Sunday, January 29, 2012

Gibbsboro/Voorhees OPRA suit concluded

I've previously written about my Open Public Records Act (OPRA) case against the Township of Voorhees and the Borough of Gibbsboro, both in Camden County. See my blog entries of October 12, 2011 and October 20, 2011.

To summarize, attorney Walter Luers and I sued both Voorhees and Gibbsboro for records arising out of a December 30, 2009 incident in which a uniformed Voorhees police officer, while in Gibbsboro behind the wheel of his parked patrol car, was slapped repeatedly by his wife. (If you haven't listened to the 911 calls made by the alarmed citizens who witnessed this incident, you might want to--they're interesting, to say the least.)

The case is now over, and since we won on most issues, the court ordered Voorhees to reimburse the court filing fees I paid plus Walter Luers' attorney fees of $3,375 plus a $675 "contingency enhancement" for a total of $4,443.57. The court's January 25, 2012 final order is on-line here.

One of the issues we did not win was disclosure of the Gibbsboro Police Department's report of this incident as well as some radio transmissions made by Voorhees police. Camden County Superior Court Assignment Judge Francis J. Orlando, Jr., after reviewing these records in camera, ruled that they were protected by an expungement order obtained by the officer's wife (i.e. the court expunged the assault charges and related records arising out of the incident).

Yet, the wife's expungement petition was filed after I submitted my OPRA request for the records. And, the court would have most likely ordered disclosure of those records but for the expungement order. The upshot is that Voorhees' and Gibbsboro's denial of the records, while probably unlawful initially, became lawful because the expungement order was entered prior to the hearing at which my OPRA rights were determined. So, sometimes a citizen's entitlement to a criminal case record depends upon whether the OPRA hearing occurs before the expungement hearing or vice versa. (It strikes me that something as important as the public's right to know shouldn't depend on something as fortuitous as the court's schedule.)

Walter and I did, however, win access to to a redacted version of the assaulted officer's "shift log" and the "chat log" that captures text messages sent to each other by Voorhees officers when the reports came in about a fellow officer being assaulted by his wife. (By comparing the four digit officer ID numbers in the shift log to those in the chat log, you can identify the officers who were chatting.)

All in all, this case raised some interesting questions regarding the relationship of expungement actions to OPRA rights as well as the efficacy and utility of expungement in a time when nearly everything is or can be accessible on the Internet.

It also raises questions as to the process through which information makes its way to the "police blotter" section of the local newspaper. When couples who aren't within the law enforcement community have a dispute and police are summoned, their names may be printed in the newspaper. (See, e.g. the March 30, 2011 entry here in the ManchesterPatch.) If one of the parties to a physical dispute is a police officer, I believe that the police are likely to withhold the incident from the newspapers.

Saturday, January 28, 2012

Open Public Meetings Act court hearing in Camden on Friday, February 10th

Update: I telephoned the court today and learned that our matter will be heard at 10 o'clock on Friday, February 10, 2012 before Judge Fernandez-Vina in courtroom 63.

In November 2011, Camden resident Jose Delgado and I filed a pro se lawsuit against the Camden City Board of Education.

Our complaint, order to show cause and brief are on-line here.

The exhibits to our complaint are on-line here.

The exhibits to our brief are on-line here.

The Camden school board's answer and opposition are online here.

The lawsuit seeks answers to the following five questions regarding the Open Public Meetings Act:

1. How promptly must a government agency publicly disclose the nonexempt portions of its nonpublic (i.e. “closed” or “executive”) meeting minutes?

2. Does the agency’s claim that it must first “approve” its nonpublic meeting minutes prior to publicly disclosing even redacted versions of them have a basis in law?

3. Must an agency pass a separate, free-standing resolution in order to satisfy the requirements of N.J.S.A. 10:4-13, or is it sufficient for it to pass a motion, which is recorded in the regular meeting minutes?

4. In its N.J.S.A. 10:4-13 motions or resolutions, how specifically must an agency describe the topics it plans to discuss during its nonpublic meetings?

5. In its N.J.S.A. 10:4-13 motions or resolutions, how precisely must an agency state the time when and the circumstances under which the discussion conducted in nonpublic session can be disclosed to the public?

Our hearing on this suit will be on Friday, February 10, 2012, 9 a.m., before Hon. Francis J. Orlando, A.J.S.C. at the courthouse at 101 S. Fifth St, Camden. (Given Judge Orlando's retirement, the matter will probably be heard by a different judge.) The hearing will be open to the public and everyone is invited to attend. Those wishing to attend are advised to call the court at 856-379-2355 the day before the hearing to verify that it has not been postponed and to which judge it has been assigned. Refer to Paff and Delgado v. Camden City Board of Education, Docket No. L-5680-11.

One of the reasons we're doing this is to get a clear declaration from the court as to exactly what the Open Public Meetings Act requires. For example, it is not clear whether or not the Meetings Act requires public bodies to pass free-standing resolutions or a simple motion prior to going into closed or executive session. See N.J.S.A. 10:4-13. There is a significant difference between a resolution and a motion in that a copy of a resolution should be available to the public the day after the meeting at which it was passed, while a motion, which is embodied within a meeting's minutes, might not be available until the minutes are prepared--which often takes several weeks or months. So, if a member wants to know the exact, stated reasons why a body closed a meeting to the public, he or she can get that information quicker if the body passes resolutions instead of motions.

If the court decides this and/or some of our other questions in our favor, I plan on notifying every other public body (municipal councils, school boards, fire districts, etc.) in Camden County of the court's ruling. I will advise the bodies, in essence, that since the court required the Camden City Board of Education to obey the Meetings Act in a particular manner (e.g. by passing closed session resolutions as opposed to motions), the court, if asked, would very likely require other bodies to obey the OPMA in the same fashion. If, thereafter, anyone finds a public body in Camden County that is still not following the court's directions, as set forth in its decision in our case against the Camden Board of Education, it ought to be fairly simple to file a lawsuit and get the court to re-impose those same requirements.

If this process works, I will then endeavor to file similar lawsuits in every county in the state and, if successful, repeat the notification process. This, of course, is a very ambitious project and I will likely need a great deal of help. (Also, it strikes me that it is a bit unfortunate that private citizens have to work so hard to establish what the Meetings Act means and get local agencies to comply with it. It would be nice if agencies like the Attorney General and county prosecutors offices, which are allegedly in the business of enforcing laws, would take a more active role in Meetings Act enforcement.)

Intimidation Tactics?

Lester E. Taylor, III, Esq. of Florio, Perrucci, Steinhardt & Fader, LLC (yes, that Florio), who is representing the Camden school board claims that Jose and I have "unclean hands," would be "unjustly enriched" if we were to win our suit, and that because our claims are "frivolous," we should be made "liable for the [school board's] attorneys' fees and litigation costs." I realize that as long as a claim has evidentiary support and is made in good faith, it is not "frivolous" and that I can't be made to pay the school board's attorney fees even if the suit is unsuccessful. I suspect that Mr. Taylor knows this too, but raised the specter of me and Jose being forced to pay the Board's attorney's fees in order to intimidate us and dissuade us and other citizens from enforcing our rights in court. I think Mr. Taylor's assertion that our claims are "frivolous" is itself "frivolous" and reflect poorly on him, his law firm and the legal profession in general.

Thursday, January 26, 2012

Two new unpublished trial court OPRA opinions

These 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 opinions to searchable text versions. Links to the scans are contained within the footers to the live documents.

Terence Jones v. Paulsboro Police Department
Gloucester County, Docket GLO-L-1360-11
Hon. Georgia M. Curio, A.J.S.C.
January 12, 2012
Click here for the opinion.

Regarding Police Use of Force Reports and surveillance video

* * *
Tina Renna v. Union County Alliance
Union County, Docket No. UNN-L-4071-11
Hon. Regina Caufield, J.S.C.
January 25, 2012
Click here for the opinion.

Regarding whether a private non-profit corporation that is closely aligned with, but not created by, a government agency is subject to OPRA.

John Paff, Chairman
New Jersey Libertarian Party's
Open Government Advocacy Project
paff@pobox.com

Saturday, January 7, 2012

Dunellen Parking Authority article identifies areas of confusion

An article appeared in today's (January 7, 2012) Courier News regarding my and the State's questioning of the financial integrity of the Dunellen Parking Authority. Background on the issue is on my blog here.

Condensed version: After reading an August 30, 2010 letter from Andrew G. Hodulik, the Authority's auditor, I became concerned by his statement that due to the "inadequacy of [the Authority's] accounting system and records for the year ended December 31, 2008," he wasn't able to determine the amounts of the Authority's "accounts receivable, accounts payable and deferred parking permit revenues [which] are recorded/not recorded on the balance sheet or accompanying financial statements." That letter is on-line at here.

Mr. Hodulik's comment caused me to contact the Division of Local Government Services (DLGS) within the Department of Community Affairs. On November 29, 2011, the DLGS, apparently finding merit to my concerns, wrote the Authority a stern letter noting that for several years it had insufficient controls "surrounding the monitoring of parking permit fees and parking meter collections and proof of collections." The DLGS stated that the Authority's "ongoing failure to resolve the significant [accounting] deficiency . . . is not acceptable" and demanded that it develop a Corrective Action Plan within 90 days. See the letter here.

I felt that the State's finding, which in essence said that that Authority didn't keep records of how much cash it was receiving from meters and permit sales (thus allowing pilfering to occur unchecked), warranted notification of the Borough Council as well as the media. During his research of the matter, Courier News staff writer Sergio Bichao was provided with the Parking Authority's January 6, 2012 letter to the DLGS. That letter is on-line here. This letter indicates that most of the more critical accountability issues had already been addressed in 2004 and 2008.

Bichao's article accurately stated that the January 6, 2012 letter "baffled" me. The matters that confuse me are:

a) Why did Hodulik's August 30, 2010 letter, which was written approximately two years after the Authority had installed the new, improved parking meters in 2008, not indicate that the problem with meter collections had been resolved?

b) Why did the DLGS, after reviewing the matter in late 2011, come to the apparently erroneous conclusion that parking meter collections were not properly accounted for when that problem was allegedly resolved in 2008 when the new, improved meters were purchased.

I've always understood that a government audit's purpose is to professionally evaluate whether public money is being properly safeguarded and accounted for and to clearly report those evaluations to the taxpaying public. In this case, the audit reports apparently did not do their job because the DLGS--the State agency officially tasked with keeping track of local agencies' fiscal integrity--erroneously concluded that the Authority's meter collection and permit revenues were not properly accounted for. If the state agency charged with ensuring the financial integrity of public agencies cannot correctly interpret those agencies' audits, I don't see how a regular citizen is supposed to do better.

Also, the article reveals that the DLGS "does not normally review audits at this level of detail." If this is true, and if the audits are not written in a manner allowing them to be interpreted by the general public, I question whether the audits' value exceeds their expense.

I think that this matter illustrates that some sort of reform is needed on how audits of public funds are conducted and reviewed. Currently, millions of tax dollars are spent by thousands of public agencies across the state for audits that are "not normally reviewed" in detail by the state government and, even when they are so reviewed, are fundamentally misinterpreted.