Friday, March 21, 2014

New Jersey court system cannot produce a basic financial record.

On July 12, 2011,  Glenn A. Grant, Director of the Administrative Office of the Courts (AOC) issued Directive #03-11 which states in its preamble that:
An open and transparent court system is an integral part of our democratic government. The public has a right of access not only to our courts, but also to court records. Public access to court records allows citizens to understand the system and to judge its effectiveness.
This lofty goal, however, does not actually play out in practice.

On September 6, 2013, New Jersey enacted L.2013, Chapter 158 which established a conditional discharge program for municipal courts that allows first time offenders to avoid prosecution for a large variety of disorderly and petty disorderly offenses if they enter into a supervisory program.  The new law, which became effective on January 4, 2014, requires applicants to pay $75 into a "non-lapsing fund to be known as the 'Municipal Court Diversion Fund,' which shall be administered by the Administrative Office of the Courts."

In order to see whether municipal courts had promptly implemented this new diversionary tool, I submitted a request to the Administrative Office of the Courts (AOC) for a "report that shows the transactions made in the 'Municipal Court Diversion Fund' during the month of February 2014."

Today, I received a response from Steven A. Somogyi of the AOC stating that no such report "is maintained by this office."  Rather, developing such a report "could only be obtained through the creation of a special computer report" which the AOC is not required to produce.  Thus, interested citizens are unable to receive a basic financial report to learn whether and how a legislative enactment is being implemented.

So much for the New Jersey's Judiciary's comittment to open government.

Thursday, March 20, 2014

Lawsuit seeks identities of Hainesport officials on the Township's health insurance plan.

On March 11, 2014, Walter Luers, Esq. filed a lawsuit on my behalf against the Township of Hainesport in Burlington County.  The matter is captioned John Paff v. Hainesport Township and Leo F. Selb, Jr., Docket No. BUR-L-570-14 and is on-line here.  At issue is whether the Township must publicly disclose the names of all public employees and retirees who are enrolled in the Township's health insurance plan. Luers' May 21, 2014 brief in support of a motion for summary judgment is on-line here.

I had previously asked for this information from Hainesport in 2013 and received a five-page denial from Township Attorney Theodore M. Costa, Esq.  After Monmouth County Superior Court Assignment Judge Lawrence M. Lawson's January 7, 2014 decision in Brewer v. Township of Middletown held that identities of such enrollees are disclosable under the common law right of access, I resubmitted my request to Hainesport.  In my January 11, 2014 records request, I directed Hainesport's attention to the Brewer decision and asked that Hainesport be guided by Judge Lawson's reasoning even though the decision was not binding precedent.  In his January 27, 2014 letter of denial, Township Administrator Leo F. Selb, Jr. said that Judge Lawson's decision "is not persuasive" but was "a mere unpublished Law Division case, decided in another County, which means it has no precedential value." 

Thus, I am suing Hainesport hoping that Burlington County Assignment Judge Ronald E. Bookbinder, who has been assigned the case, will adopt Judge Lawson's reasoning.  A success in this case will make it easier for residents of other Burlington County towns to learn the identities of the officials, employees and retirees who are receiving publicly funded health insurance coverage.

Tuesday, March 18, 2014

Salem Prosecutor schools school board lawyer on OPMA

On February 12, 2014, I wrote to the Salem County Prosecutor's Office about various Open Public Meetings Act (OPMA) violations committed by the Penns Grove - Carney's Point Board of Education.  My letter is on-line here.

In his February 18, 2014 response (on-line here), Prosecutor John T. Lenahan advised me that he had discussed my letter with the school board's attorney and that the attorney "assured [him] that every effort will be made to fully comply."  Prosecutor Lenahan also provided the school board with a copy of the May 16, 2008 letter that he had sent to all municipal governing bodies in Salem County (but not to school boards) in response to an OPMA complaint I had previously filed.

Friday, March 14, 2014

Mount Arlington's compliance with New Jersey's e-mail retention requirements.

I e-mailed the following letter to Mount Arlington Borough's (Morris County) Mayor and Council today.
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March 14, 2014

Hon. Arthur R. Ondish, Mayor and members of the
Mount Arlington Borough Council
419 Howard Blvd
Mount Arlington, NJ 07856        (via e-mail only )
           
Dear Mayor Ondish and Council Members:

I write both individually and in my capacity as Chairman of the New Jersey Libertarian Party’s Open Government Advocacy Project to learn whether Mount Arlington Borough has an e-mail retention policy that will ensure that official e-mails are retained and archived consistent with State guidelines.

This inquiry was prompted by a story on nj.com entitled "Prosecutor warns Mt. Arlington: Stop talking about public issues behind closed doors" by Louis C. Hochman.  Within the story is a scan of a redacted e-mail from December 2, 2013 that was authored by Councilwoman Paula Danchuk.

I note that most of recipients of Danchuk's e-mail (and all of the elected officials) have what appear to be personal, non-municipal e-mail addresses with companies such as optonline.net or msn.com. For example, Borough Council Member John Windish’s e-mail address is listed as johnw76072@msn.com which is apparently Windish's personal e-mail address.

Compare the Mount Arlington Council’s e-mail directory to Vineland’s in Cumberland County.  If you click on the e-mail link for any of the Vineland City Council members, you will be given their “Vinelandcity.org” e-mail address, which is part of the municipality’s domain rather than a personal e-mail address.

The fact that Mount Arlington's elected officials use their personal e-mail addresses concerns me because it leaves open the possibility that the Mayor and Council may be sending and receiving e-mails that are “government records” in accordance with the Open Public Records Act (OPRA)  but which are not being properly retained and archived by the Borough administration. (As you are probably aware, e-mails on an elected official's personal computer are government records subject to disclosure under the Open Public Records Act.  See Donal Meyers v. Borough of Fair Lawn, GRC Case No. 2005-127)

My concern is this: Suppose that Councilman Windish, whose term of office expires on December 31, 2015, decides not to seek reelection and moves out-of-state.  What if a member of the public, in early 2016, requests a copy of an official e-mail that Councilman Windish sent or received prior to December 31, 2015, when he still held elected office?  Would the Borough Clerk be able to produce the requested e-mails from the Borough’s own files, or would she need to track down former Councilman Windish and ask him to produce the e-mails from his own files in order to satisfy the records request?  If it’s the latter, then what would the Borough Clerk do if former Councilman Windish’s computer had since crashed or if the e-mails were otherwise not available? 

Vineland would not have this problem because e-mails that are sent or received by Vinelandcity.com e-mail addresses are presumably preserved on the City’s server.  So, Vineland’s clerk could retrieve any requested e-mails from the City’s server without having to contact the Council member who sent or received those e-mails.

As you are probably aware, Mount Arlington Borough must comply with the New Jersey Division of Archives and Records Management's “Circular Letter No. 03-10-ST” entitled, “Managing Electronic Mail: Guidelines And Best Practices” which, among other things, makes the Borough responsible for a) archiving e-mails and ensuring that the e-mail system is reliable enough to meet state and federal “Rules of Evidence” requirements (Sec. 2.6); b) ensuring that e-mails are “indexed in an organized and consistent pattern” (Sec. 2.7); and c) setting forth “agency procedures” so that employees can “understand and carry out their role in managing e-mail.” (Sec. 2.8). 

Since it appears that the Mount Arlington Mayor and Council members are likely communicating official business via their personal e-mail accounts, I am having difficulty understanding how they are compliant with the Circular Letter.  I ask that you please discuss this matter at your April 1, 2014 Council meeting.

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

Sincerely,

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