Thursday, January 24, 2013

Wrightstown Mayor, wife again cleared of ethics charge.

On July 10, 2012, I blogged about the New Jersey Local Finance Board (LFB) clearing Wrightstown (Burlington County) Mayor Thomas Harper and his wife Mary Karen Harper of violating the Local Government Ethic Law (LGEL).  I had filed a complaint against the Harpers because they, while members of Local Land Use Board, testified on April 14, 2009 in support of a land use application that a) was pending before the same land use board  upon which they served, and b) concerned a property that was adjacent to their residence.  I argued that even through they recused themselves from the land use hearing, it was still inappropriate for them to testify in support of their neighbor's application in their capacity as private citizens.

On July 24, 2012, two weeks after the LFB dismissed my complaint, the New Jersey Libertarian Party and I filed another complaint against the Harpers based on the same set of facts, plus one more: That Mrs. Harper had received, the year prior to her testimony, in excess of $2,000 from one of the "partner and clients" of the applicant.  I felt that Mrs. Harper testifying in support of an applicant after having recently having been on the applicant's "partner's or client's" payroll constituted a clear violation of the LGEL.

The LFB, however, disagreed.  In his January 18, 2013 letter, LFB Chairman Thomas H. Neff reported that the LFB had held that public officials are "not prohibited from representing themselves in negotiations or proceedings concerning their own interests" and that such "[s]elf-representation is permitted under the [LGEL] regardless of whether Mrs. Harper is an employee of a company that is allegedly a 'partner and client' of the applicant."  Accordingly, the LFB dismissed the complaint as "having no reasonable factual basis for violation of the Local Government Ethics Law."

The Libertarian Party's complaint and the Local Finance Board's dismissal letter are on-line here. We hope that publication of this matter will help local government officers better determine the contours of the Local Government Ethics Law.

John Paff, Chairman
New Jersey Libertarian Party's
Open Government Advocacy Project

P.S.  The Harpers have beat a total of three ethics charges I have brought against them.  Information on the third complaint is on-line here.

Friday, January 11, 2013

Mixed bag in Camden today

Update: Judge Holden's Order is on-line here.

I attended my Open Public Meetings Act (OPMA) hearing today, January 11, 2013, before Judge Stephen M. Holden in Camden.  (Background information and case documents are available here.)  Following are the court's main holdings:

1. Even though the February 5, 2008 order that I sought to enforce required Lawnside to keep "reasonably comprehensive" minutes of its future closed meetings, Judge Holden decided, based on the context of the order, that Judge Orlando (now retired), who had entered the order, used the word "comprehensive" by error and actually meant to use the work "comprehensible."  This ruling resulted in significant harm to my case because "comprehensive" minutes are much more complete than ones that are "comprehensible."

2. Even under the lower "comprehensible" standard, the minutes of the Lawnside Borough Council's March 28, 2011,  May 30, 2012 and June 6, 2012 closed session minutes (on-line here, here and here) were insufficient because they did not include: a) the location of the meeting and b) any decisions made (as opposed to "action taken") at the meeting.  Further, the March 28, 2011 minutes were not comprehensible because it was impossible to tell from them what a discussion regarding "Public Works - Hours of Operation" entailed, and it wasn't even clear if the matter that was privately discussed legally qualified for discussion outside of the public view.

3. Even though the May 30, 2012 and June 6, 2012 closed meetings lasted, respectively, for 1.5 and 1 hours, Judge Holden found that other than the deficiencies noted in #2 above, they were reasonably "comprehensible" and consistent with the law. 

My lawyer, Walter M. Luers, argued that boiling two and a half hours of closed session discussion to the words "discussion ensued" appearing in the minutes was not enough, and that the minutes need to set forth at least a summary of the discussion that actually occurred.  Minutes should, for example, state: "The lawsuit plaintiff tendered a settlement offer of $100,000 and all except for Councilman Doe felt that the Borough's attorney should be authorized to offer plaintiff $85,000 and go as high as $100,000 if negotiations failed."

Mr. Luers also offered that in some situations, the detail in the minutes may need to be redacted before public disclosure in order to keep the adverse party from gaining a strategical advantage.  Luers then argued that even if closed minutes would forever be redacted, it is preferable to have minutes from which details are redacted rather than minutes from which those details are absent.  This is because more verbose minutes would aid future members of the Borough Council who would, of course, be allowed to read the minutes unredacted.

Judge Holden then made what I consider to be an erroneous ruling.  He held that a conversation between an attorney and his public body client was so "sacrosanct" that the possibility that some unauthorized person might wrongfully get a copy of an unredacted version of the closed minutes justifies the Borough Council's refusal to record anything regarding the nature of its attorney-client discussions within those minutes.  According to Judge Holden, attorney client discussions are so sensitive that they should not even be written down.

4. Mr. Luers argued that since our motion caused the Borough to change its minute recording process, I was the prevailing party and the court should exercise its discretion to award me my attorney fees.  Morris G. Smith, Lawnside's attorney, took this opportunity to launch personal attacks against me and to also argue that since I failed to achieve what he alleged was the main point of my motion--to get some details of attorney client conversation captioned in the minutes--that I was not the prevailing party.  Judge Holden agreed with Smith and declined to award me my attorney fees.  Yet, he did find that my motion met with enough success to warrant an order requiring Lawnside to pay my and Mr. Luers' out-of-pocket costs in filing and prosecuting the motion.

Thursday, January 10, 2013

Open Public Meetings Act Showdown tomorrow in Camden

On Friday, January 11, 2013, at 11 a.m. Camden County Superior Court Judge Stephen M. Holden will hear my "Motion to Enforce Litigant's Rights" against the Lawnside Borough Council.  I blogged about the case on November 19, 2012, and that article is available here.  In sum, I am trying to get the court to force Lawnside to obey a court order I obtained in 2008 that requires the Borough, among other things, to keep "reasonably comprehensive" minutes of its executive sessions.  (Note that this standard is apparently stricter than the "reasonably comprehensible" standard required by N.J.S.A. 10:4-14.)

Lawnside's attorney, Morris Smith, has been particularly hostile toward my application, claiming that it is "frivolous and apparently intended to cause the Borough of Lawnside needless expense."  Lawnside has asked the court to make me pay the Borough's attorney's fees and court costs, given the alleged frivolity of my attempt to make the Council obey the 2008 court order.

Readers who are in the Camden area tomorrow may want to stop by and observe this contest.  Judge Holden's courtroom is at 101 S. 5th Avenue, Camden, and I am being represented by Walter M. Luers of Clinton.  The motion paperwork, Smith's opposition  and my reply are available here.

Wednesday, January 9, 2013

Neptune Cop Car Crash Reports On-line

On December 20, 2012, I posted an article that demonstrated how readers could, using publicly available, on-line data, sort and filter that data to identify motor vehicle accidents that met certain, specific criteria.  The criteria used in my article were motor vehicle crashes a) occurring during 2011 in Neptune Township (Monmouth County) and in which b) at least one police vehicle was involved.  In my article, I identified nine motor vehicle crash report numbers that met these criteria.

I recently received redacted versions of the nine crash reports and have placed them on-line here.  Readers may be interested in seeing the details and circumstances surrounding these police car crashes.   

I've made a few observations:
  1. In five of the crashes (Reports 2011-27802, 2011-28768, 2011-15664, 2011-21507 and 2011-18050) it is fairly clear that the police officer was not at fault.  In three of these crashes (Reports 2011-28768, 2011-21507 and 2011-18050), the other driver (i.e. the driver who was not a police officer) was issued at least one motor vehicle summons.
  2. 2011-18052 involved two police cars driven by Ocean Township police officers.  Both Ocean officers, Mark J. Deltin and Matthew R. Guido, were responding to back up Neptune Township officers who were at the scene of a "large fight."  When approaching the scene, Officer Guido "slowed and began to stop" while Officer Deltin, "didn't see [Guido] stopping in front of him," striking him in the rear.  Both officers were transported to the hospital and both police cars were towed away.  Officer Deltin was not issued a motor vehicle summons. 
  3. In three of the crashes (2011-32388, 2011-23592 and 2011-35222), either the officer looked to be at fault or there was a factual dispute between the drivers noted in the report:
  • In 2011-32388, Neptune Township Police Officer Marques J. Alston stuck a civilian's car in the rear.  Alston claimed that the civilian "suddenly changed lanes into his lane and then abruptly stopped" while the civilian reported that he was simply waiting at a red light when Officer Alston struck him in the rear.  Neither driver received a motor vehicle summons.
  • In 2011-22592,  Neptune Township Police Officer Joseph J. Grabas was travelling east on Highway 33 and made a left turn when he was struck by a civilian vehicle travelling in the opposite direction.  Officer Grabas said that he saw the civilian's vehicle "but thought that he had enough time to make the turn."  The civilian said that she was travelling west on Highway 33 when the police vehicle "suddenly turned left in front of her" causing her to strike the police vehicle which "forced her into" another vehicle that was waiting at a stop sign.  None of the three drivers received a motor vehicle summons.
  • In 2011-35222, Asbury Park Police Officer Antonio Martinez was responding to an emergency and, with lights and sirens activated, passed the civilian's car on the left and then made a right turn in front of the civilian's car when impact occurred.  The civilian said that when she saw Officer Martinez's patrol car approaching from the rear, she "pulled to the right side of the road."  She said that Officer Martinez, when executing his right turn in front of her vehicle, struck "her stopped vehicle on the front driver's side."  Officer Martinez, however, claimed that while the civilian initially stopped, she started to pull forward while he was executing his right turn, which caused the collision.  The civilian was issued a summons for failing to yield to an emergency vehicle.

Monday, January 7, 2013

Government Records Council declines to issue advisory opinion

The Government Records Council (GRC) was created in 2002 when the Open Public Records Act (OPRA) was signed into law.  One of the things that OPRA requires the GRC to do is "issue advisory opinions, on its own initiative, as to whether a particular type of record is a government record which is accessible to the public." (N.J.S.A. 47:1A-7(b))

Since its creation, however, the GRC has issued only one advisory opinion and it had nothing to do with "whether a particular type of record is a government record which is accessible to the public."  Rather, the advisory opinion, rendered in 2006 (and numbered Advisory Opinion No. 2006-1), forced requestors to use an agency's particular OPRA form, if the agency had adopted one.  As can be seen by my blog entry here, this requirement caused practical problems for requestors when an agency declined to make its request form available on its Internet site.  Fortunately, the GRC was forced to repeal 2006-1 after it was overruled by the Appellate Division in  Tina Renna v. County of Union, 407 N.J. Super. 230 (App. Div. 2009). 

So, as it stands now, the GRC has not issued a single advisory opinion that is still in force since its establishment over ten years ago. 

I believe that state agencies, like the GRC, ought to honor and fulfill their statutory mandates.  Also, I think that well reasoned advisory opinions by the GRC would really help both requestors and custodians navigate and better understand OPRA.  To that end, on October 9, 2012, I sent the GRC a rather straightforward request for an advisory opinion.  My request sought to clarify the position taken by some school districts that they had to redact students' names and identifying information from civil lawsuits even though undredacted versions of those lawsuits were available from the court clerk.  I've put my request on-line here. I felt, and still feel, that it's silly for one government agency to suppress information that is readily available from another government agency, and thought that the GRC might be able to inject some sense into this matter through an advisory opinion.

But, unfortunately, GRC Acting Executive Director Karyn G. Gordon informed me today that the Council considered my request at its December 18, 2012 meeting and, without further explanation, "declines to issue an advisory opinion on this issue."  Gordon's e-mail is on-line here.  Perhaps the issue I presented wasn't important enough to warrant the GRC's attention.  Or, perhaps the GRC doesn't want to break its ten-year streak of not issuing valid advisory opinions, even though issuance of such opinions is mandated by state law.

Sunday, January 6, 2013

Warren Prosecutor: My "generalized interest" insufficient to identify officers who took county owned generators.

I had recently requested records from the Warren County Prosecutor that would identify the Warren County jail officers who took county-owned generators for their personal use in the aftermath of Superstorm Sandy.  Today, I received a polite brush-off from Assistant Prosecutor Tara J. Kirkendall.  My records request and Kirkendall's response are on-line here.

Kirkendall disclosed that her office's Major Crimes Unit initiated an investigation into this matter on November 19, 2012 and opened up Investigation Case Number IN12-096.  Kirkendall was also good enough to identify thirteen documents within the file that she said could not be released, mainly because they are claimed to be covered by the Open Public Records Act's (OPRA) "criminal investigatory record" exception.  She did, however, disclose two documents--an "Investigative Closeout Review" and Prosecutor Richard T. Burke's December 21, 2012 letter informing Sheriff David Gallant that there was "insufficient evidence to continue [his] investigation at this time."  The accused officer's name, however, was redacted from both records. 

As to my right to documents under the common law right of access, Assistant Prosecutor Kirkendall advised me:

As you are aware, under the common law, the right to examine documents rests upon a showing of some personal or particular interest in the material sought, balanced against the public's interest in the confidentiality of the material. You indicate that you are a "citizen keenly interested in openness and transparency in all parts of New Jersey" and you believe that the individuals involved should be "publicly identified". As no criminal charges were filed and the matter was handled as an internal affairs/personnel matter, the public's interest in the confidentiality of the material is not outweighed by your generalized interest in the documents under the common law.

I am considering litigating this matter.