Sunday, December 29, 2013

Losing a case is sometimes better than not bringing it

Sometimes, you've got to lose a records access case in order to highlight a flaw in the system.   This is the case with Warren County Superior Court Judge Amy O'Connor's recent decision to protect the identities of the public officials who used county-owned generators for personal use during power outages caused by Superstorm Sandy.  Background and case documents on the lawsuit are on my blog here.

It's not as if I actually lost the case--O'Connor ordered disclosure of much of the Warren County Prosecutor's investigative file--but not knowing the names of the officials involved deprives citizens of their ability to effectively oversee their public servants.  As it is, the officials who misused the generators may get promoted in the future and the public will be none the wiser.

On the bright side, the local newspaper, the Express-Times, reported and editorialized on O'Connor's ruling.  PDFs of the article and editorial are here and here and the on-line version of the article is here.  From the comments posted so far, the public is outraged by the decision and the Express-Times editorial staff correctly asked "if those involved have been punished and moved on, what’s the rationale for not disclosing all the details?"

I hope that the public's discontent with O'Connor's ruling spurs a discussion by policymakers that will lead to a fairer balance between a public official's or employee's right to privacy and the public's right to know.  Currently, the balance is tipped way too far in favor of public officials and employees.





Saturday, December 28, 2013

Bergen Judge rules that school board must disclose agenda attachments prior to meeting.

On December 24, 2013, Bergen County Superior Court Assignment Judge Peter E. Doyne ruled that the Midland Park Board of Education, which posts its public meeting agendas on-line prior to each meeting, must also post the attachments and appendices referenced in the agenda to the extent that those attachments are not shielded by some recognized privilege. 

The case is captioned David W. Opderbeck v. Midland Park Board of Education, Docket No. BER-L-8571-13 and Mr. Opderbeck represented himself in the suit.  Judge Doyne's 18-page ruling is on-line here.

Doyne wrote: "The failure of the MPBOE to provide attachments and supplemental documents renders the agendas virtually meaningless. Once the defendant posts the agenda, it is the Board's responsibility to ensure it is meaningful. The defendant cannot provide adequate notice without including the attachments to the agenda. The attachments in this case are not simply supplemental; they are an integral element necessary to understand the agenda."

An example of Board's agenda that Judge Doyne felt was "virtually meaningless" without the attachments and appendices is on-line here.

While Judge Doyne's ruling is not binding on other courts, other judges may consider it persuasive and adopt its reasoning in suits brought in other counties.  Readers are encouraged to bring Judge Doyne's opinion to the attention of their own governing bodies and school boards, encourage them to abide by it and consider litigation if they refuse.





Friday, December 20, 2013

Judge orders disclosure of most information in Warren "Generator-Gate" case.

Update:  

The Appellate Division, on December 8, 2015, affirmed Judge O'Connor's ruling.

Update:

Judge O'Connor significantly revises her "generator" decision

Judge O'Connor called both attorneys in Paff v. Warren County Prosecutor's Office today and held a Case Management Conference via telephone at 4 p.m. today (Monday, December 23, 2013).  The judge's purpose in calling the conference was to modify her previous order so that the identities of the official(s) who misused the county-owned generators would also be redacted from the documents that will provided in the case.  Judge O'Connor's amended order is on-line here.

O'Connor's December 18, 2013 order stated that the Prosecutor's office "shall redact from the documents the names of any person who provided a statement to [the Prosecutor's office], as well as his or her position of employment, birth date, home and cellular telephone numbers, home address, and any personal identifier." 

We believed that the intent of this provision was to protect the confidentiality of any witnesses or whistleblowers who may have turned in the officers who actually misused the generators.  O'Connor clarified today, however, that she is including the perpetrators themselves among those whose identities will be kept from the public.

In a decision rendered December 18, 2013 and released today, December 20, 2013, Warren County Superior Court Judge Amy O'Connor (now elevated to the Appellate Division) ruled that I am entitled to most of the records pertaining to an investigation of a Warren County jail officer's improper use of a county-owned generator to service his own residence during power outages caused by Superstorm Sandy.

O'Connor's two-page Order and eight-page written decision in Paff v. Warren County Prosecutor, Docket No. WRN-L-34-13 are on-line here.  My complaint, certification and brief in this case, filed by the Law Offices of Walter M. Luers, are on-line here.

The Warren County Prosecutor's Office (WCPO), the defendant in the case, had withheld thirteen documents when responding to my Open Public Records Act (OPRA) and common law right of access request.  Judge O'Connor upheld the WCPO's right to withhold the thirteen records under OPRA but ordered it to release each of the thirteen records, in whole or part, under the common law right of access.

"Compared to OPRA, a broader class of documents is available under the common law, although on a qualified basis," O'Connor ruled.  After balancing the public's interest in disclosure against the government's interest in confidentiality and individuals' rights to privacy, the judge ordered disclosure of all thirteen records but allowed for certain redactions to be made to some of them.

The matters that the judge ruled confidential are: a) the names, birth dates, home addresses, telephone numbers and information that describes the employment positions of witnesses and b) two bullet points on a three-page memo from Undersheriff Kenneth J. McCarthy to Sheriff David P. Gallant regarding an internal affairs investigation into the officer, which the judge ruled was "deliberative."


The WCPO must disclose the documents to me with sixty days.  The WCPO may, however, file an appeal and seek to stay disclosure of the records pending appeal.





Wednesday, December 18, 2013

Township questioned on adequacy of special meeting's notice

Update: December 24, 2013

Township Solicitor John G. Carr, in his December 24, 2013 letter (on-line here), acknowledges that the OPMA was violated and plans on ratifying all action taken at the next meeting.
----------------------
December 18, 2013

Hon. William C. Reinhart, Mayor, and members of the
Greenwich Township Committee
P.O. Box 64
Greenwich, NJ 08323
(via e-mail only to garrisonL99@aol.com)

Dear Mayor Reinhart and Committee members:

I write on behalf of the New Jersey Libertarian Party's Open Government Advocacy Project regarding the manner in which the Township Committee advertises its meetings to the public.

I note that the minutes of the September 25, 2013 special meeting (on-line here) state:
Deputy Mayor Port called the meeting to order stating, “Adequate notice of this meeting was provided in compliance with the Open Public Meeting Act by notifying the News of South Jersey on September 13, 2013."
But, N.J.S.A. 10:4-8(d) states:
“Adequate notice” means written advance notice of at least 48 hours, giving the time, date, location and, to the extent known, the agenda of any regular, special or rescheduled meeting, which notice shall accurately state whether formal action may or may not be taken and which shall be (1) prominently posted in at least one public place reserved for such or similar announcements, (2) mailed, telephoned, telegrammed, or hand delivered to at least two newspapers which newspapers shall be designated by the public body to receive such notices because they have the greatest likelihood of informing the public within the area of jurisdiction of the public body of such meetings, one of which shall be the official newspaper . . ." (Emphasis supplied)
And, N.J.S.A. 10:4-10 states:
At the commencement of every meeting of a public body the person presiding shall announce publicly, and shall cause to be entered in the minutes of the meeting, an accurate statement to the effect. . . that adequate notice of the meeting has been provided, specifying the time, place, and manner in which such notice was provided . . ."
The Open Public Meetings Act requires more than just notifying one newspaper in advance of the meeting.  As shown above, it requires notification of two newspapers and posting in at least one public place.  And, the minutes are required to "specif[y] . . . time, place, and manner in which such notice was provided . . ."

From the information I have, I cannot tell whether a) proper notice was not given of this special meeting or b) the minutes do not accurately reflect how proper notice was given.  Yet, it seems apparent that either N.J.S.A. 10:4-8(d) or N.J.S.A. 10:4-10 was violated.

I ask that you please have Mr. Carr and Ms. Garrison look into this matter and advise me of the outcome.

Very truly yours,

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

cc. John Carr, Esq. (via e-mail to jgccresseandcarr@gmail.com)

Wednesday, December 11, 2013

Cape May Prosecutor questioned on Wildwood Crest's compliance with the Open Public Meetings Act

December 11, 2013

Robert L. Taylor, Prosecutor
Cape May County Prosecutor’s Office
Via e-mail only to prosecutor@cmcpros.net

RE: Question on Wildwood Crest's compliance with the Open Public Meetings Act

Dear Prosecutor Taylor:

I write on behalf of the New Jersey Libertarian Party's Open Government Advocacy Project seeking a finding by your office that the Wildwood Crest Board of Commissioners' notice of two of its recent special meetings did not comply with the "adequate notice" provisions of N.J.S.A. 10:4-8(d).  I write to you because you have previously sent admonishments to public bodies that have violated the Meetings Act.  (See, e.g. "Cape May County prosecutor says Lower Township is using emails to violate Sunshine Law," June 21, 2011 by Richard Degener of the Press of Atlantic City.)

N.J.S.A. 10:4-8(d) requires public bodies, among other things, to give notice of their public meetings by having the meeting notices:
"mailed, telephoned, telegrammed, or hand delivered to at least two newspapers which newspapers shall be designated by the public body to receive such notices because they have the greatest likelihood of informing the public within the area of jurisdiction of the public body of such meetings, one of which shall be the official newspaper . . ."  N.J.S.A. 10:4-8
At a link here I have placed Wildwood Crest's November 7, 2013 Notice of two special meetings to be held on Tuesday, November 12, 2013 at 1 p.m. and Wednesday, November 13, at 1 p.m.   According to the appended Certificate of Mailing, the Notice was both mailed and faxed to three newspapers.  One of those papers, the Press of Atlantic City, publishes daily and the other two, the Gazette Leader and Cape May County Herald, publish weekly.  The appended "Fax Call Report" indicates that each of the newspapers received its fax of the notice shortly after 5 p.m. on Thursday, November 7, 2013.

While actual publication of the notice by the newspapers is not required, public bodies must take the newspapers' publication schedule into account when sending notices of public meetings.
"When a public body sends meeting notices to newspapers for publication and, to the actual or readily ascertainable knowledge of that body, those newspapers cannot publish the notice at least 48 hours in advance of the meeting, there is no compliance with the Open Public Meetings Act."  Worts v. Upper Township, 176 N.J.Super. 78 (Ch.1980).
Although Worts is not binding precedent, the case has been cited by the Appellate Division with apparent approval. See Township of Bernards v. State, Dept. Of Community Affairs, 233 N.J.Super. 1, 26, (App.Div.1989), certif. denied, 118 N.J. 194 (1989), and certif. denied, 118 N.J. 195 (1989).  See also, Lakewood Citizens for Integrity in Government, Inc. v. Lakewood Tp. Committee, 306 N.J.Super. 500 (Law 1997).

If we follow the rule pronounced in Worts, in order for Wildwood Crest's notice of its November 12, 2013 and November 13, 2013 meeting to have been effective, it must have been received by at least two qualifying newspapers such that each newspaper could have published notice of each meeting at least 48 hours prior to each meeting taking place. 

The Herald publishes each Wednesday and the deadline for submitting legal advertisements is at noon on the prior Thursday. (See the Herald's publication policy on-line here).  As noted above, Wildwood Crest's notice was faxed several hours after the Herald's Thursday noon publication deadline, so the the earliest that the Herald could have published the notice consistent with its publication schedule would have been on Wednesday, November 20th, which was well after the November 12th and November 13th meetings.  Even if Wildwood Crest's fax had been received by the Herald prior to noon on November 7th, the notice would not have been published until November 13th, which would not have given Crest citizens 48 hours advance notice of either meeting.

Catamaran Media, which publishes several weekly newspapers including the Leader which publishes each Thursday, has its publication deadline policy on-line here.  In order for an announcement to be published in "Zone A" which includes the Leader, it has to be received by the newspaper by no later than 2 p.m. the prior Tuesday.  Thus, Wildwood Crest's notice, having been faxed on Thursday, November 7th, could not have been published by the Leader until Thursday, November 14th, which is after both of the meetings sought to be noticed.  Indeed, the Leader, in a November 14, 2013 article (on-line here), noted that the Crest's delivery of the meeting notice was "past the Leader's deadline for print." 

The only newspaper notified by Wildwood Crest which was capable of publishing a timely notice of the November 12th and November 13th special meetings was the Press of Atlantic City, which publishes daily.  But, the Press is only one newspaper and N.J.S.A. 10:4-8 expressly requires that timely notice be given to "at least two newspapers."  Accordingly, Wildwood Crest's notice of the November 12th and November 13th special meetings was deficient.

Would you please look into this matter and let me know your thoughts?

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

cc. Wildwood Crest Mayor and Board of Commissioners
     via e-mail only to jholzmer@wildwoodcrest.org












Official moves out of state and avoids an ethics infraction

On December 2, 2013, the Local Finance Board (LFB) dismissed an ethics complaint against a former member of the Winslow Township (Camden County) Board of Health because the official moved to Georgia and did not respond to the LFB's letter sent to what the Post Office reports as his forwarding address.

In its dismissal letter to Daniel Wilkinson (Complaint No. LFB-11-053), on-line here, the LFB found that Wilkinson, who had resigned from the Board of Health on January 12, 2012, "failed to file a 2011 Annual Financial Disclosure Statement . . . in accordance with the requirements of the Local Government Ethics Law."  While the LFB found that Wilkinson's resignation "did not in and of itself absolve [Wilkinson] of the duty to file the financial disclosure statement for 2011," it ultimately closed the complaint because he "no longer resides in the State and attempts to contact [him] in both New Jersey and Georgia were unsuccessful."  It is not clear from the LFB's determination letter whether the Georgia address that the Post Office listed as Wilkinson's forwarding address was invalid or whether Wilkinson received the LFB's correspondence at his Georgia address but simply neglected to respond. 

Apparently, local government officials who violate the ethics law may be able to escape liability by moving and not responding the LFB's letters sent to the forwarding address furnished by the Post Office.

More changes suggested for Deerfield Township

December 11, 2013

Hon. Frank R. Spatola, Jr., Mayor and members of the
Deerfield Township Committee
736 Landis Avenue
Rosenhayn, New Jersey
(via e-mail only to kseifrit@comcast.net)

Dear Mayor Spatola and Committee members:

After posting a blog entry yesterday regarding my recommended changes to § 5-10 of the Township Code, I received input from blog readers pointing out other areas within that Code section where Deerfield Township could improve.  I have revised my suggestions to incorporate those ideas and have posted the revision on-line here.

A very important item (and one that I missed) is that § 5-10E of the Code, as presently written, does not comport with a statutory (N.J.S.A. 10:4-12) requirement that each Township Committee meeting contain a portion "for public comment on any governmental or school district issue that a member of the public feels may be of concern to the residents of the municipality . . ."  In my revised draft, I have included two periods for public comment, one at the beginning of the meeting which is restricted to comments and questions on agenda items, and one at the end of the meeting for comments and questions on any issue.

Additionally, my draft revision specifically requires the Mayor to attempt to answer questions offered by citizens at either public session.  Unfortunately, many municipalities around the state have adopted an informal policy of refusing to respond to citizens' questions.  I hope that the Committee agrees that citizens who take the time to come to a meeting to ask questions deserve the courtesy of genuine answers to their questions.

Another blog reader noted that advance copies of meeting agendas would be much more useful to the public if draft copies of the resolutions, ordinances and reports listed in the agendas were also available on line.  I included those suggestions in § 5-10B in my draft revision.

Thank you for your attention to this matter.

Very truly yours,

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

Tuesday, December 10, 2013

Seeking better compliance with the Open Public Meetings Act, one municipality at a time

When I visited southern New Jersey last week, I attended a Deerfield Township (Cumberland County) Committee meeting and made some suggestions as to how the Committee could better comply with the spirit and intent of the Open Public Meetings Act.  Today, I wrote to Mayor Spatola and the Committee members to thank them for their attention and to suggest changes to the Township's code that will help them implement my suggestion.  My letter follows.  Readers may wish to send similar letters to their own local government bodies and school boards.
  -------------------------------
December 10, 2013

Hon. Frank R. Spatola, Jr., Mayor and members of the
Deerfield Township Committee
736 Landis Avenue
Rosenhayn, New Jersey
(via e-mail only to kseifrit@comcast.net)

Dear Mayor Spatola and Committee members:

It was my pleasure to address the Committee during the public portion of its December 4, 2013 public meeting.  I hope that my comments and suggestions on how Deerfield Township could go above and beyond in its Open Public Meetings Act compliance were taken to heart.

In order to aid you in implementing my suggestions, I have made available here a PDF version of my recommended changes to § 5-10 of the Township Code which regulates conduct of Committee meetings.  As you can see, my suggested language strengthens the Committee's commitment to the principles embodied within the Meetings Act and, if adopted, would make Deerfield a model for other local government agencies to emulate.

I ask that you please review this matter at your December 18, 2013 meeting.  And, I would appreciate it if you would let me know how the Committee decides to act on this matter.

Thank you for your attention to this matter.

Very truly yours,

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

Monday, December 2, 2013

Court: Some Police Internal Affairs records may be disclosable

On-line here is a November 26, 2013 West Virginia Supreme Court opinion that discusses police internal affairs records and holds that sometimes, the public right to access them is greater than the police officer's or government's interest in confidentiality.  A newspaper article regarding the decision is on-line here.

Perhaps it's time to challenge New Jersey's policy of never disclosing IA matters, even in closed cases, to the public.