Sunday, December 29, 2013

Losing a case is sometimes better than not bringing it

Sometimes, you've got to lose a records access case in order to highlight a flaw in the system.   This is the case with Warren County Superior Court Judge Amy O'Connor's recent decision to protect the identities of the public officials who used county-owned generators for personal use during power outages caused by Superstorm Sandy.  Background and case documents on the lawsuit are on my blog here.

It's not as if I actually lost the case--O'Connor ordered disclosure of much of the Warren County Prosecutor's investigative file--but not knowing the names of the officials involved deprives citizens of their ability to effectively oversee their public servants.  As it is, the officials who misused the generators may get promoted in the future and the public will be none the wiser.

On the bright side, the local newspaper, the Express-Times, reported and editorialized on O'Connor's ruling.  PDFs of the article and editorial are here and here and the on-line version of the article is here.  From the comments posted so far, the public is outraged by the decision and the Express-Times editorial staff correctly asked "if those involved have been punished and moved on, what’s the rationale for not disclosing all the details?"

I hope that the public's discontent with O'Connor's ruling spurs a discussion by policymakers that will lead to a fairer balance between a public official's or employee's right to privacy and the public's right to know.  Currently, the balance is tipped way too far in favor of public officials and employees.





Saturday, December 28, 2013

Bergen Judge rules that school board must disclose agenda attachments prior to meeting.

On December 24, 2013, Bergen County Superior Court Assignment Judge Peter E. Doyne ruled that the Midland Park Board of Education, which posts its public meeting agendas on-line prior to each meeting, must also post the attachments and appendices referenced in the agenda to the extent that those attachments are not shielded by some recognized privilege. 

The case is captioned David W. Opderbeck v. Midland Park Board of Education, Docket No. BER-L-8571-13 and Mr. Opderbeck represented himself in the suit.  Judge Doyne's 18-page ruling is on-line here.

Doyne wrote: "The failure of the MPBOE to provide attachments and supplemental documents renders the agendas virtually meaningless. Once the defendant posts the agenda, it is the Board's responsibility to ensure it is meaningful. The defendant cannot provide adequate notice without including the attachments to the agenda. The attachments in this case are not simply supplemental; they are an integral element necessary to understand the agenda."

An example of Board's agenda that Judge Doyne felt was "virtually meaningless" without the attachments and appendices is on-line here.

While Judge Doyne's ruling is not binding on other courts, other judges may consider it persuasive and adopt its reasoning in suits brought in other counties.  Readers are encouraged to bring Judge Doyne's opinion to the attention of their own governing bodies and school boards, encourage them to abide by it and consider litigation if they refuse.





Friday, December 20, 2013

Judge orders disclosure of most information in Warren "Generator-Gate" case.

Update:  

The Appellate Division, on December 8, 2015, affirmed Judge O'Connor's ruling.

Update:

Judge O'Connor significantly revises her "generator" decision

Judge O'Connor called both attorneys in Paff v. Warren County Prosecutor's Office today and held a Case Management Conference via telephone at 4 p.m. today (Monday, December 23, 2013).  The judge's purpose in calling the conference was to modify her previous order so that the identities of the official(s) who misused the county-owned generators would also be redacted from the documents that will provided in the case.  Judge O'Connor's amended order is on-line here.

O'Connor's December 18, 2013 order stated that the Prosecutor's office "shall redact from the documents the names of any person who provided a statement to [the Prosecutor's office], as well as his or her position of employment, birth date, home and cellular telephone numbers, home address, and any personal identifier." 

We believed that the intent of this provision was to protect the confidentiality of any witnesses or whistleblowers who may have turned in the officers who actually misused the generators.  O'Connor clarified today, however, that she is including the perpetrators themselves among those whose identities will be kept from the public.

In a decision rendered December 18, 2013 and released today, December 20, 2013, Warren County Superior Court Judge Amy O'Connor (now elevated to the Appellate Division) ruled that I am entitled to most of the records pertaining to an investigation of a Warren County jail officer's improper use of a county-owned generator to service his own residence during power outages caused by Superstorm Sandy.

O'Connor's two-page Order and eight-page written decision in Paff v. Warren County Prosecutor, Docket No. WRN-L-34-13 are on-line here.  My complaint, certification and brief in this case, filed by the Law Offices of Walter M. Luers, are on-line here.

The Warren County Prosecutor's Office (WCPO), the defendant in the case, had withheld thirteen documents when responding to my Open Public Records Act (OPRA) and common law right of access request.  Judge O'Connor upheld the WCPO's right to withhold the thirteen records under OPRA but ordered it to release each of the thirteen records, in whole or part, under the common law right of access.

"Compared to OPRA, a broader class of documents is available under the common law, although on a qualified basis," O'Connor ruled.  After balancing the public's interest in disclosure against the government's interest in confidentiality and individuals' rights to privacy, the judge ordered disclosure of all thirteen records but allowed for certain redactions to be made to some of them.

The matters that the judge ruled confidential are: a) the names, birth dates, home addresses, telephone numbers and information that describes the employment positions of witnesses and b) two bullet points on a three-page memo from Undersheriff Kenneth J. McCarthy to Sheriff David P. Gallant regarding an internal affairs investigation into the officer, which the judge ruled was "deliberative."


The WCPO must disclose the documents to me with sixty days.  The WCPO may, however, file an appeal and seek to stay disclosure of the records pending appeal.





Wednesday, December 18, 2013

Township questioned on adequacy of special meeting's notice

Update: December 24, 2013

Township Solicitor John G. Carr, in his December 24, 2013 letter (on-line here), acknowledges that the OPMA was violated and plans on ratifying all action taken at the next meeting.
----------------------
December 18, 2013

Hon. William C. Reinhart, Mayor, and members of the
Greenwich Township Committee
P.O. Box 64
Greenwich, NJ 08323
(via e-mail only to garrisonL99@aol.com)

Dear Mayor Reinhart and Committee members:

I write on behalf of the New Jersey Libertarian Party's Open Government Advocacy Project regarding the manner in which the Township Committee advertises its meetings to the public.

I note that the minutes of the September 25, 2013 special meeting (on-line here) state:
Deputy Mayor Port called the meeting to order stating, “Adequate notice of this meeting was provided in compliance with the Open Public Meeting Act by notifying the News of South Jersey on September 13, 2013."
But, N.J.S.A. 10:4-8(d) states:
“Adequate notice” means written advance notice of at least 48 hours, giving the time, date, location and, to the extent known, the agenda of any regular, special or rescheduled meeting, which notice shall accurately state whether formal action may or may not be taken and which shall be (1) prominently posted in at least one public place reserved for such or similar announcements, (2) mailed, telephoned, telegrammed, or hand delivered to at least two newspapers which newspapers shall be designated by the public body to receive such notices because they have the greatest likelihood of informing the public within the area of jurisdiction of the public body of such meetings, one of which shall be the official newspaper . . ." (Emphasis supplied)
And, N.J.S.A. 10:4-10 states:
At the commencement of every meeting of a public body the person presiding shall announce publicly, and shall cause to be entered in the minutes of the meeting, an accurate statement to the effect. . . that adequate notice of the meeting has been provided, specifying the time, place, and manner in which such notice was provided . . ."
The Open Public Meetings Act requires more than just notifying one newspaper in advance of the meeting.  As shown above, it requires notification of two newspapers and posting in at least one public place.  And, the minutes are required to "specif[y] . . . time, place, and manner in which such notice was provided . . ."

From the information I have, I cannot tell whether a) proper notice was not given of this special meeting or b) the minutes do not accurately reflect how proper notice was given.  Yet, it seems apparent that either N.J.S.A. 10:4-8(d) or N.J.S.A. 10:4-10 was violated.

I ask that you please have Mr. Carr and Ms. Garrison look into this matter and advise me of the outcome.

Very truly yours,

John Paff, Chairman
New Jersey Libertarian Party's
Open Government Advocacy Project
P.O. Box 5424
Somerset, NJ  08875
Voice: 732-873-1251
Fax: 908-325-0129
e-mail: paff@pobox.com

cc. John Carr, Esq. (via e-mail to jgccresseandcarr@gmail.com)

Wednesday, December 11, 2013

Cape May Prosecutor questioned on Wildwood Crest's compliance with the Open Public Meetings Act

December 11, 2013

Robert L. Taylor, Prosecutor
Cape May County Prosecutor’s Office
Via e-mail only to prosecutor@cmcpros.net

RE: Question on Wildwood Crest's compliance with the Open Public Meetings Act

Dear Prosecutor Taylor:

I write on behalf of the New Jersey Libertarian Party's Open Government Advocacy Project seeking a finding by your office that the Wildwood Crest Board of Commissioners' notice of two of its recent special meetings did not comply with the "adequate notice" provisions of N.J.S.A. 10:4-8(d).  I write to you because you have previously sent admonishments to public bodies that have violated the Meetings Act.  (See, e.g. "Cape May County prosecutor says Lower Township is using emails to violate Sunshine Law," June 21, 2011 by Richard Degener of the Press of Atlantic City.)

N.J.S.A. 10:4-8(d) requires public bodies, among other things, to give notice of their public meetings by having the meeting notices:
"mailed, telephoned, telegrammed, or hand delivered to at least two newspapers which newspapers shall be designated by the public body to receive such notices because they have the greatest likelihood of informing the public within the area of jurisdiction of the public body of such meetings, one of which shall be the official newspaper . . ."  N.J.S.A. 10:4-8
At a link here I have placed Wildwood Crest's November 7, 2013 Notice of two special meetings to be held on Tuesday, November 12, 2013 at 1 p.m. and Wednesday, November 13, at 1 p.m.   According to the appended Certificate of Mailing, the Notice was both mailed and faxed to three newspapers.  One of those papers, the Press of Atlantic City, publishes daily and the other two, the Gazette Leader and Cape May County Herald, publish weekly.  The appended "Fax Call Report" indicates that each of the newspapers received its fax of the notice shortly after 5 p.m. on Thursday, November 7, 2013.

While actual publication of the notice by the newspapers is not required, public bodies must take the newspapers' publication schedule into account when sending notices of public meetings.
"When a public body sends meeting notices to newspapers for publication and, to the actual or readily ascertainable knowledge of that body, those newspapers cannot publish the notice at least 48 hours in advance of the meeting, there is no compliance with the Open Public Meetings Act."  Worts v. Upper Township, 176 N.J.Super. 78 (Ch.1980).
Although Worts is not binding precedent, the case has been cited by the Appellate Division with apparent approval. See Township of Bernards v. State, Dept. Of Community Affairs, 233 N.J.Super. 1, 26, (App.Div.1989), certif. denied, 118 N.J. 194 (1989), and certif. denied, 118 N.J. 195 (1989).  See also, Lakewood Citizens for Integrity in Government, Inc. v. Lakewood Tp. Committee, 306 N.J.Super. 500 (Law 1997).

If we follow the rule pronounced in Worts, in order for Wildwood Crest's notice of its November 12, 2013 and November 13, 2013 meeting to have been effective, it must have been received by at least two qualifying newspapers such that each newspaper could have published notice of each meeting at least 48 hours prior to each meeting taking place. 

The Herald publishes each Wednesday and the deadline for submitting legal advertisements is at noon on the prior Thursday. (See the Herald's publication policy on-line here).  As noted above, Wildwood Crest's notice was faxed several hours after the Herald's Thursday noon publication deadline, so the the earliest that the Herald could have published the notice consistent with its publication schedule would have been on Wednesday, November 20th, which was well after the November 12th and November 13th meetings.  Even if Wildwood Crest's fax had been received by the Herald prior to noon on November 7th, the notice would not have been published until November 13th, which would not have given Crest citizens 48 hours advance notice of either meeting.

Catamaran Media, which publishes several weekly newspapers including the Leader which publishes each Thursday, has its publication deadline policy on-line here.  In order for an announcement to be published in "Zone A" which includes the Leader, it has to be received by the newspaper by no later than 2 p.m. the prior Tuesday.  Thus, Wildwood Crest's notice, having been faxed on Thursday, November 7th, could not have been published by the Leader until Thursday, November 14th, which is after both of the meetings sought to be noticed.  Indeed, the Leader, in a November 14, 2013 article (on-line here), noted that the Crest's delivery of the meeting notice was "past the Leader's deadline for print." 

The only newspaper notified by Wildwood Crest which was capable of publishing a timely notice of the November 12th and November 13th special meetings was the Press of Atlantic City, which publishes daily.  But, the Press is only one newspaper and N.J.S.A. 10:4-8 expressly requires that timely notice be given to "at least two newspapers."  Accordingly, Wildwood Crest's notice of the November 12th and November 13th special meetings was deficient.

Would you please look into this matter and let me know your thoughts?

John Paff, Chairman
New Jersey Libertarian Party's
Open Government Advocacy Project
P.O. Box 5424
Somerset, NJ  08875
Voice: 732-873-1251
Fax: 908-325-0129
e-mail: paff@pobox.com

cc. Wildwood Crest Mayor and Board of Commissioners
     via e-mail only to jholzmer@wildwoodcrest.org












Official moves out of state and avoids an ethics infraction

On December 2, 2013, the Local Finance Board (LFB) dismissed an ethics complaint against a former member of the Winslow Township (Camden County) Board of Health because the official moved to Georgia and did not respond to the LFB's letter sent to what the Post Office reports as his forwarding address.

In its dismissal letter to Daniel Wilkinson (Complaint No. LFB-11-053), on-line here, the LFB found that Wilkinson, who had resigned from the Board of Health on January 12, 2012, "failed to file a 2011 Annual Financial Disclosure Statement . . . in accordance with the requirements of the Local Government Ethics Law."  While the LFB found that Wilkinson's resignation "did not in and of itself absolve [Wilkinson] of the duty to file the financial disclosure statement for 2011," it ultimately closed the complaint because he "no longer resides in the State and attempts to contact [him] in both New Jersey and Georgia were unsuccessful."  It is not clear from the LFB's determination letter whether the Georgia address that the Post Office listed as Wilkinson's forwarding address was invalid or whether Wilkinson received the LFB's correspondence at his Georgia address but simply neglected to respond. 

Apparently, local government officials who violate the ethics law may be able to escape liability by moving and not responding the LFB's letters sent to the forwarding address furnished by the Post Office.

More changes suggested for Deerfield Township

December 11, 2013

Hon. Frank R. Spatola, Jr., Mayor and members of the
Deerfield Township Committee
736 Landis Avenue
Rosenhayn, New Jersey
(via e-mail only to kseifrit@comcast.net)

Dear Mayor Spatola and Committee members:

After posting a blog entry yesterday regarding my recommended changes to § 5-10 of the Township Code, I received input from blog readers pointing out other areas within that Code section where Deerfield Township could improve.  I have revised my suggestions to incorporate those ideas and have posted the revision on-line here.

A very important item (and one that I missed) is that § 5-10E of the Code, as presently written, does not comport with a statutory (N.J.S.A. 10:4-12) requirement that each Township Committee meeting contain a portion "for public comment on any governmental or school district issue that a member of the public feels may be of concern to the residents of the municipality . . ."  In my revised draft, I have included two periods for public comment, one at the beginning of the meeting which is restricted to comments and questions on agenda items, and one at the end of the meeting for comments and questions on any issue.

Additionally, my draft revision specifically requires the Mayor to attempt to answer questions offered by citizens at either public session.  Unfortunately, many municipalities around the state have adopted an informal policy of refusing to respond to citizens' questions.  I hope that the Committee agrees that citizens who take the time to come to a meeting to ask questions deserve the courtesy of genuine answers to their questions.

Another blog reader noted that advance copies of meeting agendas would be much more useful to the public if draft copies of the resolutions, ordinances and reports listed in the agendas were also available on line.  I included those suggestions in § 5-10B in my draft revision.

Thank you for your attention to this matter.

Very truly yours,

John Paff, Chairman
New Jersey Libertarian Party's
Open Government Advocacy Project
P.O. Box 5424
Somerset, NJ  08875
Voice: 732-873-1251
Fax: 908-325-0129
e-mail: paff@pobox.com

Tuesday, December 10, 2013

Seeking better compliance with the Open Public Meetings Act, one municipality at a time

When I visited southern New Jersey last week, I attended a Deerfield Township (Cumberland County) Committee meeting and made some suggestions as to how the Committee could better comply with the spirit and intent of the Open Public Meetings Act.  Today, I wrote to Mayor Spatola and the Committee members to thank them for their attention and to suggest changes to the Township's code that will help them implement my suggestion.  My letter follows.  Readers may wish to send similar letters to their own local government bodies and school boards.
  -------------------------------
December 10, 2013

Hon. Frank R. Spatola, Jr., Mayor and members of the
Deerfield Township Committee
736 Landis Avenue
Rosenhayn, New Jersey
(via e-mail only to kseifrit@comcast.net)

Dear Mayor Spatola and Committee members:

It was my pleasure to address the Committee during the public portion of its December 4, 2013 public meeting.  I hope that my comments and suggestions on how Deerfield Township could go above and beyond in its Open Public Meetings Act compliance were taken to heart.

In order to aid you in implementing my suggestions, I have made available here a PDF version of my recommended changes to § 5-10 of the Township Code which regulates conduct of Committee meetings.  As you can see, my suggested language strengthens the Committee's commitment to the principles embodied within the Meetings Act and, if adopted, would make Deerfield a model for other local government agencies to emulate.

I ask that you please review this matter at your December 18, 2013 meeting.  And, I would appreciate it if you would let me know how the Committee decides to act on this matter.

Thank you for your attention to this matter.

Very truly yours,

John Paff, Chairman
New Jersey Libertarian Party's
Open Government Advocacy Project
P.O. Box 5424
Somerset, NJ  08875
Voice: 732-873-1251
Fax: 908-325-0129
e-mail: paff@pobox.com

Monday, December 2, 2013

Court: Some Police Internal Affairs records may be disclosable

On-line here is a November 26, 2013 West Virginia Supreme Court opinion that discusses police internal affairs records and holds that sometimes, the public right to access them is greater than the police officer's or government's interest in confidentiality.  A newspaper article regarding the decision is on-line here.

Perhaps it's time to challenge New Jersey's policy of never disclosing IA matters, even in closed cases, to the public.




Friday, November 29, 2013

Wildwood Crest questioned on meeting minutes sufficiency

November 29, 2013

Mayor Carl Groon, and members of the
Wildwood Crest Borough Commission
via e-mail to jholzmer@wildwoodcrest.org

Dear Mayor Groon and Commissioners:

In response to a recent Open Public Records Act request, I received redacted minutes from the Board's November 18, 2013 nonpublic (i.e. executive or closed session).  I have placed these minutes on-line here.

I invite your attention to the sentence within the minutes that states that "[d]iscussion was also had regarding the hiring of a special investigator."  As you know, this special investigator was hired to investigate a police internal affairs matter.  The rumors circulating throughout the Borough are that the investigation relates to a police employee who has earned the rank of lieutenant or higher.  Regardless of the truth of these rumors, this is a matter of great public interest and it's very important that there is sufficient information available so that Borough voters and taxpayers, at least at some point in the future, can understand the nature of the investigation and draw their own conclusions as to whether the Borough's elected and appointed officials acted reasonably.

N.J.S.A. 10:4-14 requires meeting minutes to be “reasonably comprehensible.”  Do you think that this terse statement about an investigation in the minutes,  without more, reasonably captures the sense of the discussion that took place during the closed meeting?

The purpose of closed meeting minutes is not merely to inform the public of what occurred during the private session, but also to create a record for the Board members themselves. Do you think that a Board member who is newly elected in, say, 2015 could be able, by referring solely to the November 18, 2013 closed session minutes, to figure out exactly the context of the Board's discussion about the special investigator?   Don't you think that this new Board member would ask himself or herself "Who was being investigated?" and "What are the circumstances surrounding the investigation?"

Better practice would be to have Clerk Holzmer record more verbose minutes and then redact them, as necessary, before publicly disclosing them. For example, instead of stating what Clerk Holzmer wrote in the November 18, 2013 minutes, the minute entry might hypothetically read
Mayor Groon informed the Board that the Cape May County Prosecutor had declined to do an investigation of Police Captain John Doe for misusing police property and requested that the Borough do its own investigation.  Mayor Groon said that despite the result in West Wildwood's lawsuit with employee William Null in 2008, he recommended that Fallon Associates be retained to conduct the investigation.
Of course, the Borough could probably redact "Captain John Doe" and perhaps other details from the minutes before releasing them to the public but at least the information would exist and would possibly, some day, be disclosable to the public.  And, as stated above, the Commissioners would be able to comprehend the minutes without having to reference outside material.

Recording more verbose minutes is not only good policy, but—at least regarding personnel matters-- is required by law. In 1991, the New Jersey Supreme Court held that “minutes are intended to recite and disclose any official decision or action taken by a public body, and necessarily must contain sufficient facts and information to permit the public to understand and appraise the reasonableness of the public body’s determination.”  South Jersey Publishing Co., Inc. v. New Jersey Expressway Auth., 124 N.J. 478, 493 (1991).   

Please discuss the issues raised in this letter at your next meeting and let me know what, if any, changes the Board is willing to make to the manner in which it records minutes of its closed sessions.

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

John Paff, Chairman
New Jersey Libertarian Party's
Open Government Advocacy Project
P.O. Box 5424
Somerset, NJ  08875
Voice: 732-873-1251
Fax: 908-325-0129
e-mail: paff@pobox.com

Thursday, November 21, 2013

Loss on "private prison" OPRA lawsuit


In an unpublished November 21, 2013 decision, a two-judge Appellate Division panel affirmed Essex County Judge Rachel Davidson's October 12, 2012 dismissal of my Open Public Records Act (OPRA) complaint against Community Education Centers, Inc., a private corporation that provides prison services to Essex County through an agreement with an intermediary non-profit corporation.  The Appellate Division's written decision is on-line here and background information on the case is on-line here.

My basic argument is that running prisons is a traditional function of government and that a government's decision to contract its prisons to a private vendor should not deprive citizens of access to the records that would be attainable if the government operates the prisons directly. 

Attorney Richard Gutman of Montclair will be asking the Supreme Court to hear my appeal in this case.

Tuesday, November 19, 2013

Cape May judge rules in Middle Township's favor in OPRA case

On November 14, 2013, Cape May County Superior Court Judge Nelson C. Johnson dismissed a lawsuit filed by a Wildwood private detective alleging that Middle Township Clerk Kimberly Krauss violated his rights under the Open Public Records Act (OPRA) and the common law right of access.

In his complaint (Wilson v. Middle Township, et al, Docket No. CPM-L-291-13), filed on June 24, 2013, private detective Albert F. Wilson, represented by Christopher Gillin-Schwartz, Esq., of Barry, Corrado & Grassi, P.C. of Wildwood, challenged Krauss' April 29, 2013 letter of denial, which included a table that identified six e-mails by date, sender, recipient and subject line, and claimed that all six e-mails were entirely exempt from disclosure due to the attorney-client privilege.  In his brief, Gillin-Schwartz argued that Krauss' table did "not provide descriptions sufficient to justify the claim of privilege" and that "the existence of attorney client privilege . . . cannot be demonstrated simply by including the prosecutor and solicitor in the list of e-mail recipients."

Krauss and Middle Township, represented by William J. Kaufmann, Esq. of Cafiero & Balliette of Wildwood, conceded that the Township had, on July 8, 2013, released two of the previously withheld e-mails to Wilson.  As to the four remaining e-mails, Kaufmann argued that the table Krauss provided to Wilson was sufficient.  Kaufmann analogized the four e-mails to the parties to the e-mail being "physically all together in a room at the same time and [saying] to each other the exact same things that were said in the e-mails."  He argued that the discussion, which "concerned an on-going municipal court prosecution, the strategy being employed by the Municipal Prosecutor and whether or not a meeting with the defendant and its attorney should occur" would have been covered by the privilege.  Since e-mail is a "virtual conference room," he argued that the e-mails should have the same protections afforded to an in-person conversation.

Judge Johnson placed his findings of fact and conclusions of law on the record in open court on October 31, 2013.  (Anyone interested in hearing Judge Johnson's findings and conclusions may order a compact disc from the court offices.)  His written order, prepared by Kaufmann, shows that he dismissed Wilson's complaint "without attorney's fees" and ordered that Wilson pay the out of pocket court costs (not including attorney fees) incurred by the Township and Krauss.

Documents from the case are on-line here.

Friday, November 15, 2013

My comments regarding the rule proposal by New Jersey's Local Finance Board

Update:  The Local Finance Board passed its rules without change, despite my comments.  See below.  Note that they did promise to "develop a process whereby more information can be shared on the internet."
Readoption: N.J.A.C. 5:35

Local Government Ethics Law
 Proposed: October 21, 2013, at 45 N.J.R. 2295(a).
Adopted: March 12, 2014, by the Local Finance Board, Thomas H. Neff, Chair.
 Filed: March 13, 2014, as R.2014 d.060, without change.
 Authority: N.J.S.A. 40A:9-22.7.g.
 Effective Date: March 13, 2014.
 Expiration Date: March 13, 2021.
 
Summary of Public Comments and Agency Responses:

Public comments were submitted by: John Paff, President, Open Government Project, New Jersey Libertarian Party; Robert Wechsler, Director of Research, City Ethics, Inc.; Susan Scoblink-O'Neill; Barbara Sachau; and an anonymous commenter on behalf of Atlantic City Bitcoin, LLC, which are summarized below.

COMMENT: N.J.A.C. 5:35-1.2. John Paff, Susan Scoblink-O'Neill, and Barbara Sachau ask that the Local Finance Board (Board) relax N.J.A.C. 5:35-1.2, which requires confidentiality during the course of a preliminary investigation into a complaint, so that the public can get more timely information about ethics complaint filings. Commenters believe that no sound policy reason exists for conferring the current level of confidentiality upon allegations of misconduct by local government officers, particularly given their lower expectation of privacy than the average citizen. Information about complaints should be publicly disclosed after a finding of probable cause or a finding similar to that for public disclosure of New Jersey attorney ethics complaints under New Jersey Court Rule R.1:20-4(a) "when it has been determined that there is a reasonable prospect of finding ethical misconduct by clear and convincing evidence."

RESPONSE: The Board disagrees with the commenters' suggestion that substantial information on complaints become available for public disclosure at a point prior to either a notice of violation pursuant to N.J.A.C. 5:30-1.1(h) or a notice of dismissal pursuant to N.J.A.C. 5:30-1.1(i). The Board finds that information surrounding the complaint should not be disclosed prior to a formal investigation taking place. In contrast with the attorney ethics process referenced by the commenters, which requires "a reasonable prospect of a finding of unethical conduct by clear and convincing evidence" prior to a complaint issuing from a district [attorney] ethics committee, a notice of investigation may be issued after a preliminary investigation by Board staff only if the Board finds that the complaint is not outside its jurisdiction or frivolous, and that the complaint has a reasonable factual basis. This lesser standard recognizes that a formal investigation must be authorized and carried out before the Board can properly make a determination as to whether or not reasonable doubt exists as to whether the officer or employee is in conflict with the provisions of the Local Government Ethics Law pursuant to N.J.S.A. 40A:9-22.9.

COMMENT: N.J.A.C. 5:35-1.2. John Paff, Susan Scoblink-O'Neill, and Barbara Sachau ask that the Board establish a deadline for the creation of an interactive online database allowing citizens to query information on pending and closed ethics matters with hyperlinks to filed case documents.

RESPONSE: Current human resource and programming limitations prevent the Board from implementing a database such as what has been proposed by commenters. However, in lieu of formal rules, Board staff will begin developing a process whereby more information can be shared on the internet.
 -------------------------------------------------------

November 15, 2013

Patricia Parkin McNamara, Executive Secretary
Local Finance Board
Department of Community Affairs
P.O. Box 803
Trenton, New Jersey 08625-0803
(via e-mail only to dlgs@dca.state.nj.us)

Rule Proposal PRN 2013-149
Readoption of N.J.A.C. 5:35 - Local Government Ethics Law

Dear Ms. McNamara:

I wish to provide my written comments and recommendations regarding the captioned proposal.  For the reader's ready reference, the proposal is on-line here

I. Relax N.J.A.C. 5:35-1.2 so that public can get more timely information about ethics complaint filings.

This rule currently provides that all ethics complaints and even identifying information about complaints be kept "confidential and not subject to public disclosure during the course of the preliminary investigation or investigation to determine whether a violation of the Local Government Ethics Law has occurred . . ."

This would all be well and good if the Local Finance Board's staff expeditiously adjudicated complaints.  But, the reality is that complaints sometimes languish in the investigation stage for many years.  For example, on-line here are two pages from rosters of the Board's complaints from, respectively, July 20, 2012 and July 26, 2013, that I received from the LFB in response to separate Open Public Records Act (OPRA) requests.  I invite your attention to the complaints numbered 2006-011 and 2006-041. 

Complaint 2006-011 was redacted by the LFB from the 2012 roster and excluded from the 2013 roster.  This means that as of July 2013--more than seven years after 2006-011's filing--the public was still not permitted to know against whom the complaint was filed or even the agency with which the accused was associated.

Complaint 2006-041 was redacted from the LFB's 2012 roster but was disclosed on its 2013 roster, presumably because the matter was adjudicated or otherwise resolved between mid-2012 and mid-2013.  Upon resolution of the matter--some six to seven years after the complaint's filing--Upper Freehold Township citizens could finally inform themselves that Township Committeeman William Miscoski was accused of an ethics violation by Stephen Edelstein. At that point, any citizen could submit an Open Public Records Act request for the complaint and the LFB's disposition.

But, would not this information be much more useful to voters in, say, 2006 or 2007 rather than finally becoming available five or six years after Miscoski departed from public office? (The January 3, 2008 meeting agenda of the Upper Freehold Township Committee indicates that Miscoski's service as an elected official ended on December 31, 2007.)

From reviewing N.J.S.A. 40A:9-22, I find nothing that statutorily compels this level of confidentiality.  Thus, it appears that the decision to afford confidentiality to complaints and information about complaints during the investigative phase rest with the Board and is subject to the rulemaking process.

I assert that there is no sound policy reason for this level of confidentiality to be conferred upon allegations of misconduct by Local Government Officers, especially those who are elected.  After all, if I or any other ordinary citizen was charged, say, with a shoplifting offense, that allegation could be spread out in the newspapers and on Internet blogs immediately.  Why should public officials, who have much less of an expectation of privacy than an ordinary citizens, have charges alleging their ethical impropriety shielded from the citizens and voters they serve?

Even lawyers, who are arguably the most jealous proponents of keeping their profession's charges of misconduct out of the public eye, recognize that allegations against them should be made public after the ethics system has "determined that there is a reasonable prospect of a finding of ethical misconduct by clear and convincing evidence."  See R.1:20-4(a).  Why should not a similar test be applied to Local Government Ethics Law matters?

Accordingly, I recommend that N.J.A.C. 5:35-1.2 be amended so that substantial information about an ethics complaint be publicly disclosed after a finding of probable cause, or when a finding similar to that required in attorney disciplinary matters is made.

II. Amend N.J.A.C. 5:35-1.2 to get the Local Finance Board into the Internet age.

This is 2013 and on-line databases are not recent inventions.  Given this, why in the world should I or any other citizen have to file OPRA requests for rosters of open and closed LFB ethics complaints or for documents filed in those complaints that have become public?

Even the New Jersey Superior Court, as challenged as it is  technologically, has an on-line database (called the Automated Case Management System) that is capable, albeit awkwardly, of giving citizens some access to Superior Court, Civil Chancery and Law case information.  Even better is the federal court's PACER system, which allows case documents to be downloaded for an affordable price.

So, what's the problem with the Local Finance Board?  The Board has an Internet site and undoubtedly has access to Internet techs on the State payroll.  Why can't the LFB launch an interactive, on-line database that allows citizens to query for information on pending and closed ethics matters, with hyperlinks to filed case documents? Accordingly, I recommend that N.J.A.C. 5:35-1.2 be amended to establish a deadline within which the LFB promises to launch such an interactive, on-line database.

Very truly yours,

/s/ John Paff, Chairman
New Jersey Libertarian Party's
Open Government Advocacy Project
P.O. Box 5424
Somerset, NJ  08875-5424
Phone: 732-873-1251
Fax: 908-325-0129
E-mail: paff@pobox.com

Ewing police"extra-duty" payroll amount released.

In accordance with Judge Jacobson's ruling, Ewing Township has released a version of Officer Frederick K. Dow's payroll record that reveals that he made $36,340.50 in "extra-duty" pay between January 1, 2012 and December 28, 2012.  Both the pre-lawsuit and post-lawsuit versions of Dow's payroll record are on-line here.

Background information on this lawsuit is on-line here.


Sunday, November 3, 2013

Two recent OPRA cases: One win and one still pending decision

On Wednesday, October 30, 2013 and Friday, November 1, 2013, respectively, separate Superior Court judges heard argument in Paff v. Ewing Township (Mercer County) and Paff v. Galloway Township (Atlantic County). 

Ewing:

At issue in the Ewing case was whether the amount a police officer makes in "extra duty" pay is subject to disclosure.  (Extra duty pay is earned when an officer provides police services (such as traffic control duty) to a private person or company (such as a utility company).) 

Ewing took the position that since the source of extra duty pay is private rather than public funds, that extra duty pay is a non-disclosable personnel record and that disclosure would violate the officer's right to privacy.  Attorney Richard Gutman and I argued that extra duty pay is part of an officer's non-exempt "payroll record" as defined by N.J.S.A. 47:1A-10 and a police officer has no legitimate privacy interest in earnings derived from work done in uniform. 

On the personnel record claim, Mercer County Assignment Judge Mary C. Jacobson ruled that OPRA does not limit disclosure of payroll information to only those payments that have government funds as their source.  She held that OPRA, which must be construed in favor of openness, mandates disclosure of each financial element of a government employee's paycheck regardless of its source.

On the privacy interest, Judge Jacobson found that any privacy interest an employee has in his or her finances is outweighed by the public interest in knowing the employee's salary so that citizens can properly perform their watchdog role. 

Ultimately, she ordered Ewing Township to provide me with an unredacted version of the record that they previously provided.  The redacted version is on-line here.

Galloway:

At issue in the Galloway case is whether a government agency is required to produce an e-mail log showing the sender, recipient, date and subject line of each e-mail sent by a specific government employee during a specified period of time.  An example of the kind of log I requested, which was generated by Galloway in 2012, is on-line here.

While conceding that it previously produced e-mail logs and still has the capability of doing so, Galloway, citing Logue v. Borough of Fieldsboro, GRC Case No. 2008-223, argued that producing a log would require it to create a new record that does not already exist.  Attorney Walter Luers and I argued that since the Township's e-mails are digitally stored on a computer, any report that can be queried from the e-mail system is a public record available under OPRA.

Atlantic County Judge Nelson C. Johnson was clearly intrigued by the issue and asked both parties to submit additional briefs.  He is expected to rule on the matter before the end of the year.

Monday, September 30, 2013

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.

Ganzweig v. Township of Lakewood
Ocean County, Docket No. OCN-L-2392-13
Hon. Vincent J. Grasso, A.J.S.C.
September 27, 2013
Click here for the opinion.

Summary:  Records that later form the basis of a police internal affairs investigation do not become retroactively exempt from OPRA's disclosure requirement, declining to follow Blaustein v. Lakewood Police Department, Government Records Council Complaint No. 2011-102 (June 26, 2012)

Friday, September 27, 2013

Cape May County Volunteer Fire Department President and Fire Board Commissioner appeals from conflict of interest finding.

On June 26, 2013, Robert Zimmerman, President of the Rio Grande Volunteer Fire Department in Cape May County as well as an elected Fire Commissioner, appealed from a "Notice of Violation" issued to him on May 23, 2013 by the New Jersey Local Finance Board (LFB).  The LFB issued the Notice of Violation after finding that Zimmerman violated the Local Government Ethics Law

The LFB cited Zimmerman for "simultaneously serving as Commissioner of Fire District #2 and President of the Rio Grande Fire Company in the same fire district" which the LFB held was "an incompatibility of office" that "might reasonably be expected to impair his objectivity or independence of judgment."  In its decision, the Board determined not to fine Zimmerman for this violation as long as he resigned one office or the other within 30 days.

In his appeal, Zimmerman said only that he feels that his situation is "unique due to the fact that I am only one vote on a Board of 5 members to decide what gets done and what does not get done, and also that our money is not commingled."

The matter, which has been transferred to the Office of Administrative Law as a contested case, is on-line here.

Wednesday, September 25, 2013

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.

Burke v. Borough of Mantoloking
Ocean County, Docket No. OCN-L-1642-13
Hon. Vincent J. Grasso, A.J.S.C.
September 17, 2013
Click here for the opinion.

An OPRA request worded as follows is sufficiently specific to require fulfillment.  "Correspondence and communications between officials or employees of Mantoloking and officials or employees of the State of New Jersey between October 28, 2012 and the present regarding closing and opening roads in the Borough of Mantoloking."

Monday, September 9, 2013

45-day statute of limitations on GRC actions sought.

In an August 29, 2013 letter to the New Jersey Government Records Council (GRC), Dominic P. DiYanni of Seaside Heights, attorney for Franklin Township Fire District No. 1 Board of Fire Commissioners (Somerset County), is requesting the GRC to grant of stay of Interim Orders in ten (10) denial of access cases.  DiYanni is seeking the stay so that the GRC can rule, one way or the other, on whether Open Public Records Act (OPRA) denial of access complaints brought in the GRC are subject to the same 45-day statute of limitations as similar actions brought in Superior Court.  DiYanni suggests that if the GRC holds that the 45-day limitations does not apply, he will appeal that determination to the Superior Court, Appellate Division.

DiYanni argues that it is illogical to have a 45-day limitations period for the Superior Court while no limitations period applies to actions brought before the GRC. "[R]equestors should not be able to circumvent the 45 day statute of limitations in filing in one of the two venues provided for under the Open Public Records Act by simply waiting as long as they wish to file their matter with the Government Records Council," DiYanni wrote.

DiYanni's letter is on-line here.  The records requestor in the case is Jeff Carter who is represented by John A. Bermingham, Jr. of Camden. 

(Disclosure:  The author, John Paff, serves as a volunteer firefighter in Fire District No. 1 and receives financial compensation from the Fire District in the form of clothing allowances, fire fighting training mileage and meal reimbursements and other amenities.)

Tuesday, August 27, 2013

OPRA Loss in Appellate Division

Today, August 27, 2013, the Appellate Division of the New Jersey Superior Court, in an unpublished decision, affirmed a trial court's ruling that the Atlantic City Alliance, Inc. (ACA) was not a "public agency" that is subject to the Open Public Records Act (OPRA).  The case is captioned Paff v. Atlantic City Alliance, Inc. and Walter M. Luers of Clinton was my attorney.  The opinion is on-line here

In 2011, legislation was passed that sought to revive Atlantic City's tourism and gaming industries.  A special "Atlantic City Tourism District" was established to be managed by the Casino Reinvestment Development Authority (CRDA). The legislation authorized, but did not require, the "majority of the casino licensees . . . whose investors have invested a minimum of $1 billion in Atlantic City" to form a private, non-profit corporation to "undertake a full scale, broad-based, five-year, marketing program" to promote Atlantic City tourism and gaming.  This private corporation, if the casinos elected to establish it, would join in a "public-private partnership" with the CRDA.  The partnership, funded by $30 million contributed by the casino members, would work together to promote tourism.  Five casinos opted to create ACA, which is the private, non-profit corporation that the legislation anticipated.

My view is and was that if the government establishes a legal framework that calls for the creation of a nominally private corporation that ends up doing tasks that would have been performed by a public agency had the private entity not been created, that private corporation, despite its "private" label, is a "public agency" under OPRA.  Otherwise, governments could avoid public scrutiny simply by contracting its functions out to private parties. 

My case against the ACA is one of several cases which have helped establish a better understanding of where the line is drawn between public agencies and private corporations.  Today's opinion compares and contrasts the ACA with other nominally private corporations with which the courts have previously held were clothed with state power to a degree sufficient to invoke OPRA.

Today's decision, albeit a loss, has value because it helps clarify how deeply the government can entangle itself with private corporations before its entanglement triggers OPRA.

Thursday, August 22, 2013

Lawsuit seeks access to police "extra-duty" salary.

09/07/13 Update:   The case has been scheduled for a hearing before Hon. Mary C. Jacobson, A.J.S.C. in Trenton on Wednesday, October 30, 2013 at 11 a.m.  The signed Order to Show Cause is on-line here.
 When you see a police car protecting a construction site on a public roadway, the taxpayers are probably not paying that officer's salary.  Instead, the construction or utility company pays the police agency for the officer's salary and for use of the police car and the agency in turn pays the salary over to the officer. This is known as "extra-duty" and can be a lucrative source of income for local police officers.

I requested to know the amount of "extra-duty" pay a particular Ewing Township (Mercer County) police officer received during 2012, but the Township denied my request.  The Township's position is that "payment for voluntary, off-duty work paid by a third party does not involve the expenditure of public funds" and is not a public record.

With the help of attorney Richard M. Gutman of Montclair, I filed suit.  I contend that "extra-duty" work is different than "off-duty" work.  An example of "off-duty" work is a police officer who has a part-time job working, in civilian clothes, as a bouncer in a nightclub.  Clearly, the public would have no right to know the officer's income from the nightclub.  But, payments made through the Township's payroll system to police officers who provide uniformed, law enforcement services to third parties should be considered a "payroll record" as defined by N.J.S.A. 47:1A-10 of the Open Public Records Act (OPRA).  This is especially true because unlike "off-duty" work, "extra-duty" work is is covered by the Township's worker's compensation benefits, State accidental disability and death benefits.  The brief and certification filed in Paff v. Township of Ewing, Docket No. MER-L-1758-13, are on-line here.

Thursday, August 15, 2013

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.

Mark's Advanced Towing v. City of Bayonne
Hudson County, Docket No. HUD-L-864-10
Hon. Bernadette N. DeCastro, J.S.C.
October 22, 2010
Click here for the opinion.

It was unreasonable for the City to deny as overbroad a request for "any and all applications for towing license for the City of Bayonne including renewals for license year 2010."

Thursday, August 8, 2013

My letter to a fire district regarding closed session practice

Fire districts are typically not used to having their procedures questioned.  I will post the district's response to my letter below, if any, on this blog.

August 8, 2013

Robert F. Gaskill, Esq.
40 E Main Street
Moorestown, NJ 08057-3310
via e-mail to rgaskill@gaskill-law.com

RE:    Florence Township Fire District No. 1

Dear Mr. Gaskill:

I've reviewed some of your client's executive session meeting resolutions and minutes, which I've placed on-line here.

I ask that you please review the following four questions with your client and let me know if you are willing to make any changes in the Fire District's closed session practice.

1. Do you believe that minutes, such as those kept of the May 28, 2013 meeting, stating only that "Discussed issue of employee punctuality - Directive to Battalion Chief Mullen to implement same" are "reasonably comprehensible" as required by N.J.S.A. 10:4-14?

2. Do you believe that the general "issue of employee punctuality," apart from discussing any particular employees who may have been late, qualifies for private discussion under N.J.S.A. 10:4-12(b) or do you feel that the particular employees' lateness should have been discussed privately while the general issue of punctuality should have been discussed publicly? 

3. Should the Board's closed session minutes recite the time and place of the meeting and the members in attendance?

4. Do you believe that the motions that authorize the Board's closed sessions conform to N.J.S.A. 10:4-13(b)?

Thank you.

cc.    Barb Mayer, Board Secretary
         bmayer@ftfd40.org

Update: 08/15/13

I received the following e-mail from Fire District attorney Robert Gaskill: 
"I now have had an opportunity to review your e-mail of August 8, 2013.  I have also had an opportunity to discuss its contents with the Board of Fire Commissioners at its meeting of Monday, August 12, 2013.  I discussed with the Board your four (4) matters of inquiry and advised them of my opinion that they certainly do have merit.   I advised the Board and the Board agreed, that in the future it will be more diligent in keeping minutes which are 'reasonably comprehensible'  pursuant to the Statute.  The Board will recite the time and place of the meeting as well as the members in attendance and will be more dutiful in its motion to authorize closed sessions."

Wednesday, July 31, 2013

Tie vote dismisses ethics charge against South Harrison Deputy Mayor

On April 9, 2013, the Local Finance Board (LFB) notified South Harrison Township (Gloucester County) Deputy Mayor Robert Diaz that he had narrowly escaped a finding that he had violated the Local Government Ethics Law (LGEL).

In his letter, LFB chairman Thomas H. Neff advised Diaz that the LFB considered whether Diaz violated the LGEL when he spoke on behalf of Unity Service Ambulance Association, where he served as a Captain, during a Township Committee meeting.  Such conduct, according to Neff's letter, would violate a provision of the LGEL that prohibits public officials from representing anyone but the local government in any cause or proceeding before any board or agency of that local government.

Neff said that a motion to find Diaz guilty of the ethics infraction failed by a vote of 2 to 2. 

The April 9, 2013 dismissal letter is on-line here.

Tuesday, July 30, 2013

Voorhees meeting minutes glossed over a few details

The Voorhees Township Committee's February 11, 2008 Closed Session minutes innocuously state:
A discussion ensued regarding whether the Township should continue to pursue the Medi-Build site or explore the purchase of other sites. [Deputy Mayor Mario] DiNatale and [Committeeman Harry] Platt disagreed on the manner in which Medi-Build was being pursued. Mr. DiNatale also expressed disappointment that Medi-Build had received a copy of the appraisal of their site. At this point, Mr. DiNatale left the meeting.
A police "investigation report" authored the same day by Voorhees Police Chief Keith Hummel, however, provides a bit more context and detail.  According to Hummel's report, DiNatale and Platt were in a heated argument when DiNatale said "let's take this outside and settle it."  Hummel then states that "Deputy Mayor DiNatale then placed his hands on Committeeman Platt's throat as if he was attempting to choke him." 

Hummel then "escorted Deputy Mayor DiNatale from the conference room," took him to police headquarters and processed him.  No charges were filed against DiNatale and the Camden County Prosecutor's Office declined to pursue indictable charges.

The minutes, Hummel's report and prosecutor's letter are 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.

Grossman v. Office of the County Prosecutor
Ocean County, Docket No. OCN-L-533-13
Hon. Vincent J. Grasso, A.J.S.C.
July 26, 2013
Click here for the opinion.

Analyzes requestor's right, under both OPRA and the common law, to disclosure of county prosecutor's records relating to the investigation and prosecution of a closed criminal case.

Monday, July 15, 2013

Winslow school board asked to correct Meetings Act deficiencies.

Following is my July 15, 2013 letter to the Winslow Township (Camden County) Board of Education asking it to a) adopt my more precise and informative form of closed session resolution and b) to stop discussing general policy matters in closed session. Unfortunately, violations such as these are common among local governments. 

I encourage readers to submit Open Public Records Act (OPRA) requests to their own town councils and/or school boards.  Simply request "the resolutions, as required by N.J.S.A. 10:4-13, authorizing the three most recent closed or executive sessions held by [name of governing body]."  If you receive resolutions that, like Winslow's, describe the closed session topics broadly and vaguely, you may want to modify the form of resolution I sent to Winslow for your town and/or school board and encourage them to adopt it.

July 15, 2013

Patricia Davis, President and Members of the
Winslow Township Board of Education
40 Cooper Folly Rd
Atco, NJ  08804
mccoyty@winslow-schools.com
Dear President Davis and Board Members

I serve as chairman of the New Jersey Libertarian Party's Open Government Advocacy Project.  I invite the Board's attention to areas of noncompliance with the Open Public Meetings Act (OPMA) and request that the Board discuss these issues at its July 24, 2013 meeting.  

The Board's nonpublic (i.e. closed or executive) meeting resolutions and minutes from three meetings in late 2011 are on-line here.  The resolutions are not precise enough to comply with N.J.S.A. 10:4-13 and the minutes reflect that matters were discussed privately that should have been discussed publicly.

As for the resolutions, they describe the matters to be discussed in private session very generally, using terms such as "student hearings," "personnel matters," and "legal matters."  (The minutes from a more recent meeting, held on June 12, 2013 (on-line here) indicate that the same general terms are currently used.) The resolutions "should contain as much information as is consistent with full public knowledge without doing any harm to the public interest."  See, McGovern v. Rutgers, 418 N.J.Super. 458, 470 (App. Div. 2011) reversed on other grounds 211 N.J. 94 (2012).  For example, why could not the Board have publicly disclosed, in its November 9, 2011 resolution, that a "property dispute between the Winslow Township Board of Education and the Township of Winslow" was going to be discussed instead of telling the public that merely "legal matters" would be discussed?  I have uploaded here and here Word and PDF versions of form of closed session resolution that I ask the Board to use going forward. 
As for the minutes, most of the items under "Board Policy Matters" should have been discussed in public.  For example, the "policy regarding the structure of Board Committees and the number of members required to be present to conduct a meeting" which was privately discussed on November 9, 2011 does not appear to meet any of the exceptions enumerated in N.J.S.A. 10:4-12(b).  These exceptions must be strictly construed against excluding the public from a meeting. Hartz Mountain Industries, Inc. v. New Jersey Sports & Exposition Authority, 369 N.J.Super. 175, 186 (App. Div. 2004), certification denied 182 N.J. 147 (2004).
Would you please contact me, or have Solicitor Long contact me, regarding these issues after your July 24, 2013 meeting?

Very truly yours,

/s/ John Paff
cc. Howard C. Long, Jr., Board Solicitor
hlong@wlwklaw.net


Friday, July 12, 2013

Is the Fort Lee school board violating the Meetings Act?

July 12, 2013

Dennis McKeever, Esq.
Lindabury McCormick Estabrook & Cooper,PC
53 Cardinal Dr
Westfield, NJ 07090-1020
dmckeever@lindabury.com

RE:    Fort Lee Board of Education, Private Session Minute Policy

Dear Mr. McKeever:

I chair the New Jersey Libertarian Party's Open Government Advocacy Project which seeks to ensure governmental accountability and transparency.  I write to you because public records indicate that you are counsel for the Fort Lee Board of Education.

The result of a recent Open Public Records Act request causes me to conclude that the Board's practice regarding recording and maintaining its nonpublic (closed or executive) meeting minutes violates N.J.S.A. 10:4-14.  I have uploaded relevant records to the Internet here.

As you will note, the Board went into nonpublic session between 7:02 p.m. and 7:58 p.m. on March 26, 2012.  Yet, when I asked for the minutes reflecting what had occurred during that fifty-six minute interval, Interim School Business Administrator/Board Secretary Robert Brown informed me that minutes for that interval "do not exist."  Executive session minutes from June 10, 2013, June 20, 2013 and June 26, 2013 suggest that the Board also did not record minutes of the nonpublic intervals that took place during those meetings. This evidence causes me to conclude that the Board is not complying with Attorney General Formal Opinion No. 1-1998 ("[T]he Open Public Meetings Act specifically requires that the public body maintain 'reasonably comprehensible minutes' of all meetings including executive sessions....' Thus, the law unambiguously requires minutes of closed or executive sessions to be made and maintained.")

Would you please raise this issue at the July 15, 2013 Board meeting?  Please be advised that if necessary, I will not hesitate to  file a lawsuit against the Board for declaratory and injunctive relief pursuant to N.J.S.A. 10:4-16.  Hopefully, I will receive prompt assurance from your office or Mr. Brown that the Board will, going forward, fully comply with the Open Public Meetings Act by keeping reasonably comprehensible minutes of all its meetings, including those not open to the public.

Thank you for your attention to this matter.

Very truly yours,

John Paff

cc. Robert Brown, Interim School Business Administrator/Board Secretary
(via e-mail to rbrown@flboe.com)

Thursday, July 11, 2013

Galloway Township not in compliance with Meetings Act Consent Judgment

I sent the following letter today to Galloway Township's (Atlantic County) Mayor and Council.

July 11, 2013
Hon. Don Purdy, Mayor and members of the
Galloway Township Council
300 E. Jimmie Leeds Rd
Galloway, NJ 08205
(via e-mail only to TKay@gallowaytwp-nj.gov)

RE:    Paff v. Galloway et al
         Docket No. ATL-L-3392-08

Dear Mayor Purdy and Council members:

As you are aware, Galloway Township and I entered into a Consent Judgment on May 27, 2009 that governed the Township Council's closed meeting procedure.  A copy of that Consent Judgment, with the Memorandum of Understanding, is on-line here.   By way of a recent Open Public Records Act (OPRA) request, I obtained the revised resolution that authorized the Council's June 25, 2013 closed session and a heavily redacted set of minutes from that closed session.  These documents are on-line here and here.  After reviewing these records, I have concluded that the Township Council has violated the terms of the Consent Judgment.

First, the resolution indicates that the Council was going into closed session to discuss three issues--two of which were justified by N.J.S.A. 10:4-12(b)(7) (lawsuits/contracts/attorney client privilege) and one of which justified by by N.J.S.A. 10:4-12(b)(8) (personnel matters).  Yet the meeting minutes show only two headings--one for "Attorney Client Privilege / Appointment of Special Counsel" and "Shared Services Agreement with the City of Absecon."  Thus, it appears that the Council erroneously informed the public that three issues would be privately discussed when only two issues were actually discussed.

Second, while the resolution disclosed only that "Contract Negotiations" would be discussed, the minutes and Resolution 190 of 2013, also passed on June 25, 2013, disclose that the "contract" was with the City of Absecon and would establish shared services of the Township Manager. The Council's failure to include these details in its resolution violated 2.b of the Consent Judgment which requires such resolutions to "set forth as much information about the topic(s) to be privately discussed that can be disclosed without undermining" the closed session.  Clearly, the nature of the contract and the fact that it was with Absecon could have been publicly disclosed without jeopardizing any legitimate governmental or privacy interest.

Be advised that I will be checking future executive session minutes and resolutions for compliance with the Consent Judgment.  If I find them to be out of compliance, I will institute a R.1:10-3 motion without further notice.

Very truly yours,

John Paff
 I received the following response from the Township Attorney.
Michael Fitzgerald
July 17, 2013 10:06 AM
        
Mr. Paff:  I am the Municipal Attorney for Galloway Township and I received a copy of your email from the Galloway Clerk and I would like to assure you that the Township and  particularly the current Clerk have endeavored to comply with OPRA and the Consent Judgment to the fullest extent possible. To the extent that there is a lack of what you perceive to be full compliance, it results from either inadvertence or an honest disagreement with respect to the requirements of OPRA or the Consent Order.  In either case, if at any time you believe that there has been such non-compliance, please bring it directly to my attention, explain your position on the issue and I will make a good faith attempt to resolve the issue appropriately. I recognize that we may not always agree on the  specific application of OPRA in every situation, but I actually appreciate the sincerity of your  efforts in this area and having represented local governments for many years I am willing to acknowledge the need for greater openness, even if it can be inconvenient for the local officials.

Monday, July 8, 2013

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.

Linda S. Baum v. Middletown Public Library Board of Trustees, et al
Monmouth County, Docket No. MON-L-2145-13
Hon. Lawrence M. Lawson, A.J.S.C.
July 1, 2013
Click here for the opinion.

Township Committeeman caused an OPRA request to be submitted to the public library for e-mails regarding library business between the Library Director and two private citizens.  Plaintiff, who is politically active in the community and one of the parties to the requested e-mails, sued to prevent release of her e-mails, asserting a privacy interest.  Judge Lawson held that Plaintiff did not meet the standard required for issuance of an injunction or temporary restraints.

Monday, July 1, 2013

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.

Betsy Cross v. Township of Wall et al
Monmouth County, Docket No. MON-L-1041-13
Hon. Lawrence M. Lawson, A.J.S.C.
June 21, 2013
Click here for the opinion.

Judge Lawson held that it was improper for the custodian to redact the entire account number from bank statements that were disclosed in response to an Open Public Records Act (OPRA) request.  While the court recognized the substantial risk of disclosing the entire bank account number, it agreed with Plaintiff that the last four digits of the account numbers could be disclosed, consistent with R.1:38-7(b), so that a requestor who is looking at several bank statements can differentiate one account from another.


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.

Thomas Foregger v. Township of Berkeley Heights, et al
Union County, Docket No. UNN-L-4121-12
Hon. Regina Caufield, J.S.C.
June 14, 2013
Click here for the opinion.

Judge Caufield held that a forensic audit report created by Certified Public Accountant that Berkeley Heights "directly utilized" to prosecute removal and tenure proceedings against the Township's former Chief Financial Officer was subject to disclosure under both the Open Public Records Act and the common law right of access, provided that the names of individual employees interviewed were redacted.

Saturday, June 29, 2013

State fines Burlington County municipal lawyer $500 for financial disclosure violation.

By letter of June 25, 2013, the Local Finance Board levied a $500 fine against a municipal attorney who omitted sources of income from his financial disclosure filings.  Nicholas J. Costa, who serves as Municipal Attorney for Wrightstown Borough as well as Municipal Prosecutor for several other area towns, must either pay the $500 fine within ten days or appeal the decision within thirty days.

According to the "Notice of Violation" authored by Thomas H. Neff, Chair of the Local Finance Board, Costa earned more than $2,000 from each Florence and Mount Laurel Townships during 2010 but failed to disclose those income sources on his Financial Disclosure Statement.  Filing of Financial Disclosure Statements is required by the New Jersey Local Government Ethics Law.

The Board's investigation was prompted by a March 19, 2012 ethics complaint filed John Paff, Chairman of the New Jersey Libertarian Party's Open Government Advocacy Project.  The Projects seeks to make government agencies and officials more transparent and accountable to the public.

The Board's Notice of Violation and the Party's complaint are on-line here.

Thursday, June 27, 2013

Court: Egg Harbor must disclose police report regarding "asleep at the wheel" cop.

In a twenty-three page opinion issued on June 25, 2013, Atlantic County Superior Court Assignment Judge Julio L. Mendez ruled that the public is allowed to see a report written by Egg Harbor Township Police Sergeant Michael Hughes soon after Northfield Police found an off-duty Egg Harbor Township officer named Jeffrey Lancaster asleep behind the wheel of his personal vehicle during the early morning hours of February 27, 2011.  Judge Mendez's opinion and order are on-line here and background on the lawsuit is on-line here.

Judge Mendez found that since there was no internal affairs investigation pending at the time Hughes wrote his report, it was not subject to the Open Public Records Act (OPRA) exception that restricts access to records that "pertain to an investigation in progress."  Judge Mendez, noting that police officers serve "in a position of trust" found that disclosure of the report "will only fortify the trust and credibility afforded to the Egg Harbor Township police department by its citizenry." The suit was filed by Walter M. Luers, Esq. of Clinton on behalf of John Paff, the plaintiff.

The court did allow certain "legitimately confidential information" to be redacted from Hughes' report and denied access to Lancaster's preliminary and final disciplinary records that arose from the incident.

Friday, June 21, 2013

Court dismisses lawsuit by arrestee who lied about conviction status on OPRA form.

Today, June 21, 2013, the Appellate Division of the Superior Court affirmed a lower court's dismissal of Michael Taffaro's false arrest lawsuit against the Borough of Ridgefield and Borough Mayor Anthony A. Suarez.  The court's opinion is on-line here.

According to the opinion, Taffaro, who claimed to have been put on Suarez's persona non grata list after having publicly criticized him during his mayoral campaign, had been convicted of fourth degree contempt,had been convicted of fourth degree contempt, a conviction that was later reversed by the New Jersey Supreme Court.  But, before the Supreme Court's reversal of the conviction, Taffaro had submitted an Open Public Records Act (OPRA) request form to the Borough Clerk that contained the standard language regarding the requestor's conviction status.  On the form, Taffaro certified that he had not been convicted, even though the Supreme Court had yet to reverse his conviction.

According to Taffaro, Ridgefield police filed a complaint against him on August 6, 2007 for making a false written statement, which resulted in his August 16, 2007 arrest, a strip search and detention at the Bergen County Jail. 

In response to Taffaro's civil suit, lower courts found that since the police had probable cause to arrest him, his false arrest claim must be dismissed.  Today's Appellate Division ruling affirmed that dismissal.

Thursday, June 13, 2013

OPRA hearing tomorrow in Belvidere

On Friday, June 14, 2013 at 9:30 a.m., Warren County Superior Court Judge Amy O'Connor will hear argument in the case of Paff v. Warren County Prosecutor, Docket No. WRN-L-34-13.  My complaint, certification and brief in this case, filed by the Law Office of Walter M. Luers, are on-line here

At issue is an investigation of an incident, shortly after Hurricane Sandy, in which an employee of the Warren County Jail used a county-owned generator for his or her own personal use.  The County Prosecutor, who declined to seek criminal charges against the employee, provided me with some investigative documents from which the employee's name was redacted.  I believe that the public is entitled to know the employee's identity.

The public is invited to attend and observe tomorrow's hearing.  It will be held at the Courthouse, 413 2nd Street, Belvidere.

State Firemen's Association subject to OPRA

In a decision handed down today, June 13, 2013, a three-judge panel of the New Jersey Superior Court, Appellate Division, ruled that the New Jersey State Firemen's Association (NJSFA) "is a public agency under the Open Public Records Act (OPRA)."

I am the plaintiff in the case.  I have served since 1992 as a volunteer firefighter and am a life member of the NJSFA.  I submitted an OPRA request to the NJSFA in September 2011 which was denied because the NJSFA asserted that it was not subject to OPRA.  With Richard Gutman of Montclair as my attorney, I filed suit challenging the denial and my suit was dismissed on February 17, 2012 by Union County Superior Court Judge Regina Caufield.  I appealed and the Appellate Division, in a published decision, reversed the dismissal and remanded for further proceedings.  Caufield's decision is on-line here and the Appellate Division's is on-line here.

The Appellate Division found that the NJSFA is an "independent State . . . instrumentality" within OPRA's definition of "public agency."  N.J.S.A. 47:1A-1.1.  Taking guidance from three previous Supreme Court decisions, the Appellate Division found that the NJSFA's "formation, structure, and function render it public agency under OPRA."  The court found that the NJSFA, which received nearly $25 million in taxes on fire insurance premiums received by non-domestic insurance companies in 2010, "owes its existence to state law, which authorized its creation, granted it powers, including powers over local associations, and barred the creation of a competing state association."  The court noted that a prior instance of a $600,000 embezzlement by an NJSFA treasurer "reinforces [the Court's] conclusion that subjecting the Association to OPRA would fulfill the legislative intent to inform citizens interested in combating misconduct and corruption."

Further background on the lawsuit is on my blog here.  The NJSFA's official OPRA request form is on-line here.

Tuesday, May 7, 2013

No attorney fees for common law access cases

By way of a May 2, 2013 order, the New Jersey Supreme Court declined to consider my appeal of the Appellate Division's reversal of a trial court's award of attorney fees  in a case where I won access to records under the common law right of access but was denied access under the Open Public Records Act.  The case is Paff v. Borough of Garwood and background can be found here.

The effect of this ruling is that attorney fees are not available to records requestors who successfully sue for access under the common law.

The Appellate Division's opinion and the Supreme Court's order are on-line here and here, respectively.



Monday, April 29, 2013

Secretary of State OPMA Guidelines

Published in 1992, the Department of State's "Guidelines on the Open Public Meetings Law" still contains relevant information that can be used to persuade and educate public bodies.  For example, page 15 confirms that public meeting minutes must be disclosed when they are prepared, not withheld until after they are approved by the public body.

Tuesday, April 9, 2013

How much is the Warren County Pollution Authority Director's annual salary?

Update: 04/11/2013:

I received the following e-mail today from Mr. Williams:
  
Mr. Paff,
Your e-mail below has been forwarded to all the PCFA Board Members.
You will also find listed below my annual salary as reported on the W-2 forms for the following years:
2008=$96,000
2009=$97,920
2010=$99,879
2011=$106,969
2012=$106,969
2013= As of this date, the Authority has not set or discussed employee raises for 2013, therefore as of this date my salary for 2013 remains at $106,969.
 
Jim
 ---------------------------------------------------

April 9, 2013

Robert Davenport, Chairman and members of the Board of the
Pollution Control Financing Authority of Warren County
P.O. Box 587
Oxford, NJ  07863
(via e-mail only to jwilliams@pcfawc.com)

Dear Chairman Davenport and Board members:

As you can see from the subject line of this e-mail, I am interested in learning the answer to what should be a fairly straightforward question: How much does James J. Williams get paid as the Authority's Director of Operations?

A colleague of mine has been working on obtaining an answer since February.  First, she submitted an Open Public Records Act (OPRA) request for the contract between Williams and the Authority.  She received a February 22, 2013 letter from the Authority advising that the Authority has no such contract. 

Next, she submitted an OPRA request for "any resolutions or writings that set forth the basis for [Williams'] compensation."  In response, she received twenty pages of records consisting of the Authority's regular and executive meeting minutes.  I have put those twenty pages on-line here for your ready reference and my analysis of them follows:
  • The April 9, 2008 executive session minutes indicate that Williams was awarded a "salary approval of $96,000."  No regular meeting minutes regarding this salary were provided.
  • Page 2 of the March 11, 2009 regular meeting minutes indicate that "2009 Salaries . . . will be discussed in Executive Session."  Page 3 of those minutes indicate that Williams' salary was indeed discussed behind closed doors and that the following motion was unanimously approved in public: "Mr. Williams' salary was motioned for approval by Mr. Accetturo, seconded by Mr. Yanoff."  Note, however, that the amount of his salary was not set forth in the motion.
  • The only reference to salaries in the April 28, 2010 regular meeting minutes is Mr. Yanoff's successful motion, on page 3, "to approve pay increases of 2% across the board."  This informs the public that Williams, among others, received in 2010 102% of what he had been paid in 2009.  This information, of course, is of little utility since actual amount Williams was paid in 2009 remains undisclosed.
  • Page 5 of the February 23, 2011 regular meeting minutes indicates that Williams received "what basically works out to be a 5% increase . . . for exemplary job performance."  Again, however, the base amount to which this percentage increase applies was not disclosed.  The February 23, 2011 executive meeting minutes reveal nothing more than that "job titles and salaries" were the sole discussion item during that one hour and three minute closed door meeting.  But, fortunately, DataUniverse shows that Williams' 2011 salary was $106,968.
  • Since they don't mention Williams' salary, it's not clear why the June 27, 2012 regular meeting minutes were provided.  The only reference to salaries is Mr. Mach's motion, on page 3, to approve a 1.5% increase for all non-salaried employees.  Since Williams is evidently on salary, this motion apparently does not apply to him.
It's more than a bit distressing that the Authority doesn't have records that plainly set out important facts such as the salaries of top officials.  Needed are public meeting minutes that contain resolutions such as "Resolved, that the salary of Director of Operations James J. Williams shall be $120,000 for the 2013 calendar year."  Such would enable interested members of the public to easily obtain information about the Authority's operations.

Do you agree with me that plainer, clearer resolutions would be in the public's interest?  If so, will you agree to discuss this e-mail with the Board at its April 22, 2013 meeting?

If you do elect to discuss this e-mail at the meeting, I would also ask that you discuss the Board's apparent policy of discussing and deciding Mr. Williams' salary during executive session.  While I understand why the Board may want to privately and candidly discuss Mr. Williams' performance outside of his presence, I note that both the April 9, 2008 and February 23, 2011 executive session minutes show that Mr. Williams attended these closed-door meetings.  Thus, the only people who were kept in the dark about Mr. Williams' salary were citizens and taxpayers--those for whom the Open Public Meetings Act was designed to inform.

A dose of transparency would, in my view, be especially good medicine for the PCFA given the controversy that has surrounded it lately.  See, e.g. "Warren County Pollution Control Financing Authority investigation labeled 'whitewash' by whistleblower," Express-Times, August 5, 2012 and "Warren County landfill looks to recoup $116,565 stolen by clerk," Express-Times, March 28, 2012.

Although OPRA doesn't require the Authority to create records that do not exist, would you extend the courtesy of creating and sending me a record that lists Mr. Williams' annual compensation (i.e., the amount reported on his W-2 form) for each year beginning in 2008 and ending with what is projected for 2013? 

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

Very truly yours,

John Paff, Chairman
New Jersey Libertarian Party's
Open Government Advocacy Project
P.O. Box 5424
Somerset, NJ  08875
Voice: 732-873-1251
Fax: 908-325-0129
e-mail: paff@pobox.com