Thursday, January 30, 2014

Somerset Freeholders questioned on closed meeting practice

January 31, 2014

Hon. Patrick Scaglione, Director, and members of the
Somerset County Board of Chosen Freeholders
(via e-mail only to Quick@co.somerset.nj.us)

Dear Director Scaglione and Board members:

In response to my Open Public Records Act (OPRA) request, I obtained the minutes of five of the Board's recent nonpublic (executive or closed) meetings.  For your ready reference, I have placed those minutes on-line here.

Several of the matter discussed do not appears to fall within any of the N.J.S.A. 10:4-12(b) exceptions.  As you are aware, the Open Public Meetings Act requires all Board discussions to be held in public unless one or more of the N.J.S.A. 10:4-12(b) exceptions, construed strictly against closure, apply.  Following is a list of some of the topics that I believe could have been discussed with the public in attendance.

For each, I ask that you either agree that the Board ought to have discussed the topic in public or provide a justification as to why the topic was discussed in private.
  • Police Academy (10/22/13)
  • Green Brook Flood Control (11/26/13)
  • Solar Renewable Energy Credit Market (12/10/13)
  • 2014 Somerset Patriots Fireworks schedule (12/10/13)
  • Transportation Services (12/10/13)
  • Hiring process for for Sheriff's Officers (12/10/13) (Note: N.J.S.A. 10:4-12(b)(8) allows private discussions regarding specific employees.  This appears to be a discussion about cost concerns associated with hiring delays.)
  • E-cigarette smoking policy (01/14/14).
Thank you very much for your attention to this matter.  I look forward to your response.

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

Wednesday, January 29, 2014

Local Finance Board Reconsiders: Decides to make public meeting minutes public

In an earlier post (on-line here), I wrote about my December 30, 2013 lawsuit against the New Jersey Local Finance Board (LFB).  With Attorney Walter Luers' assistance, I sued the LFB because it had refused to provide me with unredacted copies of its public meeting minutes.

Yesterday, a New Jersey Deputy Attorney General decided to not contest the suit and provide the minutes in unredacted form.  The newly released, unredacted minutes are on-line here.  I've placed the same pages from the redacted version of the minutes here so that readers can compare them side by side.  Given the nature of the redacted material, it is difficult to understand why the LFB decided to apply the redactions in the first place.

The lawsuit is now all but over.  The only remaining issue is a determination on the amount of attorney fees the taxpayers will have to pay Mr. Luers for bringing the suit.

Tuesday, January 28, 2014

Spotswood school board asked to improve its executive session minutes

Update:  The school board's attorney responded on February 19, 2014.  Click here.
 January 29, 2014

Donna Faulkenberry, President and members of the
Spotswood Board of Education
105 Summerhill Road
Spotswood, NJ  08884
(via e-mail only to Board Secretary Mark Resnick at mresnick@spotswood.k12.nj.us)

Dear President Faulkenberry:

While I appreciate the fact that the Board posts its nonpublic (i.e. closed or executive session) minutes on its web site (most public bodies do not), I think that the minutes themselves fall far short of the "reasonably comprehensible" standard required by N.J.S.A. 10:4-14.  As an example, please see the Board's April 23, 2013 nonpublic meeting minutes here

First, they are not even labeled "Minutes" but rather as a "Resolution for Executive Session." 

Second, they contain some boilerplate language followed by the only substantive portion which reads, in its entirety, "The Board discussed a contractual matter."  Do you think that the "reasonably comprehensible" language in N.J.S.A. 10:4-14 requires, at a minimum, the identities of the parties to the contract under discussion?

Third, the minutes do not disclose the "time and place" of the meeting or "the members present," as required by the same statute.

Would you please seek the advice of David Rubin, who I believe is the Board's attorney, and discuss the adequacy of these minutes at either your February 4th or February 18th meeting?

I would very much like to receive a response from the Board regarding this matter.

Very truly yours,

John Paff, Chairman
New Jersey Libertarian Party's
Open Government Advocacy Project
P.O. Box 5424
Somerset, NJ  08875
Voice: 732-873-1251
Fax: 908-325-0129
e-mail: paff@pobox.com

cc. David B. Rubin, Esq.
(via e-mail only to rubinlaw@att.net)

Monday, January 27, 2014

Firemen's Association may keep "John Doe's" Relief Payment Confidential

Not every New Jersey court decision is published in the law books. The vast majority of them are considered "unpublished opinions" and "shall not constitute precedent or be binding upon any court." See Court Rule 1:36-3. Even though they're not binding, these unpublished decisions can be persuasive to other courts.

One potentially useful unpublished decision was authored by Union County Superior Court Judge Lisa F. Chrystal on January 15, 2014 in the case of In the Matter of the New Jersey State Firemen's Association To Provide Relief Applications Under The Open Public Records Act, Docket No. UNN-L-2932-13.  That decision and order are on-line here.

This is an unusual case because the records custodian, the New Jersey State Firemen's Association, filed the lawsuit in response to a request it received. Typically, it is the requestor that files the lawsuit.  The requestor, Jeff Carter of Franklin Township, Somerset County, asked for financial records of "John Doe," who is "life member of a volunteer fire company located in Fire District No. 1" in Franklin Township who allegedly "was caught viewing and printing pornographic images . . . on the Fire District's computers" while Doe served as Chairman of the Board of Fire Commissioners. Carter certified that he made his request so that he could "publicize that John Doe was receiving hardship benefits for hardship caused by his own actions."

Judge Chrystal found that under both the Open Public Records Act (OPRA) and the common law right of access, John Doe's interest in privacy outweighed the public's interest in disclosure.  She found that "it is likely that disclosure would impede agency function because it would discourage indigent firemen and their families from applying for much needed aid."

Thursday, January 23, 2014

Monmouth County Prosecutor urged to adopt e-mail usage rules for elected officials

January 23, 2014

Charles Webster, Public Information Officer
Monmouth County Prosecutor's Office
132 Jerseyville Ave
Freehold NJ 07728
via e-mail to cwebster@co.monmouth.nj.us and prosecutor@prosecutor.co.monmouth.nj.us

RE: Request for policy governing official use of e-mail

Dear Mr. Webster:

I write on behalf of the New Jersey Libertarian Party's Open Government Advocacy Project.  I write specifically to you, as Public Information Officer, as you are the only person on the prosecutor's web site who lists his e-mail address publicly.  I ask that you please forward this e-mail to the appropriate person in the Prosecutor's Office.

The Open Government Advocacy Project respectfully requests that the Monmouth County Prosecutor's office issue guidelines to help local and county officials use e-mail communication in a manner that does not violate the Open Public Meetings Act (OPMA).

Other prosecutors in New Jersey, such those from Burlington and Gloucester Counties, have issued guidelines, details of which are available at the blog link here.

The matter that caused me to write to you today is a December 18, 2013 e-mail, on-line here, by Eatontown Borough Councilman Dennis J. Connelly to a quorum of elected officials regarding appointment of a municipal court judge.  You will note that Council President Anthony Talerico, Jr. objected to the e-mail on the basis that it violated the OPMA.  And, you will note that the e-mail to which Mr. Connelly responded, sent by Councilwoman Janice Kroposky on December 18, 2013, 11:34 a.m., also included a quorum of the Borough Council.

While Eatontown's OPMA violation may have been inadvertent, I think that it illustrates the importance of having a formal policy governing use of e-mail by public officials.  Accordingly, we urge you to adopt a policy similar to those adopted in Gloucester and Burlington Counties.

Thank you for your attention to this matter.

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

Wednesday, January 22, 2014

Swedesboro Council improves executive session resolutions.

Back on May 17, 2012, I complained to the Swedesboro Borough Council (Gloucester County) about the manner in which they resolved to exclude the public from their meetings (i.e. go into closed or executive session).

In my letter of complaint, on-line here, I expressed that the resolutions that the Council passed, which said nothing more than "matters involving pending litigation, collective bargaining agreements, matters involving lease or acquisition of real property or investment of public funds, protecting public safety, and/or personnel" would be privately discussed, did not give the public any real sense of the topic that would be discussed. 

I never heard back from Swedesboro, so in early January 2014, I requested the Borough Council's executive session resolutions and minutes from 2013 to see if it improved its procedure.  The response I recently received, on-line here, shows that the Council, although not as precisely as I'd like, has made their executive session resolutions more detailed.

Also, citizens may be interested in the minutes of the executive sessions at the above link, because they reveal issues such as lawsuits involving the Borough, employee discipline for insubordination and suspension of a liquor license. 

Is a volunteer rescue squad subject to OPRA?

The question of whether a volunteer rescue squad is subject to the Open Public Records Act (OPRA) will be decided by Burlington County Assignment Judge Ronald E. Bookbinder in the case of  Brooks v. Tabernacle Rescue Squad, Inc., Docket No. BUR-L-2629-13. Brooks' complaint and letter brief, filed by Clinton attorney Walter M. Luers, are on-line here.

Plaintiff Fran Brooks, a resident of Tabernacle Township, Burlington County, submitted an OPRA request to the squad in September 2013 seeking "reports for drivers of all ambulances and Rescue Truck for the period of January 1, 2013 through July 31, 2013.”  Her request was denied on the grounds that the rescue squad is not a public agency within the meaning of OPRA.

Brooks argues that the rescue squad is subject to OPRA because Tabernacle Township, in 2010, floated a four-million-dollar bond to construct a new facility for Squad. Brooks also notes that Tabernacle's Township Attorney has billed the Township for legal services provided to the rescue squad and that the Township pays $70,000 per year to the rescue squad, accounting for 60% of the squad’s overall revenue. Brooks also argues that the squad performs a "traditional public function" and is thus an “instrumentality” of the Township.

The case will likely be heard in February or March 2014.

Monday, January 20, 2014

OPMA suit filed against Montvale school board

I recently filed an Open Public Meetings Act (OPMA) complaint against the Montvale Board of Education (Bergen County).

The verified complaint in the case, which is captioned Paff v. Montvale Board of Education, Docket No. BER-L-184-14, is on-line here and the exhibits to the complaint are on-line here.

The reason for my lawsuit is the Montvale Board's practice, which I first discovered in March 2012, of passing a single, blanket resolution at its January reorganization meeting that purports to authorize all of the nonpublic (i.e. closed or executive) meetings held during the ensuing year.  I contend that the OPMA requires public bodies to pass a separate resolution prior to each nonpublic meeting that provides the public with an idea of what topics will be privately discussed.

I complained to the Board about this practice in 2012 but Montvale continues its practice to this day.  Accordingly, I need to file a lawsuit to get the Board to respect the public's rights under the OPMA. 

Warren County to appeal "Generator-Gate" ruling.

Update: 05/03/16

The Supreme Court denied the County's Petition for Certification on April 29, 2016.

Update:  12/10/15

The Appellate Division, on December 8, 2015, affirmed Judge O'Connor's ruling.I
--------------------------------------------------
n a January 14, 2014 letter, Warren County Counsel Joseph J. Bell, IV informed Superior Court Judge John H. Pursel that the County Prosecutor's Office is appealing Judge Amy O'Connor's December 18, 2013 order mandating disclosure of certain redacted records regarding misuse of county-owned generators by county employees or officials during Superstorm Sandy.  Production of the documents will be stayed pending resolution of the County's appeal.

Background on the case is on-line here and Bell's letter and the proposed consent order staying execution of Judge O'Connor's order is on-line here.

OPRA lawsuit against the Governor's Office.

On January 13, 2014, Clinton attorney Walter M. Luers filed an Open Public Records Act (OPRA) lawsuit on my behalf against the New Jersey Governor's Office.  The complaint, letter brief and other papers filed in Paff v. Office of the Governor, Docket No. MER-L-66-14 are on-line here.

At issue are the expenses incurred by Governor Christie and his staff during an April 2013 trip to Dallas, Texas for the dedication of the George W. Bush Presidential Library and Museum.  The Governor's office, citing a "reasonable expectation of privacy and security rise exemptions," withheld eight pages of "travel invoices" and two pages of "hotel invoices" and redacted portions of a "Corporate Card Reconciliation Summary," a "Corporate Purchasing Cardmember Report," and a "travel voucher."

The Governor's office did not identify what type of information was withheld, making it impossible to determine whether the redactions were lawful.  My letter to the Governor's office asking for an explanation of the nature of the withheld material was ignored.




Saturday, January 11, 2014

Unpublished trial court common law access 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.

Brewer v. Township of Middletown
Monmouth County, Docket No. MON-L-2848-13
Hon. Lawrence M. Lawson, A.J.S.C.
January 7, 2014
Click here for the opinion.

Summary:  Township, which provides self-insured group health plan to its employees, must, under common law right of access, disclose the names of employees who are enrolled, the type of coverage elected by each employee (i.e. single, family, etc.) and the annual cost of coverage for each type of election.

Saturday, January 4, 2014

Lawsuit challenges redactions to public meeting minutes.

While I frequently encounter instances where government bodies redact nonpublic (i.e. executive or closed) meeting minutes, it is very rare for a public body to redact the minutes of meetings that were held in public.  It seems clear that a governmental body that discusses something in public cannot thereafter excise those discussions from the meeting minutes.

In a December 30, 2013 lawsuit filed by Walter M. Luers, Esq. of Clinton (Paff v. Division of Local Government Services, Docket No. MER-L-000006-14), available on-line here, I am challenging the Local Finance Board's decision to make substantial redactions to its public session minutes.

The matter has been assigned to Mercer County Assignment Judge Mary C. Jacobson and will probably heard within the next two months.

Friday, January 3, 2014

Burlington judge rules that DWI videotape is disclosable under OPRA

Not every New Jersey court decision is published in the law books. The vast majority of them are considered "unpublished opinions" and "shall not constitute precedent or be binding upon any court." See Court Rule 1:36-3. Even though they're not binding, these unpublished decisions can be persuasive to other courts.

One potentially useful unpublished decision was authored by Burlington County Superior Court Judge Ronald E. Bookbinder on February 15, 2011 in the case of Stephen Monson and Virginia Monson v. Township of Mansfield. That decision, along with the summary judgment order and order to pay counsel fees, is on-line here.

The Plaintiffs submitted an Open Public Records Act (OPRA) request for the video recording of a motor vehicle stop and drunk driving arrest of Anita DiMattia that took place in Mansfield Township on May 22, 2010.  According to the court's opinion, DiMattia was an elected public official at the time of her drunk driving arrest. Mansfield Township Clerk Linda Remus denied the request and the Monsons sued. 

Judge Bookbinder first disallowed the Burlington County Prosecutor's Office from participating in the case as an amicus curiae (friend of the court).  Judge Bookbinder found that not only did the Prosecutor's Office not file a motion to be allowed into the case, but that "there is no evidence before the Court that the Burlington County Prosecutor's Office will assist in the
resolution of the instant case."

Second, Judge Bookbinder found that the State's Records Retention and Disposition Schedule required the Mansfield Police Department to retain the video recording.  Therefore, the recording was required by law to be made or maintained, thus removing it from OPRA's criminal investigatory exception.

Third, Judge Bookbinder found that DiMattia had no reasonable expectation of privacy in the video.

A few months later, Judge Bookbinder ordered the Township to pay the Monson's attorney $5,990 for his costs and fees. 

The Monsons were represented by Thomas Cannavo, Esq. and Mansfield Township was represented by Michael Magee, Esq.

A similar ruling was later handed down by Atlantic County Superior Court Judge Carol E. Higbee on March 3, 2011.  See my blog entry on that case here.