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.