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Unpublished trial court OPRA opinion

"Unpublished opinions" are not published in the law books and are not ordinarily written about in legal periodicals.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.