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.

Tuesday, July 29, 2014

Chatham sued under OPRA for denying settlement agreements and redacting Tort Claims Notice

On Friday, August 29, 2014 at 1:45 p.m., the Hon. Thomas L. Weisenbeck, A.J.S.C. will hear argument in my Open Public Records Act (OPRA) case against the Township of Chatham (Morris County).  My civil complaint, exhibits and brief, filed by Walter M. Luers, Esq. of Clinton, are are on-line here.

At issue is Chatham Township's claim that the settlement agreements between the Township and Township police officer Michael Giannone and police sergeant Ed Gibney are exempt as "personnel records."  The Township also denied access to four pages of the Tort Claims Notice that Giannone filed with the Township.

In 2010, the New Jersey Supreme Court make it clear that settlement agreements that resolve civil lawsuits against New Jersey public agencies are public records.  See Asbury Park Press and John Paff v. Monmouth County.

In the present case, however, neither Giannone nor Gibney filed a lawsuit against Chatham.  Rather, they both filed Notices of Tort Claim, which put the Township on notice of their intent to sue, but both settled their matters with the Township prior to any lawsuit needing to be filed.

Gibney's Notice of Tort Claim, which was disclosed in response to my OPRA request, stated that Gibney's suspension from duty as "procedurally improper" and that the Township failed to provide him "'reasonable accommodations' for having a legally recognized disability for which the police department was on notice."  On February 18, 2014, Chatham passed Resolution 2014-064 which settled Gibney's claim without disclosing the terms of settlement.

Giannone's Notice of Tort Claim, while heavily redacted, disclosed that he allegedly "endured retaliation because he is the PBA President."  Ironically, Giannone also claimed that Chatham "refused to acknowledge and process two Open Public Records Act (OPRA) requests that [he] submitted nearly two months ago." On September 12, 2013, the Chatham Township Committee passed Resolution 2013-181 which settled Giannone's claim without disclosing the terms of settlement.

Friday, July 25, 2014

OPRA win in Somerset County

On July 23, 2014, Vicinage 13 Assignment Judge Yolanda Ciccone ordered the Bound Brook Board of Education (Somerset County) to disclose an investigative report regarding an elementary school teacher's complaint that she was harassed, bullied and discriminated against by her supervisor and other District employees.  She also ordered the Board to turn over a letter that the teacher's lawyer sent to the Board's lawyer.  Ciccone ruled, however, that the Board shall redact the names of certain parties from both documents "due to privacy issues."  Ciccone's order is on-line here.

The teacher, Shari Duddy, filed a civil complaint against the Board in August 2011 which resulted in a $250,000 settlement in January of 2014. Details on the discrimination lawsuit are on-line here.

On February 10, 2014, I submitted my Open Public Records Act (OPRA) request for the investigative report and the letter.  The Board denied my request on the basis that the records sought constitute "information generated by or on behalf of public employers or public employees in connection with any sexual harassment complaint filed with a public employer or with any grievance filed by or against an individual or in connection with collective negotiations, including documents and statements of strategy or negotiating position" pursuant to N.J.S.A. 47:1A-1.1.

I was represented in the lawsuit by Walter M. Luers of Clinton.  The lawsuit, order to show cause and other case documents are on-line here.

The Board has ten days to release the records and, upon receipt, I will update this blog entry to provide a link to those records.

Tuesday, July 22, 2014

Hearing before Judge Johnson in Paff v. Cape May Prosecutor

Attorney Richard Gutman of Montclair and I appeared before Judge Nelson C. Johnson at 11 a.m. on July 22, 2014 in Atlantic City to argue the Open Public Record Act (OPRA) and common law right of access case of Paff v. Cape May County Prosecutor.  This is the case where I am seeking "Brady letters" that may have been issued regarding three Wildwood Crest police officials.  Background on the case and links to the filed case documents are on-line here.

Our main argument was that Cape May hadn't submitted any evidence, in the form of affidavits or certifications, demonstrating that the records we sought were not subject to disclosure.  Under OPRA, the burden of proof is on the government to show that a record is not subject to disclosure.

Our secondary argument was that even if the court accepted Cape May's brief as "evidence," it was so tentatively and uncertainly written that it didn't adequately explain why access to the documents should be denied.

Judge Johnson agreed with our characterization of the County's responsive brief. He even remarked that he was astonished at how mealy-mouthed the response was and used following sentence from the brief--full of "mays" and "mights"--as an example of its indecisiveness:
Similarly, any such responsive documents which may exist might be the result of an investigation of matters by the CMCPO for a determination of criminal wrongdoing and may include the CMCPO's findings and analysis thereof.
When the County's attorney, James B. Arsenault, presented his argument it became obvious that Prosecutor Taylor wanted him not to reveal much, if anything, about the nature of the withheld documents.  He remarked that "law enforcement records need to be held close to the vest."

Mr. Arsenault then produced a one-page document which he referred to as a "Vaughn Index" (on-line here) and gave it to Judge Johnson with a copy to Mr. Gutman.  Typically, such documents are submitted to the court and one's adversary well prior to the hearing so that everyone has time to review them.  This is the first time I've ever seen such a document being presented during the hearing.

Cape May's "Vaughn Index" indicated that the there were eight pages of responsive documents consisting of four letters written by the Prosecutor's Office to Wildwood Crest Mayor Carl Groon.  The letters concerned "Investigation of Captain Dave Mayer" and "Investigation of Lieutenant Michael Hawthorne."  The "Vaughn Index" did not describe the nature or content of the letters.  Judge Johnson wondered aloud whether the withheld letters were even responsive to my request for "Brady letters."

Mr. Arsenault then produced a sealed envelope containing unredacted copies of the four letters and requested Judge Johnson to privately read them (i.e. review the in camera) and then make a decision on whether or not they should be released to me.  Mr. Gutman argued that giving the judge the letters for his private review without describing the letters' nature and content to me was unfair because it prevented me from being able to effectively argue why the letters should not be suppressed.

Judge Johnson said that while he agreed with Mr. Gutman, he still felt that he needed to read the letters privately to determine whether they should be disclosed to me in full or redacted form.  He promised a prompt decision in this case.  Once I receive Judge Johnson's decision, I will post it on this blog.

Friday, July 11, 2014

Township rebuffs attempts to learn how much is being paid to former CFO's consulting company.

Update:  The Township provided a "Certificate of Available Funds" in response to the following OPRA request.  But, the Certificate did not state the amount of the contract, so the public is still in the dark about how much of its money is being spent.
A Township CFO resigns to take a county job.  Then the Township contracts with a firm that is at least partially owned by its former CFO to provide "day-by-day financial consulting services."  Then, the Township stonewalls the media's attempt to find out how much the consulting company is going to be paid under the newly minted contract. Only in New Jersey.

Following is my OPRA request to the Township to figure out how much tax money the former CFO's consulting firm is going to receive.
July 11, 2014

Yancy Wazirmas, Clerk
Parsippany-Troy Hills Township Clerk
1001 Parsippany Blvd.
Parsippany, NJ 07054
Via e-mail only to

Dear Mr. Wazirmas:

Please consider this letter my request for government records pursuant to the Open Public Records Act and the common law right of access.  The request for records is at the bottom of this letter.


The July 9, 2014 Parsippany Focus article "Kovalick’s company hired to perform financial consulting services" indicates that after Township Chief Financial Officer Joseph A. Kovalick, Jr. resigned from his position, he took a job with Morris County.  Then, according to the article, the Township Council passed a resolution to award a no-bid contract to EPIC Solutions, LLC "to provide day-by-day financial consulting services as directed by the municipality’s [new] Chief Financial Officer."  The punch line is that Kovalick is "one of the principals of Epic Solutions, LLC.

The article goes on to relate that the Township refuses to release salient details, such as "how many hours the consultant will be working in Parsippany [or] at what rate the consultant will be paid."  According to the article, the Focus sought a copy of the contract but was told that it "hasn’t been signed by the Administration (meaning Mayor James Barberio) and given to the Clerk’s Office yet.  That could take up to 30 days."

On July 10, 2014, I requested "immediate access" to the contract and you responded today:

We are in receipt of your OPRA request for "the Professional Service Agreement with EPIC Solutions, LLC."  The document you are seeking is not in the possession of the Custodian of Records. The resolution adopted by  the Township Council at their meeting on July 8th states: "That the Township Council hereby authorizes execution by the Mayor and witness by the Township Clerk of a professional services agreement with EPIC Solutions, LLC, in a form acceptable to the Township Attorney." Until such time that the completed document is received by this office, it remains as an exemption under N.J.S.A. 47:1A-1.1: "Inter-agency or intra-agency advisory, consultative or deliberative material."
I think that what the Focus and its readers really want to know is the maximum "up to" amount that can be paid to Epic under the contract.  According to N.J.A.C. § 5:30-5.4(a)(1), whenever a contract is pending approval by the governing body:
The chief financial officer or certifying finance officer, as appropriate, charged with the responsibility of maintaining the financial records of the contracting unit shall certify in writing to the governing body the availability or lack thereof of adequate funds for each contract which is pending approval by the governing body. Said certification shall designate specifically the line item appropriation(s) of the official budget to which the contract will be properly charged, ensuring that the same funds shall not be certified as available for more than one pending contract. Said officer shall be solely responsible for the accuracy of the certification.
It appears, therefore, that this written encumbrance certification would disclose the maximum amount that can be disbursed under this contract.

Records Requested:

The certification of fund availability, as required by N.J.A.C. § 5:30-5.4(a)(1), related to the award of the contract to EPIC Solutions, LLC.  Please provide via e-mail.

Very truly yours,

Wednesday, July 2, 2014

Prosecutor: Release of dog bite video could "further inflame" the public, cause witness amnesia and violate the alleged victim's privacy.

As I reported on June 24, 2014 (here), I filed suit on June 10, 2014 seeking public disclosure of a video that allegedly shows a police dog being intentionally sicced on a 57-year-old woman.  The dog's handler, Tuckerton Police Corporal Justin Cherry, was charged with second-degree official misconduct and third-degree aggravated assault in connection with the incident.

On July 2, 2014, the Ocean County Prosecutor's office, in its filed objection (here), claimed that release of the video "will further serve to inflame" members of the public who have already posted "inflammatory comments . . . on the Internet about this case."  On July 7, 2014, My attorney, Richard Gutman, filed a reply which is on-line here.

Samuel Marzarella, who authored the Prosecutor's opposition brief also expressed concern that "if there are other witnesses out there in any prior dog bite cases involving this Officer with information favorable to him, they will certainly be hesitant to come forward in light of an inflammatory video." 

Further, Marzarella believes that disclosure of the video on YouTube would cause witnesses to come down with amnesia. "Along similar lines, persons who are potential witnesses in these cases may be able to view the tape on UTube, [sic] Plaintiff’s site or elsewhere – and this has the capacity to influence their recollection of events and testimony, or details that they remember might be deemphasized per the tape."

Finally, Marzarella put into evidence a June 30, 2014 letter from Cornelius W. Daniel, III, a Point Pleasant lawyer representing Wendy H. Tucker--the alleged dog-bite victim--regarding the criminal charges pending against her.  Daniel claims that the video should not be disclosed "because of privacy and other related issues."