Wednesday, February 26, 2014

Supremes decline to hear appeal of OPRA suit against private prison company.

On February 21, 2014, the New Jersey Supreme Court denied my petition for certification to overturn an Appellate Division ruling holding that a private company that contracts with New Jersey to provide prison is not subject to the Open Public Records Act (OPRA).  The denial of the petition is on-line here and background information on this case is on-line here.





Monday, February 24, 2014

Bills would make Port Authority subject to FOIA and OPRA

Update: A better bill has been introduced in the New York Legislature.  It is numbered A08785 and states that "the state law with the greatest rights of access shall be deemed to apply where laws conflict." 
Legislation has been introduced in both New Jersey and New York that seek to make the Port Authority of New York and Jersey subject to both New Jersey's Open Public Records Act (OPRA) and New York's Freedom of Information Act (FOIA).  The problems with the Port Authority not being subject to FOIA and OPRA is detailed in my blog posting here.

The New York bills, S06593 and A08841, are available on-line here.

The New Jersey bills, S312 and A1095, are available on-line here.


Friday, February 21, 2014

OPRA Case: Paff v. New Jersey Department of Environmental Protection (Mercer)

On April 16, 2016, at 2 p.m., Mercer County Assignment Judge Mary C. Jacobson will hear my Open Public Records Act case against the New Jersey Department of Environmental Protection, Docket No. MER-L-303-14.  The hearing will be held at the Mercer County Courthouse, 400 S. Warren St, 4th Floor, Trenton and I am being represented by Walter M. Luers of Clinton.

Here is the issue in the suit.  The Fish and Game Council is a Division of the New Jersey Department of Environmental Protection.  I requested, pursuant to the Open Public Records Act (OPRA), a roster showing the names of the Council members along with each member's city and county of residence.  The Council's position is that since its members are "volunteers who have responsibility in developing Hunting rules and regulations, compliance, and making policy recommendations to the Governor's Office . . . [t]here is a high possibility of harassment, from individuals who do not agree with certain policies/regulations or who may have lost their license due to violating the rules."  My position is that disclosure of the Council members' cities and counties of residence is not the type of information that needs to be kept confidential. (Note: I have not requested nor do I seek the actual addresses of the Council members.)  Further, the Council's position conflicts with the Governor's practice of identifying the Council members' cities and counties of residences in that office's press releases.  Walter M. Luers of Clinton is representing me in this matter. Case documents are on-line here.

This hearing date and hour is subject to change.  If you plan to attend, please call the court offices at 609-571-4499 the day prior to confirm that the hearing date and hour have not changed.

Wednesday, February 19, 2014

Better OPMA compliance promised by Spotswood school board

On January 28, 2014, I asked the Spotwood Board of Education to better comply with the Open Public Meetings Act.  See my blog entry here.

Today, I received the following response from the Board's attorney.
From:    David Rubin rubinlaw@att.net
to:         John Paff paff@pobox.com
cc:        Scott Rocco ,
             and ksanford@spotswood.k12.nj.us

Date:    Wed, Feb 19, 2014 at 2:44 PM

subject:   Correspondence to Spotswood Board of Education

Dear Mr. Paff:

Your January 28, 2014 e-mail to the Spotswood Board of Education has been referred to me for a response.  I have reviewed your concerns with my client, and have been authorized to advise you as follows.   The Board is committed to honoring its obligations under the Open Public Meetings Law, and will take steps to assure that a resolution is adopted prior to each closed session, stating specific subject matters to be discussed consistent with existing case law on the matter.  The Board will also endeavor to provide somewhat more detail in its private session minutes -- again, consistent with prevailing case law.

Thank you for your bringing your concerns to our attention.

Very truly yours,
David B. Rubin
David B. Rubin, P.C.
44 Bridge St., P.O. Box 4579
Metuchen, NJ  08840
Phone:  (732) 767-0440
Fax:  (732) 321-0344
Email: rubinlaw@att.net
Website:  www.rubinlaw.net

Unpublished trial court OPRA and 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.

City of Wildwood v. Cape May County
Cape May County, Docket No. CPM-L-656-10
Hon. Nelson C. Johnson, J.S.C.
April 21, 2011
Click here for the opinion.

Summary:  City sought return of a video created by its own police department that was in the possession of the County Prosecutor.  The court found that the video was exempt as a criminal investigatory record and that the City's need, under the common law right of access, did not exceed the confidentiality interests of the Prosecutor's office.

Sunday, February 16, 2014

Burlington balks at disclosure of records regarding inmate's death.

Robert Taylor, a 74-year-old homeless man died while an inmate in the Burlington County Jail and I submitted a records request for "any police incident or other report that was issued after [Taylor] was found dead in his cell." 

This rather straightforward request was met by a multi-pronged denial by Joseph Threston, the County's Custodian of Records, which I've placed on-line here.

First, Threston stated that the "County is not in possession of any police report concerning Mr. Taylor's death."  We are apparently supposed to believe that a jail guard, after discovering a dead body in a jail cell, didn't write a report about it.

Next, Threston said that my request was "overly broad and unclear." 

Next, he said that even if a responsive report did exist, it would be exempt from disclosure on three separate legal grounds: a) pertaining to an investigation in progress, b) advisory, consultative and deliberative and c) violating Mr. Taylor's "reasonable expectation of privacy."

Finally, Threston "reserve[d] the right to raise any other ground or basis for denial that is not raised in this response."  In other words, if there are some other reasons for justifying nondisclosure that Threston won't think about until later, he can rely on those too.

My supplemental request is on-line here which, hopefully, will produce a more candid and meaningful response.

Saturday, February 15, 2014

January 28, 2014 Meeting of Mount Arlington Borough Council

In this public meeting audio (on You Tube here), Councilwoman Paula Danchuk says that she contacted the Morris County Prosecutor's Office with a concern about whether a topic the Council discussed in closed session was validly discussed outside of public view. 

Danchuk's decision to contact the Prosecutor's Office resulted in deal being offered to her (go to time stamp 08:15 of the recording) that the Council would decide to not pursue ethics charges against her for an unrelated matter if she would agree to "stop her nit-picking."

Danchuk asserts that the offer is evidence of "bullying" and the other disagree.  Danchuk also asserts that she's not guilty of any unethical conduct.  The other speakers say that she acted unethically, but that they have a problem spending $10,000 of taxpayers' money for legal bills to prove that she committed unethical conduct.  They also chide her for accusing the rest of the Council of bullying her.


Tuesday, February 11, 2014

Meetings Act compliance sought for Penns Grove-Carneys Point Regional school board

February 12, 2014

William J. Brennan, First Assistant
Salem County Prosecutor's Office
87 Market Street
Salem, NJ 08079
via e-mail only to william.brennan@salemcountynj.gov

Dear Mr. Brennan:

On behalf of the New Jersey Libertarian Party's Open Government Advocacy Project, I wish to report some issues I have with whether the manner in which the Penns Grove-Carneys Point Regional Board of Education authorizes and records minutes of its nonpublic (i.e. closed or executive) meetings comports with the Senator Byron M. Baer Open Public Meetings Act.

Today I received copies of some recent Board non-public meeting minutes and authorizing resolutions and have put them on the Internet here. I have several concerns regarding these resolutions and minutes.  Chief among them are:
a) the Board appears to use the same, general, boiler-plate language to authorize each of its closed sessions (see pages 7, 11 and 17 of the PDF at the above link.)  The language describes the topics in a such a general way (i.e. "matters of personal confidentiality rights, including but not limited to, staff and/or student discipline matters [and] matters which, if publicly disclosed, would constitute an unwarranted invasion of individual privacy") that the public has no real sense of what topics are discussed.

Compare the Board's resolution language to that considered by the Supreme Court in McGovern v. Rutgers, 211 N.J. 94, 111 (2012).  In McGovern, Rutgers' resolution informed the public that "matters involving contract negotiations for sports marketing, naming rights of athletics facilities and stadium construction; employment of personnel and terms and conditions of employment; and pending litigation, investigations, and matters falling within the attorney-client privilege with respect to these subjects” would be discussed. 

Unlike the public who observed the Penns Grove-Carneys Point Board meetings, those attending the Rutgers Board meetings would at least know that specific topics, such as "sport marketing" and "naming rights" of facilities would be discussed.  The Penns Grove-Carneys Point Board, in order to comply with N.J.S.A. 10:4-13, should include a similar amount of detail in its N.J.S.A. 10:4-13 resolutions.

b) the Board's December 2, 2013 closed meeting agenda includes a "Board Procedures/Open Forum" at its  (see page 20 of the PDF at the above link) and that topic heading was followed by a redacted sentence beginning with "Ms. Cobina informed the Board [REDACTED]."

The exceptions to the Meetings Act's mandate that openness and transparency should be the norm and that the Act should be strictly construed against closure of meetings calls into question the legitimacy of a "Board Procedures/Open Forum" item on the closed session agenda where, presumably, all manner of topics can be discussed.

c) At 8:20 p.m. on November 18, 2013 (see page 15 of the PDF at the above link), four members (i.e. a quorum) of the Board members present "left the [closed] meeting" to have "private conversations."  The practice of nesting private conversations within an executive session should be labeled improper by your office because this practice allows Board members to discuss public business without having their comments captured in the minutes.

d) There are several other topics of discussion that don't appear to fall within any of the N.J.S.A. 10:4-12(b) exceptions.  Among them are:
1) On page 9, a discussion related to "new hiring guidelines."  (If the "personnel exception" (N.J.S.A. 10:4-12(b)(8)) is the rationale, it doesn't appear that specific employees were discussed, but that a general matter of policy was discussed.)

2) On page 13, requests to attend a New Orleans conference and the Comprehensive Maintenance Plan were privately discussed. I don't see why such a discussion could not have been held in public.
N.J.S.A. 10:4-17 authorizes your office to assess civil penalties against officials who "knowingly violate" the Meetings Act.  I have no evidence that any of the conduct about which I complain was done "knowingly," but some county prosecutors have issued guidelines and recommendations to help public bodies within their jurisdictions better comply with the Meetings Act's provisions.  See, e.g. the Gloucester County Prosecutor's action here

Would you please, after reviewing the matters raised in this letter, reach out to the Penns Grove-Carneys Point Board with some advice on how they can better comply with the Meetings Act.

Thank you for your attention to this matter.

Very truly yours,

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

cc. Penns Grove - Carneys Point Regional Board members
via e-mail to bferguson@pennsgrove.k12.nj.us

Saturday, February 8, 2014

Somerset County's further defense of its executive session discussions

Update: Somerset County lawyer apologizes for e-mail.

I received this today from Somerset County Council William T. Cooper, III.
-----------------------
John:

I apologize as that email was not intended to be forwarded to you. It was unnecessary and as you point out unfair.

Please also be advised that we were planning on placing your  correspondence  of 1/31/14 on the 2/11/14 executive meeting for discussion. At this point that letter, my response, as well as your counter response will be provided to the Board for their consideration.

Very Truly Yours

Bill  

Somerset County Counsel William T. Cooper, III took exception to my criticism of the Somerset County Freeholder's executive sessions.  (For background click here.)

Here is Mr. Cooper's correspondence followed by my response:
From: cooper@co.somerset.nj.us

Feb 7, 2014

I take solace in the fact he is only attacking the e cigarets. One point he fails to grasp is the impact one employee using an ecig has on another. By focusing on the user he loses sight of all the other employees negatively impacted.

My mistake was believing Mr Paff wanted an honest discourse on the OPMA. What he really wanted fodder for his web site.

My final note is this; am I crazy or was it ironic that he asked Kathy to forward it to all five freeholders?

Bill
My Response
February 8, 2014

Dear Bill:

The personnel exception, which is the exception you cited in your letter justifying the e-cig conversation, allows private discussion concerning specific employees.  In other words, a Freeholder discussion about: "Employee John Doe refused to turn off his e-cig after being asked to by his supervisor" would be permissibly discussed in private session because it deals with a specific employee--John Doe.  This is different than a general policy discussion about whether e-cigarettes should be allowed in the work place.

Also, I'm disappointed that you had to resort to an ad hominem attack on me--that I do not want "an honest discourse on the OPMA" but I "really wanted fodder for [my] web site."  My web site, actually a blog, is intended to educate the public, as well as government agencies, about the OPMA and OPRA.  And, yes, Somerset County's non-compliance with OPMA is of interest to my blog's readers.

And, I'm always interested in an honest exchange about OPMA or OPRA.  If an honest exchange is what you really want, why don't we start by you articulating how the e-cig discussion related to a "specific prospective public officer or employee or current public officer or employee" within the meaning of N.J.S.A. 10:4-12(b)(8)?

Finally, I could have challenged all of the points in your January 31, 2014 letter, but chose only the e-cig discussion in the interest of time and because it was your most glaring error.

As another example, you justify the November 26, 2013 discussion about the Green Brook levee as being "pending or anticipated litigation" under N.J.S.A. 10:4-12(b)(7).  The private discussion at issue, as recorded in the minutes, follows:
GREEN BROOK FLOOD CONTROL PROJECT LEVEE — PUBLIC ACCESS
Bill Cooper advised the Board on this issue. It was noted that the levee in Bound Brook was not designed for pedestrian use. It was further noted that the public was accessing the levee and using it as a pathway. The Board discussed ways to curb this use and protect the County's interest in this matter.
In sum, the county discussed curbing pedestrian usage of the levee so to keep it from getting sued if someone fell.  But, the "pending or anticipated litigation" exception is directed toward litigation, not risk management:

"To invoke this exception, the public body must either be or expect to become a party to the litigation it wishes to discuss and the discussion must be limited to the the pending or anticipated litigation."
Attorney General's Formal Opinion 30-1976, 100 N.J.L.J. 31.

Since there is no litigation, either pending or reasonably anticipated, the discussion should have been held in public session.  You can't stretch the exception so far as to cover a risk management discussion, because the Freeholders must construe the exception strictly against closure and liberally in favor of openness.  Lakewood Citizens for Integrity in Gov't, Inc. v. Lakewood Tp. Comm., 306 N.J. Super. 500, 505 (Law Div. 1997).

Very truly yours,

John Paff



New OPRA lawsuit: Paff v. Clifton Board of Education

I have filed a new Open Public Records Act (OPRA) case.  The case is Paff v. Clifton Board of Education, Docket No. PAS-L-349-14 and Walter M. Luers of Clinton is my attorney.  The lawsuit and related documents are on-line here.

On November 18, 2013, I requested a copy of the minutes from the school board's June 19, 2013 executive session.  In her December 12, 2013 response, Business Administrator Karen L. Perkins denied my request, stating that the minutes were "advisory, consultative or deliberative materials [because they] have not been approved by the Clifton Board of Education as of the date of your request."  Perkins letter referenced the Government Records Council's 2006 decision in Parave-Fogg v. Lower Alloways Creek Township, GRC Complaint No. 2006-51, which, incorrectly in my view, supports Perkins' decision. 

We argue that under OPRA, the Council's decision in Parave-Fogg case has no value as a precedent and that the Open Public Meetings Act (OPMA), which is not enforced by the Government Records Council, mandates that all meeting minutes, open and closed, be made promptly available to the public, even though redaction of closed meeting minutes may be necessary.  In sum, we argue that the Board "should not be permitted to bar access to executive session meeting minutes under OPRA when they have failed to comply with their duty under OPMA to make those minutes available to the public 'promptly.'"

Friday, February 7, 2014

Somerset County defends its executive session discussions.

Update:  In his February 19, 2014 letter, Mr. Cooper thanked me for my correspondence and promised that it will be "kept in mind" during future Freeholder executive sessions.
 In his February 7, 2014 letter, Somerset County Counsel William T. Cooper III defended the Somerset County Freeholder Board's decisions to conduct seven matters in nonpublic (i.e. closed or executive) session instead of publicly.  Cooper's letter is on-line here and the minutes of the executive meeting in question are on-line here.  (My letter of complaint about the executive session discussions is on-line here.)

With all due respect to Mr. Cooper, I believe that his position is flawed. 

As just one example, the minutes of the January 14, 2014 closed meeting state:
SMOKING POLICY

Mike Amorosa addressed concerns and complaints received about employees utilizing e-cigarettes indoors. The Board endorsed the inclusion of e-cigarettes to the policy.
Mr. Cooper defends the Board's private discussion of this matter by relying on N.J.S.A. 10:4-12(b)(8), which states:

Private session can be used to discuss "[a]ny matter involving the employment, appointment, termination of employment, terms and conditions of employment, evaluation of the performance of, promotion or disciplining of any specific prospective public officer or employee or current public officer or employee employed or appointed by the public body, unless all the individual employees or appointees whose rights could be adversely affected request in writing that such matter or matters be discussed at a public meeting."  (Emphasis supplied.)

As the emphasized text shows, this exception to the general rule of discussing matters in public allows private discussion of specific, individual employees.  It does not, however, allow policy matters related to employees in general to be discussed privately.

Support for my interpretation of the law (and against Mr. Cooper's) can be found in the 2009 Appellate Division case of Burnett v. Gloucester County Board of Chosen Freeholders, 409 N.J. Super. 219 (App. Div. 2009). 

In the Burnett case, the trial judge had found that the matters the Gloucester Freeholders discussed on December 20, 2006, February 7, 2007 and March 7, 2007 were exempt because they involved “personnel matters.” 409 N.J. Super at 238.  The December 20, 2006 discussion dealt with "presenting a State ethics training seminar for department heads" and awarding a bonus to a lawyer who represented Gloucester County in a public records lawsuit.  The February 27, 2007 involved the "need to pay Harold Crass [ ] [$14,000] for legal work done relative to the matter at the Pitman Golf Course.”  At its March 7, 2007, the Board discussed "the proposed replacement member of the Board of Trustees for Gloucester County Community College, who would complete the term of a resigning member." Id at 229-30.

Citing an earlier New Jersey Supreme Court decision, the Appellate Division found that the Legislature allowed public bodies to discuss personnel matters in private because it "recogniz[ed] the potentially-inhibiting effect of public debate about the qualifications, performance, merit, and shortcomings of specific employees.” Id at 239.  In other words, the Legislature believed, and rightly so, that a discussion about, say, a particular employee's battle with alcoholism or constant tardiness, would be difficult, if not impossible, to conduct with the public--perhaps even the employee's family--watching and listening.  Privacy in such discussions is needed, the Legislature found, to foster "free and uninhibited discussion about matters relating to the hiring, firing, performance, compensation, and discipline of public employees.”

Against this standard, the Appellate Division judges wrote that they were "hard pressed" to agree with the trial judge on the applicability of the "personnel exception" to these three meetings.  Wrote the judges:
Two of the three sessions involved awarding a bonus or other remuneration to outside counsel. The remaining item arguably involves discussion on a possible appointment, which may fall within the exception, however, without more information it is unclear. Nevertheless, in respect of other sessions plaintiff focuses on, it appears the Board overstates the scope of the allowed exclusion and its position is transparently incorrect because the closed sessions adopted policies affecting county employees generally or the creation of new county positions, and did not relate to discussions regarding a specific employee. Neither of these areas are excepted. (Emphasis supplied). Id at 239.
As shown, the "personnel exception" is intended to allow public officials to meet in private so that observation by the public does not dissuade from speaking frankly about a particular employee's shortcomings.  The exception is not intended to cover policy decisions that may affect employees, such as whether or not they should be allowed to smoke electronic cigarettes in government buildings.

Mount Arlington releases seven sets of executive session minutes

On February 4, 2014, the Mount Arlington Borough (Morris County) Council approved seven sets of nonpublic (closed or executive) minutes dating back to January 15, 2013.  For those who are interested, I have placed those minutes on-line here, as the Borough does not put executive session minutes on its own website here. Rather, the Council only puts its public meeting minutes on-line.

Tuesday, February 4, 2014

Fieldsboro Councilwoman fined for ethics violation

In a November 21, 2012 letter, the New Jersey Local Finance Board fined a Fieldsboro Borough (Burlington County) Council member $100 for violating the New Jersey Local Government Ethics Law.  In the letter, which is on-line here, the Board found that Councilwoman Amy Telford violated the ethics law by "serving in two incompatible offices by simultaneously serving as a member of the Borough Council and accepting the salary as the Planning Board Secretary in the Borough of Fieldsboro."  In addition to the fine, the Local Finance Board required Telford to "relinquish one of those positions immediately."

Hammonton Mayor Cleared of Ethics Charges

In a December 9, 2013 letter, the New Jersey Local Finance Board cleared Hammonton (Atlantic County) Mayor Steven DiDonato of violating the Local Government Ethics Law.  According to the letter, which is on-line here, DiDonato was investigated for speaking "in opposition at a Zoning Board meeting to an application seeking a use variance on a building that [his] brother allegedly had an open offer to purchase." 

The ethics board found that DiDonato's "remarks occurred during the public comment period of the May 26, 2011 Zoning Board meeting and that [he] took no official action as Mayor when you spoke before the Zoning Board, regarding [his] concerns about the intended use of the building and therefore did not act in [his] official capacity on a matter where [he] had a direct or indirect financial or personal involvement that might reasonably be expected to impair [his] objectivity or independence of judgment."

Monday, February 3, 2014

Open Public Records Act and Meetings Act bills in New Jersey Legislature

Today, I searched for "Open Public" and "Public Records" and "Public Meetings" and other related searches in the "Search by Keyword in Synopsis" field at the Legislature's site.

Following are the bills that the search engine returned:

S781     Makes various changes to law addressing meetings of public bodies to provide public with greater access to meetings and information about meetings. (Last Session Bill Number:  S2511 A3713)

S782     Makes certain access changes to Open Public records act; establishes State public finance website and creates program for development of local websites; makes appropriation.  (Last Session Bill Number: S2512   (1R) A3712 )

A487     Exempts municipal clerk from penalties for Open Public Records Act violations under certain circumstances. (Last Session Bill Number: A906   S1612)

A523     Requires municipal governing bodies and boards of education to provide sufficient time for all requested public comment at Open Public meetings. (Last Session Bill Number: A160)

A1095  and S312  Subjects Port Authority of New York and New Jersey to New York's Freedom of Information Law and New Jersey's Open Public Records Act. (Last Session Bill Number: A3400   S2292)

A1375  and S388  Exempts traffic summons records from public access under State's Open Public records law. (  Last Session Bill Number: A4561   S3056)

A2064     Exempts mugshots of arrestees who have not been convicted of the underlying offense from State's Open Public records law. (Last Session Bill Number: A3906   (1R) S3046)

A2177     Requires public release of photographs of arrestees under State's Open Public records law. (Last Session Bill Number: A4083)

A2373     Omits State Police detectives from Open Public Records Act. (Last Session Bill Number: A420)  

A2397     Makes homeowners' association in which developer's control of executive board has not been surrendered a public body under "Senator Byron M. Baer Open Public Meetings Act." (Last Session Bill Number: A3373)  

S312     Subjects Port Authority of New York and New Jersey to New York's Freedom of Information Law and New Jersey's Open Public Records Act.  (Last Session Bill Number: S2292   A3400)


A155     Requires access to law enforcement guidelines for processing firearms permit applications upon Public Records request. (Last Session Bill Number: A4425)

A838     Provides that certain personal identifying information may be redacted from certain Public Records in certain circumstances. (Last Session Bill Number: A3318   (1R))
   
A841     Provides that certain personal identifying information may be redacted from certain Public Records in certain circumstances. (Last Session Bill Number: A3539)

A1645 and S825 Includes e-mail addresses in list of confidential items to be redacted from Public Records under OPRA (Last Session Bill Number: A1280   S2487)

S100     Protects home addresses of law enforcement officers from being released by governmental entities.  (Last Session Bill Number: S2827   A4163)

A1676 and S1524  Provides that crime victims do not have to pay fees to obtain government records and that requests for records are not public information. (Last Session Bill Number: A3937   S2790 )

A153 and S996   Concerns procedures for public comment about matters before municipal planning and zoning boards. (Last Session Bill Number: S2823  A4327)