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Today, August 27, 2013, the Appellate Division of the New Jersey Superior Court, in an unpublished decision, affirmed a trial court's ruling that the Atlantic City Alliance, Inc. (ACA) was not a "public agency" that is subject to the Open Public Records Act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."