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.