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.