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.