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.