Wednesday, February 6, 2013

LFB dismisses ethics complaint against badge-flashing Voorhees Deputy Mayor.

On January 22, 2013, Thomas H. Neff, chairman of the New Jersey Local Finance Board (LFB) notified me that my ethics complaint against Voorhees Township (Camden County) Deputy Mayor Mario DiNatale was dismissed by a 3 to 1 vote.  (The LFB has six members, but only four--Neff, Ted Light, James P. Fox and Francis Blee were present at the January 9, 2013 meeting where the vote was taken.  Idida Rodriquez and Alan W. Avery were absent.  Neff cast the "no" vote. ) 

I had complained to the LFB on January 17, 2012 after reading a January 11, 2012 Courier Post article entitled "Abuse of badges may cost them badges" by Jeremy Rosen.  The article reported that Berlin Township (Camden County) police officer Wayne Bonfiglio had stopped Deputy Mayor DiNatale on January 5, 2012 for having a rejected red inspection sticker and improperly tinted windows on his vehicle.

According to a January 5, 2012 e-mail that Bonfiglio had sent to Voorhees Police Chief Keith Hummel, when he approached DiNatale's car, DiNatale held a police badge out the driver's side window.  Bonfiglio, who "could not believe that a police officer would openly display his badge on a car stop in front of so many witnesses" asked DiNatale if he was a police officer.  According to Bonfiglio, DiNatale "simply replied, 'Voorhees Township Police.'"

Bonfiglio, who knew all the Voorhees police but didn't recognized DiNatale, challenged DiNatale's claim that he was a police officer.  At that point, DiNatale explained that he was the Voorhees Deputy Mayor and had received a a police badge because served in a "liaison role" as the Township Committee's public safety director.

According to Bonfiglio, he didn't issue DiNatale any summonses "out of respect for [Chief Hummel].  Rather, he told DiNatale to remove the tint from his windows and get his vehicle inspected. He also opted to send his e-mail to Voorhees Police Chief Hummel.

After reading the article, I concluded that DiNatale's actions constituted a violation of N.J.S.A. 40A:9-22.5(c), which states: "No local government officer or employee shall use or attempt to use his official position to secure unwarranted privileges or advantages for himself or others."  I felt, and still feel, that flashing a police badge to get yourself out of a ticket falls squarely into the category of using one's official position to secure an unwarranted privilege or advantage.

Yet, the LFB decided to give DiNatale a pass because he had sent an e-mail to Berlin Township Police Chief Joseph Jackson on January 16, 2012 (after the article was published in the Courier Post) "requesting that the appropriate tickets be issued to [him]."  DiNatale's magnanimous gesture (i.e. deigning to accept a traffic summons, just like us common folk), in the LFB's eyes, warranted mercy.

After receiving the LFB's dismissal letter, I submitted an Open Public Records Act (OPRA) request to Berlin Township for the e-mails back and forth between DiNatale and Berlin Police Chief Jackson, as well as copies of the traffic tickets that were ultimately issued to DiNatale.  In response, I was given a copy of DiNatale's e-mail to Jackson and was told that no summonses against DiNatale were on file.  I conclude from this that while DiNatale may have asked to be ticketed, he didn't actually receive any tickets.

So, the way I understand the LFB's view of the ethics law, if a public official is caught trying to use his or her official position to beat a traffic ticket, he or she will be excused from an ethics violation provided that he or she, after being caught, contritely asks for the ticket to be issued.  It matters not, however, whether any tickets are actually issued against the public official.  Rather, it's the thought that counts.

My ethics complaint, Neff's dismissal letter, the Courier Post article, my OPRA request to Berlin and Berlin's response are all on-line here.

Saturday, February 2, 2013

A win, a loss and an adjournment in Belvidere yesterday

On Friday, February 1, 2013, Warren County Superior Court Judge Amy O'Connor ruled on two Open Public Records Act (OPRA) cases. A third hearing originally scheduled for the same day was postponed. The plaintiff in all three cases was represented by Walter M. Luers of Clinton. 

Carroll v. Warren County Community College Foundation
Docket no. WRN-L-385-12

At issue: Whether the Warren County Community College Foundation (WCCCF) is a government agency subject to OPRA.  The WCCCF is a non-profit agency that is closely associated with the Warren County Community College (WCCC) and secures grants and donations to fund scholarships for WCCC students.  (More information on the suit is set forth in the Express-Times' October 24, 2012 news article.)

Result: Judge O'Connor ruled that the WCCCF is a "public agency" as defined by OPRA.  The chief reason for her ruling was that WCCC, under the WCCCF's bylaws, retains the power to approve or reject nominees to the WCCCF's board of trustees.  This fact, along with others, caused Judge O'Connor to rule that "the Foundation, in essence, is an instrumentality of the College."

Among the records the plaintiff requested were the minutes of the Foundation's Board of Trustee meetings.  The WCCCF's attorney, Suzanne M. Marasco, said that although she had not seen the requested minutes, she felt that it might be unfair for them to be publicly released because the WCCCF Board, when those meetings were held, was operating under the assumption that the minutes would never be made public.  Luers countered that the minutes should be treated like a public body's executive session minutes, i.e. they were presumed to be publicly disclosable, but that certain portions may need to be redacted to protect legitimate confidentiality and privacy concerns.  O'Connor directed both attorneys to submit briefs on whether or not the minutes should be disclosed.

Carroll v. Phillipsburg Town
Docket no. WRN-L-397-12

At issue: Plaintiff requested a machine readable computer file of the town's 2011 payroll report.  The town offered to provide plaintiff, at no cost, with its report in PDF format, which, unlike a report provided in Excel, CSV or a delimited text file, is not easily searchable, sortable or capable of being filtered.  According to the town, its third-party payroll administrator, ADP, assesses the town a $150 fee to produce the report in the requested machine readable format--which would need to be paid by the plaintiff in order to get the report in that format.

Result:  Judge O'Connor ruled that PDF is a "meaningful medium" in accordance with N.J.S.A. 47:1A-5(d) and satisfied plaintiff's request, even though plaintiff would have to retype the data contained in the report in order to create her own machine readable and manipulable file.  Given this holding, the issue of whether the $150 fee was excessive was not reached.

Carroll v. Pohatcong Township
Docket no. WRN-L-413-12

At issue: In a sworn statement, Francesco Pagano, a former Township police officer testified that a police lieutenant "sexually assault[ed] two officers at work."  Is the report and other records related to this alleged assault subject to disclosure under OPRA or the common law?  Also, is the written agreement that Pagano and Pohatcong entered into at the time of his separation from employment disclosable as a public record?

Result: Hearing postponed until February 15, 2013.