Wednesday, December 24, 2014

Since 2010, Sea Girt school board paid over $750K to settle six special education claims.



The Sea Girt Board of Education has released redacted versions of six settlements of administrative cases brought under the federal Individuals with Disabilities Education Act (IDEA).    Most of these cases, which are listed below, contain confidentiality agreements.

Interestingly, as a condition for settlement, the parents of E.S. were required to "withdraw the OPRA request submitted to the District on or about September 4, 2014."


J.S. o/b/o E.S. Case No. EDS-01184-13
Settled for $201,000 on September 29, 2014.

J.T. and L.T. o/b/o G.T., Case No. EDS-09393-13
Settled for $385,780.50 on September 16, 2013

D.B. o/b/o M.B., Case No. EDS-00727-13
Settled for $25,000 on May 23, 2013

M.K. o/b/o J.D., Case No. EDS-04083-13
Settled for $54,000 on April 23, 2013

D.B. o/b/o W.B., Case No. EDS-08437-12
Settled for $74,751.61 on October 21, 2012

D.B. o/b/o M.B.    EDS 10218-10
Settled for $10,000 on October 5, 2010

Tuesday, December 23, 2014

Different disclosure rules when law enforcement officers are charged with an offense?

On December 19, 2014, I blogged (here) about a Mercer County Corrections officer who was charged with harassment for "offensively touching" a coworker.  After noting that Mercer County redacted the officer's address and date of birth from the summons, I submitted another Open Public Records Act (OPRA) request seeking that information.

In my subsequent OPRA request which, along with the County's denial is on-line here, I pointed out that police routinely disclose the home addresses of arrestees.  As evidence, I included a press release issued by the Bridgeton Police Department (here) showing the home addresses of two arrestees.  Even though the corrections officer was issued a summons instead of being arrested, it seems to me that the decision to disclose or suppress the home address of a criminal defendant should not turn on the defendant's occupation.

As for the date of birth, while I have no need for the month and the day the officer was born, knowing the year of his birth would provide readers with the defendant's age.  While allegedly saying "while you're down there . . ." to a stooping, female co-worker and then kissing her on the neck is always wrong, people might feel that it is a little less creepy if done by a 25-year-old as opposed by a 55-year-old.  Also, I have received court records in the past where the defendants' dates of birth are disclosed, so why should this case be different?

In his December 22, 2014 response Deputy County Counsel Paul R. Adezio denied my request.  He noted that the officer's address needs to be redacted "for safety considerations" because "[t]he individual in question is a County corrections officer, and involved in law enforcement."  He also denied the date of birth because it is "personnel related."  Adezio did not address my request that he "please at least consider more narrowly redacting the address and date of birth."

Fort Lee Police disclose some Internal Affairs records

Although it did not release the officers' names, the Borough of Fort Lee (Bergen County) disclosed  a list of its police internal affairs cases from 2011 through 2013.  It also disclosed documents showing that officers were suspended 25 days and 80 days in 2011 for "failing to properly manage, document and safeguard an incident with juveniles in custody" and for 20 days in 2012 for "failing to properly document, process, and handle evidence in an arrest."

The documents provided by Fort Lee are on-line here.

Bergen County appeals court's decision that disclosed jail internal affairs records.

Bergen County has filed a Notice of Appeal (on-line here) of Judge Peter E. Doyne's November 6, 2014 Order (on-line here) that granted me access to certain jail internal affairs records and awarded my attorney, Donald M. Doherty, Jr., approximately $6,450 in attorneys fees and costs.

Monday, December 22, 2014

Bad lawyering in Gloucester County OPRA case. Who cares. It's only taxpayers' money.

Update November 27, 2016.   The Government Records Council ordered the fire district to pay $2,370 to requestor's attorney.
----------------------------------------------------
On December 18, 2014, the Harrison Township (Gloucester County) Fire District filed its opposition to my Government Records Council (GRC) complaint.  I've placed both the complaint and the the opposition, filed by the fire district's lawyer, Eric J. Riso, of the Stratford firm of Platt & Riso, P.C. on-line here.  The district's response make me wonder how lawyers get away with (and get paid for doing) such shoddy work.

The case is pretty simple.  I had requested the minutes from two 2013 executive sessions of the Board of Fire Commissioners.  I was denied access by Fire Official Brian A. Bartholomew because he believed that since the executive sessions themselves were held in private, it logically followed that the minutes of those executive sessions must be confidential as well.  This is a common mistake.  The law, however, provides that executive session minutes may only be entirely suppressed in the most unusual case and that in general, redacting certain sentences from the the executive minutes, rather than entirely suppressing them, will suffice to protect the government's interest in confidentiality while still providing the public with the maximum amount of information that can be disclosed.  Unfortunately, advising the fire district of the leading case on this point--Payton v. New Jersey Turnpike Authority, 148 N.J. 524, 557 (1997)--did not change Mr. Bartholomew's mind.  According, with the help of Gibbsboro attorney Anthony H. Ogozalek, Jr., I filed a denial of access complaint with the GRC.

Riso's letter brief, which starts at page 40 of the PDF at the link above, contains three sections of argument and each section gets pretty much everything wrong.

In the first section, Riso incorrectly cites Mason v. Hoboken, 196 N.J. 51 (2008) as disallowing my action because it was filed more than 45 days after my request was denied.  While Mason does establish a 45-day limitations period for filing court complaints, page 63 of the that decision recognizes that as an alternative to going to court, records requestors "may proceed before the GRC, which defendants explain has its own procedures and purposes-and no statute of limitations."

In the second section, Riso completely mischaracterizes the court's decision in O'Shea v. West Milford Bd. of Educ., 391 N.J. Super. 534 (App. Div. 2007) by claiming that it supports suppressing executive session minutes.  The records at issue in O'Shea, however, were not executive session minutes, but the handwritten notes taken by board of education's secretary during an executive session of the board.  In other words, O'Shea pertains to the handwritten notes that are used to prepare the minutes, not to the minutes themselves.  Thus, it has no bearing on this case.

In the third section, Riso makes the buffoonish argument that since I "make no legal argument based on the common law . . . it is the Fire District's position that [Paff] has waived his right to pursue such a claim before the GRC."  He then goes on to argue how I'm not entitled to the minutes under the common law.  Of course, I did not argue the common law to the GRC because the GRC does not have jurisdiction over the common law.  Had Riso bothered to read the GRC's frequently asked questions (FAQ) page he would have learned:
Note that any challenge to a denial of a request for records under the common law cannot be made to the Government Records Council, as the Government Records Council only has jurisdiction to adjudicate challenges to denials of OPRA requests. A challenge to the denial of access under the common law can be made by filing an action in Superior Court.  (Emphasis in original).
In almost any other field of endeavor, incompetence is not tolerated.  For some reason, however, incompetence by legal practitioners is met with greater acceptance--especially when a government agency, instead of a private client, is footing the bill with taxpayer dollars.

Sunday, December 21, 2014

Hainesport releases list of officials getting health insurance.


Back in March, I filed a lawsuit against Hainesport Township (Burlington County) seeking a list of all public officials, employees and retirees who have been enrolled in the Township's health insurance plan during 2011 to 2014.  For background on that suit, which I won, please see my blog here.

Haineport originally said that it would appeal the lower court's decision that forced it to make the information public.  Recently, however, Hainesport withdrew its appeal plans.  On December 19, 2014, Township Clerk Leo F. Selb, Jr. released an Excel spreadsheet which I've placed on-line here. (Note that there are tabs at the bottom of the file that show the enrollees during each year.)

It appears that all five of the Township Committee members have coverage for them and their spouses or families subsidized by Hainesport taxpayers.  For example, Committeeman Bruce MacLachlin has coverage valued at $26,909.40 per year.  Of that amount, MacLachlin contributes $807.28 while the taxpayers pick up the remainder.

Wednesday, December 17, 2014

Records Custodian fined for 2nd time



In what is believed to be an unprecedented decision, the Government Records Council (GRC), on December 16, 2014, found that a Franklin Township (Somerset County) Fire Commissioner Board's records custodian had, for the second time, "knowingly and willfully [and] unreasonably" denied a records requestor access to a government record.  The GRC imposed a $2,500 fine on the custodian and ordered the Board of Fire Commissioners to pay the requestor nearly $15,000 in costs and attorney fees.

Fined was Commissioner William Kleiber who serves as the records custodian for the Franklin Township Fire District No. 2 Board of Fire Commissioners.  The requestor was former Franklin Police officer Jeffrey Carter who is currently an assistant professor at Centenary College and who previously was a Commissioner in Franklin Fire District No. 1.

In her written decision on the case, Administrative Law Judge Linda M. Kassekert  held that Kleiber's and Board Attorney Eric Perkins' denial of Carter's request for "warrants" was "was more than 'negligent, heedless or unintentional'" but "was intentional and deliberate."  Kassekert also ruled:
It is apparent that Mr. Kleiber was not the right person to serve as the Records Custodian for Franklin Township Fire District No. 2. He was an elected fire commissioner, a part-time position. He admitted that he never read the OPRA statute. In this matter, he did not read the complaint and filings. He admitted that he delegated up to 95 percent of the OPRA requests received by the district to Ms. [Sandy] Accardi and the remaining 5 percent were given to the district’s counsel to handle. 
The GRC's and Judge Kassekert's decision is on-line here.

The GRC noted that since it was Kleiber's second offense (the first fine of $1,000 was levied in August 2013 in the case of GRC 2011-124, in which Carter was also the complainant), he must be fined $2,500 since that is the amount the Legislature prescribed for second offenders.  The GRC specifically ordered that Kleiber "must remit payment from his own personal funds."

The first matter resolved when Kleiber agreed that he had knowingly and willfully violated Carter's OPRA rights and signed a settlement agreement to that effect.


Sea Girt Board of Education closed meeting minutes, attorney bills on line.


As a public service, I've placed the following records of the Sea Girt (Monmouth County) Board of Education on line:

Here: Redacted minutes of the Board of Education closed sessions from March 2014 forward.
Here: Legal Services invoices from Lindabury,McCormick, Estabrook & Cooper.
Here: Legal Services invoices from Methfessel & Werbel, Esqs.

Wednesday, December 10, 2014

OPRA plaintiff resorts to writ of execution to get town to pay legal fees.


Typically, public agencies readily pay attorney fees when a court orders them to.  However, in the case of the Town of Harrison (Hudson County), an Open Public Records Act (OPRA) plaintiff applied in 2013 for a writ of execution to compel the Town to pay $55,702.88 in legal fees.

Harrison appealed the trial court's original July 31, 2010 award of $28,951.36 and the Appellate Division, in an August 15, 2012 ruling, see my blog here, affirmed the fee award.  The remainder of the $55,702.88 was for additional fees that accrued, apparently earned by the OPRA plaintiff's attorney attempting to collect the fees that Harrison failed to pay.

According to court documents, on-line here, on July 31, 2010, Superior Court Judge Bernadette DeCastro ordered the Town to pay the $28,951.36 "within 45 days." Judge DeCastro similarly ordered to the Town to pay $14,687 and $9,859 on January 4, 2011 and March 14, 2011 respectively.  Despite DeCastro's orders, Harrison apparently did not pay the fees, thus causing the OPRA plaintiff's lawyer to apply for the writ of execution on March 14, 2013.

I do not know if Harrison has since paid the debt.  I have submitted another OPRA request to find out and will post the results here.

Friday, November 28, 2014

Local Bergen PD honors Judge Doyne's decision--Releases Internal Affairs charges.



After Bergen County Superior Court Assignment Judge Peter E. Doyne's October 16, 2014 ruling (on-line here) that police internal affairs records are not exempt from disclosure, I submitted an Open Public Records Act (OPRA) request to the Borough of Edgewater seeking police disciplinary records.  While I was expecting recalcitrance, I found Edgewater's response, on-line here, to be compliant with Judge Doyne's ruling.

I have never before seen a disclosure that identifies police officers who were internally charged, a summary of the charges and an indication as to whether or not the charges were sustained.  For example, the documents show that in 2014, Officer William Wallach was suspended for 10 days "for not complying with orders and removing documents from headquarters without permission."  Another example is a May 20, 2014 charge that Officer Konstantina T. Savrides "had poor demeanor and refused to take a motor vehicle accident report" which was determined to be "not sustained."


Monday, November 24, 2014

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 Demitroff v. Buena Vista Township et al
Atlantic County, Docket No. ATL-5662-14
Hon. Nelson C. Johnson, J.S.C.
November 18, 2014
Click here for the court's decision.

Summary:  Video taken by camera mounted in rear of room where municipal court and governing body meets is subject to disclosure, despite municipality's claim that video from camera would reveal "blind spots" and thus allow a person seeking to harm government official to adjust his or her movements to avoid being within recording scope of camera.

Saturday, November 22, 2014

OPRA lawsuit seeks info on investigation of Margate firefighter.

Update: Judge Johnson's December 17, 2014 order, which gives the Prosecutor's Office until March 9, 2015 to wrap up its investigation, is on-line here.
On Monday, December 15, 2014, at 10 a.m., Atlantic County Superior Court Judge Nelson C. Johnson will hear my case against the Atlantic County Prosecutor's Office seeking access to records related to a Margate firefighter's alleged misappropriation of approximately $50,000 from the local chapter of the Firefighters Mutual Benevolent Association (FMBA).

Documents from my case, Paff v. Atlantic County Prosecutor's Office et al, Docket No. ATL-L-5747-14, filed by West Berlin attorney Donald M. Doherty, are on-line here.

After receiving an anonymous tip, I originally requested information on the alleged theft from the City of Margate.  In response, Margate's lawyer confirmed "that there is currently an investigation being conducted by the Atlantic County Prosecutor’s office re a Margate Firefighter" and that "no charges have been filed to date."

In response to my follow up request to the Atlantic County Prosecutor's Office, Assistant Prosecutor Kathleen E. Bond stated that she could not "confirm or deny the existence of such an investigation" and that if an investigation did exist, "any additional information responsive to your request . . . would remain confidential."

Burlington County Mayor fined $100 for ethics violation

On November 17, 2014, New Jersey Local Finance Board Chairman Thomas H. Neff issued a Notice of Violation and assessed a $100 fine against the mayor of a small Burlington County borough. According to the Notice of Violation, the borough had made purchases from the mayor's parents' business of which he was an employee.

The fine was levied against Wrightstown Mayor Thomas E. Harper and arose out of a November 11, 2011 ethics complaint filed by John Paff and the New Jersey Libertarian Party.  The ethics complaint and Notice of Violation are on-line here and here, respectively.  Paff and the Libertarian Party had complained that Harper had an interest in a local automotive service station named Tom's Service Center during 2010 when Wrightstown Borough paid the business $11,799.45 for fuel and repair services.

In the cover letter that accompanied the Notice of Violation, available at the link above, Neff put additional questions to Mayor Harper regarding discrepancies in his Financial Disclosure Statement (FDS) forms submitted from 2010 through 2014.  In his letter, Neff instructed Harper to "explain the discrepancies" and "have each FDS referenced herein corrected and resubmitted to the Board for review."

Paff and the Libertarian Party had previously filed three other ethics charges (here, here and here) against Mayor Harper and his wife, all of which were dismissed.

Friday, November 21, 2014

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.

John P. Schmidt v. Swedesboro-Woolwich Board of Education, et al.
Gloucester County, Docket No. GLO-L-862-14
Hon. Georgia M. Curio, A.J.S.C.
Undated (Approximately mid-November 2014)
Click here for the court's decision.

Summary: After in camera review, court denied requestor's challenge to redactions school board applied to its executive session minutes, citing the deliberative process privilege.

Tuesday, November 18, 2014

Retired Wildwood Crest police officers to testify on why letters related to their misconduct should remain secret.

In a November 18, 2014 opinion, Superior Court Judge Nelson C. Johnson ordered retired Wildwood Crest Lieutenant Michael Hawthorne and Captain David Mayer to appear before him on December 12, 2014, 10:30 a.m. to explain why letters why letters discussing their "serious deceitful and/or untruthful" conduct should continue to be withheld from the public.  Johnson's decision is on-line here and background information on this lawsuit is on-line here.




Wednesday, November 12, 2014

OPRA lawsuit filed against Franklin Township Fire District

On November 12, 2014, Clinton attorney Walter M. Luers filed an Open Public Records Act (OPRA) lawsuit on my behalf seeking a settlement agreement that resolved a 2011 defamation lawsuit filed by a former Franklin Township (Somerset County) fire commissioner against two volunteer fire departments and several individually named fire officials.

The 2011 suit was filed by former Franklin Township Fire Commissioner Michael Gilliam against Fire District No. 3, Commissioner Douglas Krushinski, East Franklin Volunteer Fire Department Chief Daniel Krushinski and President Christopher Fischer and Community Volunteer Fire Department Chief Richard Ries and Board Chairman Herman Calvo.  Details and background documents from the suit, in which Gilliam alleged that the defendants falsely claimed that he engaged in illegal or immoral liaisons with minors, are on-line here.

After Gilliam's lawsuit was dismissed against the District and the two fire companies, Gilliam settled with the individual defendants.  I filed an OPRA request for the settlement agreement between Gilliam and the individual defendants and was denied.  The Fire District claimed that it was forced to deny access to the settlement agreement because the District's insurer, Volunteer Firemen's Insurance Services (VFIS), refused to release it to the District.  Accordingly, VFIS has been named as a party to my OPRA lawsuit.

The civil complaint, certification, order to show cause and brief filed in my OPRA lawsuit are on-line here.  The docket number is SOM-L-1474-14.

Governor Christie's flight documents disclosed pursuant to court order.

On January 13, 2014, Clinton attorney Walter M. Luers filed an Open Public Records Act (OPRA) lawsuit on my behalf challenging the suppressions and redactions the Governor's Office applied to travel documents related to the Governor's April 2013 trip to Dallas, Texas for the dedication of the George W. Bush Presidential Library and Museum.  Background on that suit is on-line here.

On October 23, 2014, Mercer County Assignment Judge Mary C. Jacobson ordered that the flight information, including airline, airports, seat numbers, etc., be disclosed.  Judge Jacobson also ruled that information regarding the hotels at which the Governor, his wife and staff stayed could remain suppressed.

The documents, as originally provided in response to my OPRA request are on-line here while the same documents which were re-released after Judge Jacobson's ruling are on-line here.

Wednesday, November 5, 2014

Availability of records maintained by an agency's insurers, lawyers or other third parties.

Today, I had a records custodian claim that she was not obligated to search beyond the walls of her office for records responsive to my Open Public Records Act request.

Since it is fairly common for custodians to take this position, I have publicly posted my response to her.  I hope that this might be helpful for other requestors who encounter similar situations.
----------------------------------------------------------------------------
Dear Records Custodian:

As you know, I submitted an Open Public Records Act request for a settlement agreement that resolved a civil lawsuit against the municipality.  You had initially responded that "no settlement [is] available for this case."

I then requested clarification, explaining that "[i]t is not clear from your response whether a settlement agreement exists, but you don't have it available in your office or whether no such settlement agreement exists."  Today, in an e-mail, you responded that "please note that our records do not contain a settlement agreement.  I am only able to provide you with records in my custody, and have provided the record(s) in your original request that were within my custody."

Please be advised that your duty to disclose records is not limited to disclosing those that are in your office.  You are also required to disclose responsive records that are maintained on the municipality's behalf by third parties such as outside legal counsel.  

When presented with the question of a government agency's duty to disclose settlement agreements held by outside counsel, the Appellate Division held that the agency's custodian's duty was to retrieve those records for the requestor.

Were we to conclude otherwise, a governmental agency seeking to protect its records from scrutiny could simply delegate their creation to third parties or relinquish possession to such parties, thereby thwarting the policy of transparency that underlies OPRA.  
Burnett v. Gloucester County, 415 N.J.Super. 506, 517 (App. Div. 2010).
Accordingly, the question of whether you are required to retrieve records responsive to an OPRA request turns on the nature of the records, not their physical location.

Very truly yours,

Tuesday, November 4, 2014

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.

Yaakov Wenger v. Lakewood Fire District No. 1, et al.
Ocean County, Docket No. OCE-L-2466-13
Hon. Vincent J. Grasso, A.J.S.C.
October 30, 2014
Click here for the court's decision.

Summary: 1) Agency officials' certification that they have every document "to the best of their knowledge" has been disclosed to the requestor is not a proper OPRA denial.  2)  Fire District ordered to officially appoint a records custodian and reconsider requestor's request anew and provide a proper response as required by OPRA.

Friday, October 31, 2014

Prosecutor releases some information, denies the rest, regarding 2013 Perth Amboy Police shooting of special needs man.

On December 4, 2013, at about 1:20 p.m., Perth Amboy Police Officers Rafael A. Puntiel and Gina Fontan fatally shot Dixon Rodriguez, 32, of Hall Avenue.  According to the officers, Rodriguez attacked Fontan with a knife.

News reports issued within a day after the shooting quoted Rodriguez's neighbors saying that they were skeptical of law enforcement's claim that Rodriguez had threatened the officers.  Some said that he "had the mind of a 6-year-old" and that "he's never hurt anybody."

In a December 6, 2013 news article, the Middlesex County Prosecutor's office claimed that a video, taken from a surveillance camera at a nearby grocery store, supported the officers' version of the shooting.

A December 7, 2013 article revealed that the Prosecutor's Office released 911 tapes from Rodriguez's mother indicating that her son was violent because she had not given him his medication.

On October 9, 2014, I submitted an Open Public Records Act (OPRA) and common law right of access request for "the use of force reports filed by the officer(s) who pulled the trigger, all witness statements taken from anyone and a copy of the video (and audio, if any) that captured the shooting."

On October 23, 2014, James E. O'Neill, Public Information Officer for the Middlesex County Prosecutor's Office released the use of force reports (on-line here) which were filed by the officers on December 19, 2013 and show that both officers fired an "unknown" number of shots which struck Rodriguez an "unknown" number of times.  And, even though I did not request them, O'Neill provided me with .wav files of two 911 call, on-line here and here, that are in Spanish from a female caller--presumably Rodriguez's mother.

O'Neill denied access to the witness statements and the video that captured the event from a nearby grocery store. "These documents are part of a criminal investigatory record and are exempt from public disclosure," he wrote.

"Generator Gate" redux: Warren County Sheriff releases redacted Internal Affairs records.

On October 31, 2014, Warren County released redacted versions of the Sheriff's Office's Corrections Division's internal affairs case logs for the years 2012, 2013 and so far in 2014.  Those logs, along with Sheriff Gallant's October 28, 2014 letter to me are on-line here and my records request for them is on-line here.

One entry on the log, Case No. 2012-21, differs from the rest.  Rather than listing the complainant's and principal's names and a description of the charges, Case 2012-21 simply states "All records contained at Sheriff's Department."

Case No. 2012-21 is the Internal Affairs case related to a widely-publicized incident in which an employee of the Sheriff's Department took a county-owned generator for personal use during Superstorm Sandy.  Background on my lawsuit against Warren County regarding that matter is on-line here.

I know that Case No. 2012-21 is the generator case because the Warren County Prosecutor's January 4, 2013 denial of my records request, which led to my lawsuit, referred to Case No. 2012-21 on the third page of the PDF on-line here.

Tuesday, October 28, 2014

Lawsuit challenges State Police denial of records pertaining to excessive force allegedly being applied against South Jersey woman.

On Friday, December 5, 2014 at 9:30 a.m., Mercer County Assignment Judge Mary C. Jacobson will hear argument on my lawsuit against the New Jersey State Police.  See Paff v. NJ Department of Law & Public Safety, et al, Docket Number MER-L-1623-14, on-line here.  My lawyer in this matter is Walter M. Luers of Clinton.

This lawsuit arises out of phone call I received on May 10, 2014 in which a witness recounted a Commercial Township (Cumberland County) woman's physical encounter with a unidentified State Trooper.  According to a the report, the woman, who weighs ninety pounds, tried to speak with a Trooper who had responded to a residence to investigate a report of an argument or disturbance.  When the woman tried to hand a telephone to the Trooper so that the woman's mother, who was on the line, could "explain the whole thing," the Trooper allegedly grabbed her by the throat and forcible dragged her down the front step, slammed her on the ground and put his kneecap on her throat.  According to the witness, when another witness asked the Trooper to ease up, the Trooper reportedly said "We can do whatever the f*** we want."

In order to learn the State Police version of what had occurred, I submitted an Open Public Records Act (OPRA) request for the arrest reports, police incident reports, audio of phone calls and radio transmissions, dash cam video and criminal complaints.  After State Police records custodian, Marco Rodriguez, granted himself two extensions he ultimately denied the request claiming that there was an open investigation and that the records were exempt as "criminal investigatory records."

I then made a subsequent request for State Police policies and procedures requiring police interactions with civilians to be documented by written reports or computer aided dispatch (CAD) entries.  Rodriguez denied this request on the basis that those records are "designated confidential" by N.J.A.C. 13:1E-3.2(a)(1).  But, that section is inapplicable since it exempts "records concerning background investigations or evaluations for public employment, appointment to public office, or licensing, whether open, closed, or inactive."

Monday, October 27, 2014

Police Chiefs' group seeks entry into OPRA suit over e-mail logs.

By way of background, Atlantic County Judge Nelson C. Johnson, on June 10, 2014, required Galloway Township to disclose e-mail logs showing the sender, recipient, date and subject line of each e-mail sent by a specific government employee during a specified period of time.  On September 4, 2014, Galloway appealed from that ruling.  More information and case documents are on-line here.

On October 23, 2014, the New Jersey State Association of Chiefs of Police ("NJSACOP") requested permission to join the appeal as amicus curiae or "friend of the court."  The NJSACOP, represented by the Morristown law firm of Porzio, Bromberg & Newman, P.C., argued that public disclosure of e-mail logs of police officials would be "crippling" and "could compromise the sensitive investigatory techniques of police departments throughout the State and irreparably damage the fluid and consistent exchange of confidential information within the departments."  The NJSACOP's filing is on-line here.

While the Appellate Division will likely grant the request, the NJSACOP's position doesn't make much sense. Galloway has never argued that the e-mails identified by the log (provided that they weren't otherwise exempt) weren't themselves subject to the Open Public Records Act (OPRA).  Rather, the Township argued that producing a log would require it to create a new record that does not already exist--something OPRA does not require agencies to do. While the Township's position is understandable, the NJSACOP's argument that producing logs would compromise sensitive police investigations is frivolous because any sensitive information could be redacted from the logs in the same way that such information could be redacted from the e-mails themselves.

Friday, October 24, 2014

After lawsuit threat, State releases list of 228 local units who may have allowed improper pension enrollees.

In July 2012, the New Jersey Office of the State Comptroller (OSC) published a report (on-line here) on towns and school districts that appeared to have been improperly keeping their appointed professionals enrolled in the PERS state pension system despite a 2008 law that required those professionals to be removed from the system.  According to page 7 of its report, the OSC
first obtained data concerning . . . professionals who are providing services to municipalities and school districts (collectively referred to in this report as “local units”) [and] then cross-referenced the names of those professionals with PERS data and developed a list of 332 PERS-enrolled professionals providing such services [that] were retained by 228 different local units.
I then submitted an Open Public Records Act (OPRA) request for the lists of the 228 local units and 332 PERS-enrolled professionals and was denied because disclosure would allegedly violate the professionals' "reasonable expectation of privacy."    More information on my OPRA request and the State's denial is on-line here.

Today, after receiving a lawsuit threat from my lawyer, Richard M. Gutman of Montclair, OSC Records Custodian Robert Shane decided to disclose the list of 228 local units while still suppressing the list of 332 PERS-enrolled professionals.  The list of local units is on-line here.

The list does not identify the county in which each local unit is located.  This makes it impossible to determine whether the "Fairfield" on the list refers to the municipality in Essex or the one in Cumberland County.   And, the presence of a town on this list does not automatically equate to a violation of the PERS or the public trust.  Please consider this list merely as a source of information to aid future research.

Thursday, October 23, 2014

Lawsuit: Kinnelon delinquent on meeting minutes since 2009.

On October 16, 2014, a local woman filed a civil lawsuit against the Borough of Kinnelon (Morris County) seeking to compel the Borough Council and Interim Borough Clerk Karen M. Iuele to approve and make the Council's executive and "workshop" meeting minutes "promptly available" as required by the Open Public Meetings Act (OPMA).

In her lawsuit, Donna Dixon claims that the Kinnelon Council had not, as of this summer, created any written minutes of its nonpublic (closed or executive) meetings since January 1, 2009.  The lawsuit also alleges that the Borough has not created, since 2009, any minutes of its "workshop" meetings that are held on the second Thursday of each month.  The only minutes the Borough has maintained are those of the Council's "regular" meetings held on the third Thursday of each month.

Dixon claims that when she made an Open Public Records Act (OPRA) request for the delinquent minutes in August, Iuele needed a thirty day extension to handle the request. Then, Dixon and the Borough Council released seven sets of closed minutes on September 18, 2014.  According to Dixon, several closed meetings occurred between 2009 and 2014 for which no minutes have yet been released.  She seeks an order compelling the Borough to make all its past minutes available and to develop an enforceable procedure to ensure that future meeting minutes are made promptly available.  She also seeks an order compelling the Borough Council to make its meeting agenda publicly available at least two days prior to each meeting.

Her suit, filed by Walter M. Luers of Clinton, is captioned Dixon v. Borough of Kinnelon, et al, Docket No. MRS-L-2480-14.  No court proceedings are yet scheduled.  A copy of Dixon's lawsuit is on-line here.





Tuesday, October 21, 2014

State may close Bridgeton Port Authority in January.

The transcripts of the Local Finance Board's August 13, 2014 meeting minutes pertaining to the Bridgeton Port Authority are on-line here.  These 22 pages provide a good example of a public agency that has been woefully mismanaged and neglected.  Here's a quote from the transcript:
Here we have an authority that doesn't do any of those things. With all due respect it is a port authority and there isn't a single boat anywhere--or a slip for that matter. They don't have staff and they don't do anything.
Thomas Neff, Chairman
New Jersey Local Finance Board


Saturday, October 18, 2014

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.

John Paff v. Bergen County, et al.
Bergen County, Docket No. BER-L-7739-14
Hon. Peter E. Doyne, A.J.S.C.
October 16, 2014
Click here for the court's decision.
Click here for file complaint, brief and exhibits.
Click here for Order awarding Plaintiff attorney fees and costs.

Summary: List of Internal Affairs Complaints against corrections officers who work in the Bergen County Jail is subject to disclosure under OPRA.  “Attorney General Guidelines” are not a recognized exception to OPRA’s general requirement favoring disclosure of government records.

Thursday, October 16, 2014

Letter to NJ Pensions: Should Gibbsboro's lawyers' PERS termination be retroactive to 2008?

It looks as though Gibbsboro recently took Municipal Prosecutor Higgins and Public Defender Wiggington off the PERS pension rolls because of an investigation by the Pension Fraud and Abuse Unit.  My questions are: a) Will the Pension Fraud and Abuse Unit push for these lawyers' removal retroactive to 2008? and b) If not, would there be a financial benefit to PERS if I were to file a lawsuit to compel retroactive removal?  My letter to the Pension Fraud and Abuse Unit follows:

------------------------------------------------

New Jersey Libertarian Party's
Open Government Advocacy Project
P.O. Box 5424
Somerset, NJ  08875
732-873-1251
paff@pobox.com

October 16, 2014

Marc Greenfield
Pension Fraud and Abuse Unit
via e-mail

Dear Mr. Greenfield:

I chair the New Jersey Libertarian Party's Open Government Advocacy Project.  We have recently been investigating the issue of municipal governments', despite the 2007 enactment of N.J.S.A. 43:15A-7.2, seeming unwillingness to wean their independent professionals, such as municipal prosecutors and public defenders, from PERS enrollment.

As a starting point, we began our investigation with Camden County lawyers Timothy Higgins and Charles Wiggington who serve, respectively, as municipal prosecutor and public defender for the Borough of Gibbsboro.  The blog articles we have published so far on our investigation are here and here.

In summary, we have determined that both Higgins and Wiggington were certified by Gibbsboro as being PERS eligible until their termination from PERS effective August 30, 2014.  This morning, I received, via an OPRA request to Gibbsboro, your August 18, 2014 e-mail to Borough Clerk Anne Levy and your colleague Kristin Bell's August 13, 2014 letter to the Borough.  Both the e-mail and the letter are on-line here.

From reviewing all the material, it appears to me that Gibbsboro was carrying Higgins and Wiggington on the PERS rolls, and probably intended to keep carrying them, until the Pension Fraud and Abuse Unit recently decided to conduct its investigation into these lawyers' PERS eligibility.  Under the pressure of your Unit's investigation, Gibbsboro finally threw in the towel and decided to remove the two lawyers from the PERS rolls.

While this is a good thing, it leaves open the question of whether Higgins' and Wiggington's separation from PERS ought to have been retroactive to 2008.  It seems to us at least arguable that if Higgins and Wiggington are not now eligible for PERS, they probably have not been eligible for the last six or so years.

As a public service, we may be interested in filing a lawsuit in lieu of prerogative writs seeking an order compelling the State to retroactively remove Higgins and Wiggington from the pension rolls on the proper date in 2008.  Similarly, we might investigate filing citizen complaints, in accordance with R.7:2-2(a)(1), against Gibbsboro's Certifying Officer and Certifying Officer's Supervisor if they certified to Higgins's and Wiggington's PERS eligibility when it was plain that they were not eligible. Before embarking on either of these paths, we would like to ask two questions.  First, is the Pension and Fraud Unit's intent to seek retroactive removal of Higgins and Wiggington from the PERS rolls or are you satisfied with these lawyers' removal from the PERS effective August 30, 2014?

Second, if your Unit is not seeking to take any further action and is content with the August 30, 2014 separation date, would a successful effort on our part to roll these lawyers' termination dates back to 2008 have any actual effect on the Pension System?  We do not wish to commence a lawsuit unless success would yield a financial benefit to the PERS and its legitimate enrollees.

Thank you very much for your attention to this matter.  I look forward to hearing from you.

Very truly yours,

John Paff

Wednesday, October 15, 2014

Plot thickens on Gibbsboro prosecutor's and defender's pension enrollment

On October 14, 2014, I wrote to Gibbsboro's Mayor and Clerk seeking more information regarding Municipal Court Prosecutor Timothy Higgins' and Public Defender's Charles Wiggington's enrollment status with the PERS pension.  That letter is on-line here.

Today, in response to another OPRA request, Borough Clerk Anne Levy provided me with the Borough's August 27, 2014 letter to New Jersey's Pension Fraud and Abuse Unit advising that Unit that Higgins and Wiggington were "terminated from the PERS pension as of 9/1/14."  According to the letter, which is on-line here, the termination of the two men apparently resulted from an August 8, 2014 e-mail and a August 13, 2014 letter that the Borough received from the Pension Fraud and Abuse Unit.  I have submitted an OPRA request for that e-mail and letter and will post them upon receipt.

Tuesday, October 14, 2014

Letter to Gibbsboro regarding professionals' enrollment in state pension

New Jersey Libertarian Party's
Open Government Advocacy Project
P.O. Box 5424
Somerset, NJ  08875
732-873-1251
paff@pobox.com

October 14, 2014

Hon. Edward G. Campbell, III, Mayor and Clerk Anne D. Levy
Borough of Gibbsboro
49 Kirkwood Rd
Gibbsboro, NJ  08026
(via e-mail only to mayor@gibbsborotownhall.com and gibbyclerk@comcast.net

Dear Mayor Campbell and Clerk Levy:

I write to you both on behalf of the New Jersey Libertarian Party's Open Government Advocacy Project because Clerk Levy serves as the "Certifying Officer" and Mayor Campbell serves as the "Certifying Officer's Supervisor."  This means that both of you, in accordance with N.J.S.A. 43:3C-5, periodically certify to the State which of Gibbsboro's employees are eligible for enrollment in New Jersey's Public Employees' Retirement System (PERS).  For your ready reference, I have placed your certification credentials here, which I recently received from Clerk Levy in response to a public records request.

Also in response to a recent records request, Clerk Levy provided me with a table that reflects which Gibbsboro employees you both deemed to be eligible for PERS enrollment for the third quarter 2014. That table is also on-line here for your ready reference.

The first thing that struck me was that Mayor Campbell himself is enrolled in PERS while none of the other members of the Borough Council are enrolled.  But, I subsequently researched the PERS Handbook (on-line here) and found that elected officials are eligible for enrollment if they were elected prior to July 1, 2007.  I believe that Mayor Campbell has been Mayor of Gibbsboro for at least that long, so I have no quibble with his enrollment.  (I include the fact of his enrollment in this letter, which I have made public, only so that those who review the table at the link above and question the mayor's enrollment will understand that it is permissible under PERS rules.)

Not so clear, however, is the PERS enrollment of Timothy Higgins and Charles Wiggington, who appear, respectively, to be Gibbsboro's municipal court prosecutor and public defender.  I note that the table shows that these two lawyers were enrolled in PERS but were "terminated" on August 30, 2014.

On-line here is the New Jersey's Office of the State Comptroller (OSC) July 17, 2012 report entitled "Improper Participation By Professional Service Providers In The State Pension System." According to this report, the PERS pension was intended for career employees who dedicate their careers to public service.  Despite this intention, various independent contractors, including appointed lawyers and engineers, have, over the years, enrolled in PERS even though they were ineligible.

To combat these improper enrollments, the Legislature enacted N.J.S.A. 43:15A-7.2 in 2007 which intended to get these freeloading professionals off the PERS rolls.  However, the report laments, the legislation has been largely unsuccessful because as of the report's writing in 2012
an overwhelming majority of surveyed local government entities failed to comply with the statutory  mandate to determine whether these professionals are independent contractors or employees. As  a result, they have failed to remove ineligible independent contractors from PERS. (Report, page 1).
The report gives examples of municipal court prosecutors and public defenders who the OSC found to be improperly enrolled in PERS.  Strikingly, the report, on page 11, mentions Gibbsboro's improper determination that its prosecutor and public defender were somehow "grand fathered" into the pension plan by virtue of their length of service:
Similarly, the Borough of Gibbsboro identified its municipal prosecutor and  public defender as professional service providers enrolled in PERS. The borough stated to us, in  relevant part, that these individuals have been in those positions since 2004 and 2006  respectively and “while they are appointed on a yearly basis, they are continuing employees.”  As discussed above, however, the law provides no such grand fathering exception. 
This raises a few questions regarding Higgins and Wiggington and Gibbsboro's treatment of their PERS enrollment:

1. Does the "terminated on August 30, 2014" entry on Gibbsboro's 3rd Quarter 2014 PERS table mean that Higgins and Wiggington were terminated from PERS enrollment effective August 30, 2014?

2. If so, why did Gibbsboro's Certifying Officer and Certifying Officer's Supervisor continue to keep them on the pension plan until 2014 when it appears that they should have been removed in 2008?

3. If I understand the matter correctly, Gibbsboro's delay in removing these enrollees is especially hard to understand since the OSC put the Borough on notice of this exact issue more than two years ago.

I do not profess to be an expert in PERS, or pensions in general so, for all I know, I may be suffering from a misunderstanding.  So, I invite either of you to call or write to correct my misunderstanding.  I have also submitted an additional Open Public Records Act request for more documentation.

Thank you for your attention to this matter.

Very truly yours,

John Paff, Chairman

Sunday, October 12, 2014

Crest Captain Mayer seeks "opportunity to join in 'Brady letter' case."

Update: November 29, 2014.  David Mayer's brief opposing disclosure of the Brady letters is on-line here.
Approximately six weeks after Judge Nelson C. Johnson ruled that the Cape May County Prosecutor has to provide we with "Brady letters" involving Wildwood Crest Police Captain  David Mayer and Lieutenant Michael Hawthorne, Mayer, in an October 7, 2014 letter from attorney Joseph J. Rodgers, has asked Johnson to reopen the case.  According to Rodgers' letter, Mayer "will be harmed by the court's ruling unless the case is reopened to allow all interested parties an opportunity to join in the case.  Background on the case is here.

In an October 12, 2014 response, my attorney Richard Gutman urged Johnson to deny Rodgers' request  Both Rodgers' letter and Gutman's response are on-line here.



Friday, October 10, 2014

Unpublished trial court OPRA and OPMA 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.

Kean Federation of Teachers v. Kean University
Ocean County, Docket No. OCN-L-179-14  
Hon. Vincent J. Grasso, A.J.S.C.
September 18, 2014
Click here for the court's decision.

Summary: Draft resolutions that are to be voted upon by the Board are deliberative and are not subject to OPRA or the common law right of access. Delay of ninety-seven (97) before redacted minutes of closed meeting are disclosed is not "prompt" under the OPMA.  Redacted minutes were incomprehensible and thus violated OPMA's mandate that meeting minutes contain sufficient facts and information to describe what took place at the meeting and what final action was taken in order to permit the public to understand and appraise the reasonableness of the public body’s determination. Board violated the OPMA by over-redacting its closed minutes and by failing to properly explain the redactions.


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.

John Paff v. Ocean County Prosecutor's Office
Ocean County, Docket No. OCN-L-1645-14
Hon. Vincent J. Grasso, A.J.S.C.
October 2, 2014
Click here for the court's decision.

Summary: Access sought to police dash camera video of an incident involving a police offer and a citizen.  Court held that the Police Department's general order requiring the video to be recorded had the force of law, thus taking the recording out of the scope of OPRA's criminal investigatory record exception.

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.

Newark Morning Ledger v. Office of the Governor
Mercer County, Docket No. MER-L-948-14
Hon. Mary C. Jacobson, A.J.S.C.
October 2, 2014
Click here for the court's decision.

Summary: Newspaper reporter sought communications regarding a gas pipeline project through the Pinelands region.  Court ruled that certain records were available but that others were not.  The court discussed the ongoing investigation exception, the advisory, consultative and deliberative (ACD) exception and the application of the the ACD privilege in the context of the common law right of access.


Thursday, October 9, 2014

State refuses to identify municipal professionals enrolled in state pension plan. Claims that those professionals have a "reasonable expectation of privacy."

In 2007, the New Jersey Legislature enacted N.J.S.A. 43:15A-7.2, which was intended to curtail the participation of professional service providers such as attorneys and engineers in the New Jersey Public Employees’ Retirement System (PERS). The law, which became effective on January 1, 2008, made these professionals ineligible for PERS participation as of the expiration date of their existing contract or annual appointment.

Despite this mandate, the New Jersey's Office of the State Comptroller (OSC), in a July 17, 2012 report entitled "Improper Participation By Professional Service Providers In The State Pension System," (on-line here) found that "an overwhelming majority" the municipalities and school districts it surveyed had "failed to comply with the statutory requirement to remove independent contractors from PERS."  This failure, the OSC report noted, has the potential to cost the state millions of dollars in inappropriate future pension benefits."

According to the report, the OSC developed a list of 332 professionals, retained by 228 municipalities and school districts, who remained in the PERS system after the law took effect.  The OSC then conducted a survey of 58 of the 228 local units and several of those municipalities surveyed are mentioned in the report.

On September 22, 2014, I submitted an Open Public Records Act (OPRA) and common law right of access request (on-line here) to the OSC for a list of the 332 PERS-enrolled professionals as well as a list of the 228 local units that retained those 332 enrollees.  In his October 8, 2014 letter (on-line here), OSC Records Custodian Robert Shane denied access to these lists claiming a "reasonable expectation of privacy" that the pension-enrolled professionals have "in not publicizing the fact that he or she is under investigation by a public agency."  According to Shane, "the reputational harm to targets of investigations in the absence of confidentiality is well-recognized" by law.  He also denied access on the basis of there being an on-going investigation and because the types of pension records I requested are specifically exempted from access by the OPRA.

In response to my request under the common law right of access, Shane claimed that "the public's interest in confidentiality of the documents outweighs the requestor's interest in access."

I am considering litigating this denial.

Tuesday, October 7, 2014

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.

Ganzweig v. Lakewood Township, et al
Ocean County, Docket No. OCN-L-1292-14
Hon. Vincent J. Grasso, A.J.S.C.
October 2, 2014
Click here for the court's decision.

Summary: A local police department's policy regarding the creation and retention of dash cam videos has the force of law within the meaning of NJSA 47:1A-1.1 and therefore the dash cam videos are not exempt as "criminal investigatory records."

Medford Township, absent a written agreement, paid private organization's electric bill.

Following is my letter to the Interim Manager of Medford Township in Burlington County.
------------------------------------------------------------
October 7, 2014

Katherine Burger, Interim Manager
Township of Medford
17 North Main Street
Medford, NJ 08055
via e-mail only to kburger@medfordtownship.com

Dear Ms. Burger:

Thank you for your October 6, 2014 response to my Open Public Records Act (OPRA) request and for providing me with the electric bills and "Township Manager Exit Report."  For your ready reference, I have placed your response and the responsive records on-line here.

According to the Exit Report, the Township's erroneous installation of some drainage pipes caused water stagnation in one of the Birchwood Lakes Homeowners Association's lakes. In lieu of fixing the pipe installation, the Township agreed to pay up to $200 per year for electricity to run an aerator pump that the Association installed in the lake.  The electric bills show that the pump's actual usage was more in the range of $1,200 per year.

This arrangement causes concern and raises questions.

First, I believe that it is axiomatic that a municipality cannot spend public funds without some sort of formal approval process, such as submission of a voucher and approval of the voucher by the the municipal council.  Unless there are some other records that you did not disclose in response to my request, it appears that the Township entered into a verbal agreement to establish and pay for an electric account that benefitted a private organization.  How can this be squared with the Local Public Contracts Law and other laws and regulations that prescribe the procedures that must be followed before public money can be spent?

Second, even if the agreement is valid, it concerns me that the Township put the electric bill in its own name rather than having the Association put the bill in its name and then reimbursing the Association the agreed upon amount.  This made the taxpayers responsible for the entire bill, which greatly exceeded the $200 annual amount that was estimated by the Association.  Establishing a municipal utility account in this instance also made it more difficult for members of the public who reviewed the Township's bill list to realize that a private party was receiving a taxpayer funded benefit.

I am making this letter public so that Medford taxpayers may be informed of this issue.  I invite the taxpayers to direct any questions regarding this matter to you or the Township Council.

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, October 6, 2014

Appellate Division: OPRA's fee shifting provision has no bearing on indigent's right to sue.

On October 6, 2014, the Appellate Division, in an unpublished opinion which is on-line here, reversed the trial court's refusal to waive the filing fee for an indigent woman who wished to sue her local school board for violating her rights under the Open Public Records Act (OPRA).  The lower court held that because OPRA allows a successful litigant to recover costs and fees from the government agency sued, there is no need to waive filing fees for such an indigent.  The Appellate Division aptly ruled that "[i]f an indigent person cannot pay the filing fee to start a fee-shifting action, the prospect of having the fee reimbursed in the future is of no value."

Tuesday, September 30, 2014

Ethics complaint against Cumberland Freeholder and Willingboro Mayor

September 30, 2014

Patricia Parkin McNamara
Local Finance Board
101 S Broad St – PO Box 803
Trenton, NJ 08625-0803
(via e-mail only to Patricia.McNamara@dca.state.nj.us)

Dear Ms. McNamara:

We intend this e-mail to be our complaint against Douglas Long who, at all times relevant to the activities alleged below, served both as Deputy Director of the Cumberland County Board of Chosen Freeholders and also as partner in the law firm of Long, Marmero and Associates, LLP.  This complaint is also against Jacqueline Jennings who, at all times relevant to this complaint, served as Mayor of Willingboro Township in Burlington County and who had been awarded a position as the Division Head of the Office of Purchasing in Cumberland County.

In accordance with N.J.A.C. 5:35-1.1(b), following are the required elements of the complaint:

1. State the point of the Local Government Ethics Law (LGEL) alleged to be violated. 

N.J.S.A. 40A:9-22.5(a), (c) and (d).

2. State the name(s) and title(s) of the parties involved in the action and against whom the complaint is filed. 

Complainants John Paff and the New Jersey Libertarian Party and Respondents Douglas Long and Jacqueline Jennings.

3. Set forth in detail the pertinent facts surrounding the alleged violative action. 

Attached are three documents:

1. Willingboro's January 1, 2013 Reorganization Meeting Minutes.
2. Cumberland County Resolution 2013-43 passed on January 8, 2013.
3. Cumberland County Resolution 2013-78 passed on January 22, 2013.

These documents show that:

1. Jacqueline Jennings was Willingboro's mayor in 2013.
2. Jacqueline Jennings was appointed to head Cumberland County's Office of Purchasing on January 8, 2013 for a term to begin on February 1, 2013.
3. Jacqueline Jennings' appointment as head of Office of Purchasing was rescinded on January 22, 2013.  The stated reason for rescinding the resolution is because Jacqueline Jennings had secured a different position.
4. Douglas Long moved and seconded both the resolution that established and the one that rescinded Jacqueline Jennings' appointment.
5. At the time of Jacqueline Jennings' appointment, Douglas Long's law firm served as Willingboro Township's Labor Counsel.

More information and background on, see the citizen's questions and comments along with the Freeholders' responses starting at 00:14:48 on the video on-line here.

We contend that it violated the LGEL for Freeholder Douglas Long, approximately a week after his law firm had been awarded Willingboro's Labor Counsel contract, to hire Willingboro's mayor as a Division Head for Cumberland County.  We likewise contend that it violated the LGEL for Jacqueline Jennings to have participated in a meeting where a contract was given to Douglas Long's law firm when she was, on information and belief, engaged in negotiating for a position with the County for which one of the law firm's partners served as Freeholder.  We believe that the rescission of Jennings' appointment prior to it taking effect is of no moment because the LGEL also prohibits"attempts" by officials to use their positions for unwarranted gains.  See, e.g. N.J.S.A. 40A:9-22.5(c).

This appears to be a situation where both Long and Jennings at least attempted to use their positions to reward each other with taxpayers' money.  We believe that this is the type of conduct that the LGEL was intended to prohibit.  Yet, given the Board's dismissals in LFB-11-147 and LFB-11-149 (Harper) (compared to its decision to levy a $500 fine in LFB-12-012 (Costa)), we are not able to discern any workable standard used by the Board in adjudicating of LGEL cases.  Accordingly, when we perceive a possible violation, as we do here, we bring it in the form of a complaint in hopes that the Board, when issuing its decision, will help clarify the LGEL's contours and establish some predictability of its future determinations.

4. Indicate whether the complaint concerns the complainant in any way and what, if any, relationship the complainant has to the subject of the complaint. 

Complainants have no interest in or relationship to this complaint greater than any other citizen or organization who wishes for all government officers and employees to comply fully with the Local Government Ethics Law.

5. Indicate any other action previously taken in an attempt to resolve the issue and indicate whether the issue is the subject of pending litigation elsewhere. 

No other action has been taken previously in an attempt to resolve this issue and this issue is not the subject of any pending litigation. Thank you for your attention to this matter. I ask that you please acknowledge your receipt of this complaint within 30 days.

Sincerely,

/s/ John Paff, Chairman
New Jersey Libertarian Party's
Open Government Advocacy Project
P.O. Box 5424
Somerset, NJ 08875
Voice: 732-873-1251

Wednesday, September 17, 2014

Threatened lawsuit seeks Bridgeton Port Authority's compliance with state law.

10/03/14 Update: The Port Authority will meet on Wednesday, October 15, 2014 at 4:30 P.M. at the office of the Bridgeton Tourist Center, 50 East Broad Street, Bridgeton.  It is a public meeting.
On September 17, 2014, I notified the Bridgeton Municipal Port Authority (Cumberland County) of my intent to file suit against it on October 6, 2014 unless the Authority commits to bringing itself into compliance with state statutes and regulations that promote public transparency and financial discipline.  I sent the Authority and its attorney a draft lawsuit (on-line here) that I intend to file unless the Authority and I can come to an alternate arrangement.

One of my complaints is that the Authority has not yet abided by a 2011 law requiring it to maintain a web site or web page from which the public can access certain documents and information.  In order to help remedy this deficiency, I obtained some important records from the Authority by way of an Open Public Records Act (OPRA) request and have placed them at the following links:
2006 through 2013 Audit and Audit Compilations
2012 to 2014 Meeting Minutes and Resolutions
Authority's 2014 Legal Services invoices

Monday, September 15, 2014

Galloway Township appeals OPRA ruling

On September 4, 2014, the Township of Galloway (Atlantic County) filed its notice of appeal of a June 10, 2014 order that compelled the township to disclose a log of e-mails sent and received by the township clerk and police chief during a two-week period in 2013.

Background information on the suit is here as are the transcripts of the hearings on November 1, 2013, January 9, 2014 and June 2, 2014.

Tuesday, September 9, 2014

Gloucester Township discloses DPW Director police reports.

Asserting that "the criminal investigation has concluded," Gloucester Township (Camden County) municipal attorney David F. Carlamere has disclosed police reports of a "theft of services" allegedly committed by former Township Public Works Director Len Moffa.  I have previously blogged about this lawsuit here.

According to the reports, which along with other documents are on-line here, five "Gloucester Township Clean Community" employees all gave statements that on May 5, 2014 Moffa had them go into the basement of his residence to "remove several pieces of furniture, several electronics and some trash that was damaged by flooding."  According to the report, some of the property was taken to Public Works and "discarded in township dumpsters."

A supplemental police report states that it wasn't until June 30, 2014 that Camden County Assistant Prosecutor Angela Seixas determined that criminal charges would not be brought against Moffa because its "investigation failed to disclose sufficient evidence to prove an allegation of criminal conduct beyond a reasonable doubt."   Finally, a pension determination letter discloses that Moffa was not eligible for any pension because he was employed by the Township for less than ten years as of the date of his termination.

The Township posits that its denial of my records request was proper because the investigation was still pending when my records request was received and because they are "criminal investigatory records."

Perth Amboy, in a sanctimonious display, finally gives up police report on alleged teacher-on-teacher sexual assault.

In a September 3, 2014 letter, Perth Amboy (Middlesex County) City Attorney Mark J. Blunda, provided a redacted copy of a two-page police report regarding an alleged sexual assault by one Perth Amboy school teacher against another.  The letter and the report, on-line here, bring my lawsuit, which I blogged about here, to an end.

Blunda's letter, written to Middlesex County Assignment Judge Travis L. Francis and copied to my lawyer, Walter M. Luers of Clinton, contains a fair amount of sanctimony.  In his letter, Blunda intoned:
While some may consider re-publication of salacious details of a sexual assault to be an act of intentional infliction of emotional distress upon the victim, since the events happened more than four years ago and the criminal and civil matters have been completed, the municipality's grant of access to the record will not interfere with the judicial or criminal process. Any potential liability for further publication, or the chilling effect that it may place on future victims, falls on the Plaintiffs shoulders.
So, according to Blunda, I am intentionally inflicting "emotional distress" upon the alleged victim by seeking police reports that would disclose what, if anything, the Perth Amboy Police Department did about this alleged sexual assault.  Never mind that the alleged victim, who received a $199,000 secret settlement from the Perth Amboy Board of Education, herself put on public display in her lawsuit the same "salacious details" that Blunda now feigns an interest in protecting.

In sum, and as I reported in my earlier blog entry, Perth Amboy could have avoided this entire lawsuit had it been more candid about which records the City had on file regarding this incident.  It was only after my OPRA lawsuit was filed that the City disclosed that it only possessed one initial police report and that the matter was thereafter transferred to the Middlesex County Prosecutor's Office.

Wednesday, September 3, 2014

Lawsuit: Gloucester Township allegedly used threat of arrest to coerce employee to resign.

On August 5, 2014, West Berlin attorney Donald M. Doherty, Jr. filed an Open Public Records Act (OPRA) lawsuit on my behalf against Gloucester Township (Camden County).  The lawsuit, John Paff v. Township and Gloucester and Rosemary DiJosie, Township Clerk, Docket No. CAM-L-3147-14 is on-line here.

The lawsuit's basis is a tip from an informant that those in power in Gloucester Township government sought to remove a high-ranking employee from his position so that they could give the job to another person who was politically connected and favored.  In order to prod the employee into leaving his position, those holding political sway allegedly arranged for the employee to be caught doing something illegal and then used a threat of arrest and prosecution to coerce him into resigning.

I sought disclosure of several records, including police reports, regarding this alleged incident under OPRA and the common law right of access.  In her response, Gloucester Township Clerk Rosemary DiJosie admitted that there was an "on-going investigation" into the employee but that public disclosure of the police reports "would be inimical to the public interest."  DiJosie did, however, disclose a Computer Aided Dispatch (CAD) screen shot on "Police Case # 14-019933" showing that  police were dispatched to a Township address on May 13, 2014 at about 3:30 p.m.  The "Call for Service" description on the CAD report was "Theft - All other."

Further documents received indicated that the Township entered into a "Severance Agreement and General Release" with the employee.  The agreement, which was signed on June 4, 2014, allowed for the employee to retain his paid medical benefits through July 31, 2014 and contained a covenant under which the employee gave up all rights to sue the Township.

Interestingly, the Agreement provided that the employee's date of severance from Township employment was May 12, 2014--the day before he was allegedly caught in committing an illegal act.  According to the lawsuit, the timing of his severance lent "substantial credence to several elements of the 'tipped' facts - i.e., that while 'the powers' wanted [the employee] out, they did not want to "hurt" him by jeopardizing his pension etc."

Tuesday, August 26, 2014

Rural Cumberland County township adopts e-mail policy

In response to my request, the Township of Greenwich (Cumberland County) adopted an e-mail policy, on-line here, for its elected and appointed officials.  While weaker than what I would prefer, the policy "discourages" Township officials from using their personal e-mail accounts.  Instead, it requires them to adopt a free e-mail account, such as one from GMail or Yahoo, and "use a name such that they are identifiable in the contest of their role with the Township of Greenwich including by way of example and not limitation: 'townshipcommitteemansmith@gmail.com'”  It requires officials to give the Township Clerk their e-mail passwords so that e-mails may be searched "provide responsive information in compliance with State law to any document request.

Sunday, August 24, 2014

Judge grants access to Cape Prosecutor's letters regarding Wildwood Crest police officials, ruling that they "contain findings of public official misconduct."

Update: 11/11/14

The transcript of the October 24, 2014 hearing is on-line here.   The next hearing has been scheduled for Friday, December 12, 2014 at 10:30 a.m.


Update: 09/26/14
In response to the prosecutor's 09/15/14 filing, my attorney, Richard Gutman, has filed a motion to strike Prosecutor Taylor's certification and argues against the CMCPO's motion for reconsideration.  My response, together with the CMCPO's filing, is on-line here.
Update: 09/15/14
On September 15, 2014, the Cape May County Prosecutor's Office has filed a motion for reconsideration of Judge Johnson's August 21, 2014 order that granted me access to "Brady" letters regarding Wildwood Crest police officials.  The motion, which is on-line here, will be heard on Friday, October 24, 2014 at 9 a.m. in Atlantic City.

In a certification that accompanied the motion, Prosecutor Robert L. Taylor claimed that disclosure of the "Brady" letters "will impede [his] duties to supervise local police departments in consultation with local civilian authorities in Wildwood Crest."  
The Prosecutor's Office also asked the court, if it denies its motion for reconsideration, to stay disclosure of the letters so that it can file an appeal in the matter. 
In his August 21, 2014 Order and Decision (on-line here), Superior Court Judge Nelson C. Johnson ruled that the public is entitled to see unredacted versions of four letters written "by the Cape May County Prosecutors's Office [containing] exculpatory or favorable information to [criminal] defendants concerning" two Wildwood Crest Police officials.  In his ruling, Johnson held that the letters "contain findings of public official misconduct, which the public certainly has a heightened interest in knowing."

Such exculpatory letters from a prosecutor are referred to as "Brady letters" and are named after the United States Supreme Court's 1963 decision in the case of Brady v. Maryland.  That decision, among other things, requires law enforcement officials to notify criminal defendants and their lawyers whenever the government receives information that a police officer involved in the defendants' cases has been untruthful.

Johnson, who characterized the Prosecutor's defense to my lawsuit as being "akin to a mantra," had reviewed the four letters in camera (privately in his chambers).  He found that while not "technically 'Brady letters,'" two of the letters "written by Prosecutor Taylor very pointedly address the legal and public policy concerns enunciated by the Brady Court."  He went on to say that those two letters are "harbingers of Brady Letters which will be written by [Taylor's] office in the future should either Captain [David] Mayer or Lieutenant [Michael] Hawthorne be called to testify as witnesses in a criminal case."

Importantly, Judge Johnson found that all four letters were exempt under the Open Public Records Act's advisory, consultative and deliberative exemption.  Thus, recovery of my attorney's fees for bringing this case is unclear.  But, even though I lost on OPRA, Judge Johnson found that "the public interest in said letters far outweighs any government interest in confidentiality."  Accordingly, he found that apart from OPRA, I had a common law right to disclosure of the letters.

Johnson gave the Prosecutor's Office 21 days within which to either disclose the letters or appeal his ruling.  I was represented in the case by Richard M. Gutman of Montclair.

Background on this case are available in my blog articles written on June 20, 2014 and July 22, 2014.

Thursday, August 14, 2014

New OPRA lawsuit: Chatham Township keeps police officer's claim and two settlement agreements secret.

At its September 12, 2013 meeting, the Chatham Township (Morris County) Committee passed Resolutions 2013-181 and 2013-182 which, respectively, a) authorized settling a claim filed by former Chatham police sergeant Michael Giannone and b) authorized $100,000 of Township money to cover "the Township's share in this settlement."

Upon learning this, I filed an Open Public Record Act (OPRA) request for the settlement agreement between Giannone and the Township as well as the Notice of Tort Claim in which Giannone set forth the basis for his claim.  I asked for identical records regarding a claim filed in November 2013 by Chatham police officer Ed Gibney. 

Township Clerk Gregory J. LaConte partially fulfilled and mostly denied my request.  In his June 4, 2014 response, LaConte provided me with an unredacted version of Gibney's Tort Claim Notice and a heavily redacted version of Giannone's. 

Gibney's claim had as its basis his August 14, 2013 suspension from duty which he contended was "procedurally improper."  Giannone's claim was so heavily redacted that its basis could not be determined.

LaConte denied access to the Township's settlement agreements with both Giannone and Gibney claiming that they "are materials resulting from confidential personnel matters and not civil litigation."

Clinton attorney Walter M. Luers filed a lawsuit on my behalf, Paff v. Chatham Township, Docket No. MRS-L-1793-14.  The filing is on-line here.  The matter will be heard in Morristown before Thomas L. Weisenbeck, A.J.S.C. at 1:30 p.m. on Thursday, September 25, 2014.

School board's reason why secrecy is necessary is itself secret.

I am accustomed to public bodies claiming that their executive session minutes are confidential.  It is not so typical, however, for the public body's reasons for wanting to keep its executive minutes secret to also be kept secret.  Not knowing a public body's reason for keeping a document secret makes it very difficult to challenge its claim of confidentiality.

On May 13, 2014, Passaic County Superior Court Judge Ralph L. DeLuccia told the Clifton Board of Education to provide him with some additional information so that he could decide whether or not certain portions of the Board's June 19, 2013 executive session meeting minutes should or should not be disclosed to the public.  So, the attorney for the school board, Donald K. Okner, wrote up a certification dated May 20, 2014 and sent it to the court without sending a copy to my lawyer.  Judge DeLuccia, based on the lawyer's secret certification, decided that the executive session minutes need to be kept secret.

On August 22, 2014 at 9 a.m., Judge Thomas F. Brogan will hear my motion, filed by Clinton lawyer Walter M. Luers, seeking to unseal the May 20, 2014 certification that convinced Judge DeLuccia to keep portions of the June 19, 2013 executive session minutes confidential.

My motion and the school board's opposition are on-line here and here.

Tuesday, August 12, 2014

OPRA suit challenges State's refusal to disclose OPRA requests

On Wednesday, October 8, 2014 at 3 p.m., the Hon. Mary C. Jacobson, A.J.S.C. will hear argument in my Open Public Records Act (OPRA) case against the New Jersey Motor Vehicle Commission.  My order to show cause, civil complaint, exhibits and brief, filed by Walter M. Luers, Esq. of Clinton, are are on-line here.

My lawsuit challenges the MVC's denial of my request for "all OPRA requests submitted to the MVC between 05/05/14 and 05/12/14."   The MVC oddly denied my request on the basis that disclosure would give "an advantage to competitors" and because "there is an interest of third parties in protecting the confidentiality of their requests for access to public documents"

Tuesday, August 5, 2014

Ocean County judge to review dog bite video

Update: 01/22/17: Ocean County Prosecutor files its appeal brief with the New Jersey Supreme Court.
Update: 06/30/16: Appellate Division affirms trial court's ruling in a 2-1 decision

Update: 10/02/14: Court orders release of video.  Click here.  Prosecutor has, however, appealed the ruling.
Update: 09/15/14:  Oral argument is scheduled for Thursday, September 18, 2014 at  2 p.m. before Judge Grasso in Toms River.  Supplement briefs submitted by the parties are on-line here. The Prosecutor has indicated that OCPO Detective John Halliday will testify at the hearing.
I have previously blogged about my Open Public Records Act (OPRA) case against the Ocean County Prosecutor on June 24, 2014 and July 2, 2014. Today, I report the July 31, 2014 decision that Ocean County Assignment Judge handed down in Paff v. Ocean County Prosecutor's Office, Docket No. OCN-L-1645-14, which I've placed on-line here.

Briefly, this case involves disclosure of a police dash-cam video of a police officer allegedly siccing a police dog on a member of the public. The Tuckerton Police officer in control of the dog, Justin Cherry, has been charged with official misconduct and aggravated assault as a result of the incident.

Judge Grasso scolded the Prosecutor's office for not being fully candid in its response to my request.  In his opinion, the judge wrote:
OPRA contemplates a process whereby the custodian communicates with the requestor so that the requestor can intelligently decide whether to further pursue his or her documents request. Here, the Prosecutor’s Office waited until the return date to advise Paff that the video in question was not a surveillance video, as Paff assumed it was in his submissions, but instead a police dash cam video. It was the Prosecutor’s Office’s responsibility to apprise Paff of information that might help him decide whether to litigate the matter or to abandon it well in advance of the return date. In light of the Prosecutor’s Office’s failure to carry its statutory burden, the court finds that the Prosecutor’s Office improperly denied Paff access to the video.
The judge went on to rule that I am the prevailing party, entitling my attorney, Richard Gutman of Montclair, to be paid his attorney's fees by the Prosecutor's office.

Still, Judge Grasso elected to give the prosecutor another chance to prove that the video recording is exempt as a criminal investigatory record.  He has continued the case for thirty days to allow both lawyers to "submit supplemental briefs, certifications, and evidence on whether the police dash cam video constitutes a criminal investigatory record under N.J.S.A. 47:1A-1.1’s two- pronged analysis."  Judge Grasso also ordered the prosecutor to supply him with a copy of the video for the court's in camera review.

Wednesday, July 30, 2014

OPRA suit seeks Perth Amboy police records regarding alleged teacher-on-teacher sexual assault

On Wednesday, August 27, 2014 at 9 a.m., the Hon. Travis L . Francis, A.J.S.C. will hear argument in my Open Public Records Act (OPRA) case against the City of Perth Amboy (Middlesex County).  My civil complaint, exhibits and brief, filed by Walter M. Luers, Esq. of Clinton, are are on-line here.

I am seeking records regarding a lawsuit that a Perth Amboy teacher filed against the school district for mishandling her report that she was sexually assaulted in her classroom by another teacher.  That lawsuit, which settled for $199,000, is discussed on my blog here.

I submitted an OPRA request to Perth Amboy City Clerk Elaine M. Jasko for the police incident reports regarding the alleged assault as well as any criminal complaints that were filed against the alleged perpetrator.  I made this request to learn when, if ever, the alleged sexual assault was reported to the Perth Amboy Police Department and what, if anything, the Police Department did about it.

Perth Amboy denied my request for the police reports claiming they were "criminal investigatory records." As for the complaints, police officials claimed that they "do not fall under OPRA.  They have to be requested through the courts."  When I challenged that assertion, the Police Chief conceded that no criminal complaints existed.

Our brief to Judge Francis cites N.J.S.A. 47:1A-3, which contains an exception to the "criminal investigatory records" exemption.  Under OPRA, "where a crime has been reported but no arrest yet made, information as to the type of crime, time, location and type of weapon, if any" shall be available to the public "within 24 hours or as soon as practicable."  So, if the alleged sexual assault was reported to the police, the public is at least entitled to know that a report was made.  This knowledge might cause Perth Amboy residents and taxpayers to ask questions such as: Why did the Perth Amboy school district pay $199,000 when the police, who apparently investigated the alleged sexual assault, did not find enough evidence to warrant filing a criminal complaint?

Our brief also cites the common law right of access which, apart from OPRA, requires disclosure of records when the public's interest in disclosure exceeds the government's need for confidentiality.  Here, the teacher's allegations were never tried before a jury, so we really don't know whether or not they're true.  All we know is that the school board paid the teacher a substantial sum of money and inserted a confidentiality clause that prevents both the teacher and Board from talking about the settlement.  But, as Mr. Luers writes in our brief
the public, including both the taxpayers in Perth Amboy and the taxpayers of New Jersey deserve additional details about this incident (beyond mere allegations) so that they can take action, such as making additional OPRA requests; attending Perth Amboy Board of Education meetings and making comments on the results of the litigation; running for office or supporting others who run for office based on the results of the LAD litigation; questioning the Board's practices regarding reports of criminal activity; and other actions.
In its response to my lawsuit, Perth Amboy proffered a certification by Police Lieutenant Denise Sosulski that conceded that the City does possess "one (1) incident report dated February 24, 2010 regarding an assault that allegedly took place at 8:30 a.m. on February 22, 2010 at the Wilentz School."  Sosulski goes on to state that after the initial report was taken, the matter was transferred over to the Middlesex County Prosecutor's Office and that the Perth Amboy Police had no further involvement in the matter. 

Why didn't Perth Amboy simply tell me this at the outset?  Had the City done so, I would have directed another OPRA request to the Prosecutor's office.  And, if the police report is as innocuous as Sosulski implies, why didn't Perth Amboy just give it to me in recognition of my right, at least under the common law right of access, to disclosure?  Had Perth Amboy not been so stingy with information about this matter, this lawsuit would have probably been avoided.