor, wife cleared of ethics charge

By letter dated July 3, 2012, the New Jersey Local Finance Board cleared Wrightstown (Burlington County) Mayor Thomas Harper and his wife Mary Karen Harper of violating the Local Government Ethic Law for testifying in support of a land use application regarding a property adjacent to the Harpers' residence while both Harpers served on the same board that heard the application.

The matter was initiated by a November 25, 2011 complaint filed by John Paff, chairman of the New Jersey Libertarian Party's Open Government Advocacy Project.  The complaint alleged that both Harpers served on Wrightstown's Joint Land Use Board when the Board met on April 14, 2009.  At the April 14, 2009 hearing, the Board was considering a site plan application regarding 56 West Main Street which is next door to the Harpers' residence at 54 West Main Street.  Immediately prior to the hearing, both Harpers recused themselves from the matter but were both sworn in to testify in favor of the application.  After the Board approved the application, both Harpers rejoined the other board members on the dais.

In support of its complaint, the Libertarian Party cited an appellate level, unpublished opinion in Beacon Hill Farm, LLC v. Township of Marlboro, 2006 WL 1661361 (Law Div. 2006). That case considered the question of whether a council president, who recused himself from participating in proceedings to enact a zoning ordinance, could sit on the dais and conduct the meeting.  In that case, the court ruled that the council president should have "physically remove[d] [himself] from the presence of the public body and leave the room until consideration of the topic which caused the recusal is complete."  The court further held that participation by a recused official "poisons the board’s quasi-judicial proceedings.”

The Local Finance Board, while recognizing the Beacon Hill Farm case, noted that it was decided under the Municipal Land Use Law rather than the ethics law.  The Board stated that it "historically . . . has not made the recommendation that a local official who recused him/herself from the dais be required to leave the room during an open public comment meeting." Accordingly, the Local Finance Board ruled, "once Mayor and Mrs. Harper removed themselves from the official action of the Joint Land Use Board, they were representing themselves concerning their own interests." 

The Libertarian Party's complaint and the Local Finance Board's dismissal letter are both on-line here. We hope that publication of this complaint will help local government officers better determine the contours of the Local Government Ethics Law.

Wednesday, June 13, 2012

Docket information on 260,000 New Jersey civil court filings now on-line



The New Jersey court system allows the public to search for civil cases, but only if either the docket number or a party’s name is known.  For example, if I already know that Kelly Morgan filed a “whistleblower” (i.e. a Conscientious Employee Protection Act (CEPA)) case against the Pleasantville Board of Education, I can go the state courts’ web site, search on Morgan’s name and learn that the case’s docket number is ATL-L-006652-10 and other information about the case.  (For instructions on how to use this on-line search feature, see my blog entry here.)

But what if I didn’t know a party’s name or docket number?  Suppose, instead, that I wanted a list of all the “whistleblower” cases filed in a given county during a given year?   This type of information is not available from the court system unless someone pays the State hundreds of dollars in programming fees to have a custom report prepared. 

Fortunately, New Jersey Foundation for Open Government (NJFOG), as a public service, recently paid the court system $710 to obtain two custom reports containing docket information on civil cases filed from January 1, 2002 to May 14, 2012.  After obtaining these electronic records, we combined them, removed the duplicates and converted them into a fixed-width text file that contains basic docket information on over 260,000 Superior Court Law Division Civil cases.  A zip file file containing the complete text files can be downloaded for free here. (Be patient, because the file is large.  Also read the “README.TXT” file first to understand which files contain which information.)

By using basic text editing and sorting software (I use EditPlus and CMSort) you can learn things like the number of whistleblower cases filed in Atlantic County in 2011 (there were 24 of them) and see that the cities of Atlantic City and Pleasantville and the Township of Galloway were named as defendants in some of them.  To learn more about any specific case, you can search the docket number on the State’s site.  For example, you’ll learn that Koltouris Konstadinos’ whistleblower case against Galloway (Docket ATL-L-002795-11) settled in mediation on April 3, 2012.  (You can also use Microsoft Excel, but I find working with text files much faster.)

While this information is very useful, it is not complete. Unfortunately, the court system periodically “archives” some of its cases, and when a case is archived, it is removed from the reports that we paid $710 for.  In order to get data from the archived cases, we would need to purchase a “PAC0502” report for an additional $1,325.  The PAC0502 report, while prohibitively expensive, would also be difficult to manipulate into useable data.  According to a March 14, 2012 e-mail from Elisabeth Ann Strom, Esq., Chief of the Superior Court Clerk’s Office (Voice: 609-292-5293 - e-mail):

The [PAC0502] report is not available for paper copies due to its immense size (one year’s worth could be at least one million pages),  nor can this report be sorted by date range or docket order.  This report is sorted by archive date.  Also, this report contains all different types of docket cases intermingled together.   In addition, because this database is for archived cases, it could contain multiple copies of the same case if it had been reopened, closed and archived again within the same year.  I have been also informed that this report is only an electronic docket, containing only enough data in the archive database to re-establish a case if necessary.  It does not contain the entire caseload of information for each case.

So, in sum, the file that we’ve provided is a nearly complete listing for recent cases (e.g. only 59 of the 93,759 cases filed in 2011 have been archived) but as the cases get older, there is a greater chance of them being archived and not available in the file we’ve provided.

In conclusion, we hope that this information will help journalists and the general public to better identify and track court cases that are of interest.  We also believe that NJFOG’s experience in gathering this information illustrates how antiquated, expensive and user-unfriendly New Jersey’s civil case database is.  Compare New Jersey’s system to the federal court’s Pacer system. While it has its flaws, the Pacer system allows account holders to search court records in a variety of ways and to actually download PDF versions of court filings (for a modest cost per page).