Thursday, May 29, 2014

Swedesboro-Woolwich School District Executive Sessions

June 5, 2014 Update:  The school board's attorney's letter to the prosecutor's office is on-line here.
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May 29, 2014

Michael S. Curwin, First Assistant Prosecutor
Gloucester County Prosecutor's Office
70 Hunter Street
Woodbury, NJ 08096
Via e-mail only to mcurwin@co.gloucester.nj.us

Dear Mr. Curwin:

I have received information that the captioned school board did not record minutes of thirteen (13) nonpublic ("closed" or "executive") meetings held in 2013. 

This information came to me from Woolwich resident Tracy Stoehr, who filed an Open Public Records Act (OPRA) request for those meeting minutes in March 2014.  In response, Business Administrator Michael Griggel informed her, by way of an April 3, 2014 e-mail (on-line here) that "formal minutes had inadvertently not been prepared" for the 2013 meetings and that the Board was "in the process of preparing those minutes and anticipate submitting them to the Board for approval at its meeting next week."   Ms. Stoehr informed me last night that despite Mr. Griggel's promise, she still has not yet received any closed meeting minutes from 2013 except those from the January 9, 2013 meeting.

I understand that the County Prosecutor's role in enforcing the Open Public Meetings Act (OPMA) is to fine those who "knowingly violate" the Act in accordance with N.J.S.A. 10:4-17, and I concede that I have no evidence that the Swedesboro-Woolwich School Board's failure to record its meeting minutes goes beyond gross negligence.  Yet, when I find a particularly egregious OPMA violation I report it to the County Prosecutor's office with a request that the Prosecutor review the OPMA with the offending public body so as to minimize the possibility of a recurrence of the violation. 

I also wish to request that your office work with the Swedesboro-Woolwich School District to establish a deadline by which the missing closed session minutes will be available.  Currently, nearly two months have elapsed since Mr. Griggel's April 3, 2014 e-mail and the missing minutes have yet to be disclosed.

Thank you very much 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. Mr. Griggel via e-mail only to MGriggel@swedesboro-woolwich.com




Saturday, May 24, 2014

Unpublished trial court OPRA 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.

John Paff v. Township of Little Egg Harbor
Ocean County, Docket No. OCN-L-949-14
Hon. Vincent J. Grasso, A.J.S.C.
May 21, 2014
Click here for the court's decision.
Click here for Plaintiff's complaint and opening brief

Summary: Township violated OPRA by denying access to audio recordings of police radio tramsmissions. Even though the audio recordings were relevant to a subsequent police internal affairs investigation, the IA investigation does not retroactively exempt the recordings from OPRA's disclosure requirement.

Tuesday, May 20, 2014

Unpublished trial court OPRA 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.

John Paff v. Hudson County Sheriff's Department
Hudson County, Docket No. HUD-L-388-14
Hon. Lawrence M. Maron, J.S.C.
May 9, 2014
Click here for the court's decision.
Click here for the parties' filings.

Summary:

1. Police incident reports and video recordings of a police incident are "criminal investigatory records" and exempt from disclosure even though the Division of Archives and Records Management (DARM) guidelines require them to be maintained.

2. Even if the incident reports were not criminal investigatory records, they are subject to the "ongoing investigation" excemption because, according to a prosecutor's certification, "the criminal prosecution . . . is still in the pre-indictment stage" and "release of the documents sought would be inimical to the public interest and a bona fide law enforcement purpose."

3. Even if the video recordings were not criminal investigatory records, the camera that recorded them "is disguised to blend in with the features of the building" and disclosing the video would reveal the location of the camera which, in turn, would show unsavory individuals "how to approach the Family Services Office without being seen by camera."

Unpublished trial court OPMA 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.

Graceffo v. Point Pleasant Beach Zoning Board
Ocean County, Docket No. OCN-L-1280-13
Hon. Vincent J. Grasso, A.J.S.C.
November 15, 2013
Click here for the opinion.

Summary:

"While education of Board members on relevant legal and engineering principles arguably falls within the broad statutory definition of 'public business,'" such education sessions did not involve the "specific public business of [the] body" as required by N.J.S.A. 10:4-8(b).  Therefore, these educational sessions of the Board, to which the public is not admitted, do not violate the Open Public Meetings Act.

Note: Plaintiff has appealed from this ruling.

Saturday, May 17, 2014

Unpublished trial court OPRA 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.

Brian E. Johnson v. City of Estell Manor
Atlantic County, Docket No. ATL-L-7617-12
Hon. Nelson C. Johnson, J.S.C.
October 22, 2013 and March 14, 2014
Click here for the opinions.
Click here for the transcript of the September 5, 2013 plenary hearing.

Summary: 

1. Employee who was, without proper legal authority, compelled by subpoena to appeared before an ad hoc committee of the City Council, was entitled to a copy of the audio-disk of the proceeding at which he was compelled to attend under the common law right of access.  Employee was not, however, entitled to the audio-disk under the Open Public Records Act. 

2. Having prevailed on common law right claim, employee is entitled to recover from the City his costs and counsel fees totaling $21,167.92.

Note: The City has appealed from both orders.  The Appellate Division docket number is A-3864-13.

Thursday, May 15, 2014

Unpublished trial court OPRA 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.

Block v. Pitman School District, et al
Gloucester County, Docket No. GLO-L-657-13
Hon. Georgia M. Curio, A.J.S.C.
January 27, 2014
Click here for the opinion.

Summary:  Booster Club for high school sports team is not subject to the Open Public Records Act (OPRA).

Thursday, May 1, 2014

Volunteer Fire Departments within Fire Districts are OPRA "public agencies."

In an Order distributed today, May 1, 2014, the Government Records Council (GRC) ruled that a volunteer fire department in Franklin Township (Somerset County), which is within a Fire District, is a "public agency" that must respond to Open Public Records Act (OPRA) requests.

In Robert A. Verry v. Franklin Fire District No. 1, GRC Complaint No. 2013-196 (on-line here), the GRC held:
Notwithstanding that [Millstone Valley Fire Department] was likely created by the volunteer membership, is clear that member companies within a fire district exercise a government duty and are under the supervision and control of the district, which is clearly a “public agency." In essence, although the creation of a volunteer fire company is reserved only for the membership, said company organizing within a fire district is expressly required to apply to the district. As the Court noted in [Paff v. New Jersey State Firemen’s Ass’n], the relationship between the Association and its existence are owed to state law, as is the relationship between the creation and function of a volunteer fire company within a fire district. Thus, in applying the Court’s decision in Firemen’s Ass’n, to the facts of this complaint, the GRC is satisfied that [Millstone Valley Fire Department] is a “public agency” for purposes of OPRA.

Therefore, because [Millstone Valley Fire Department] is a member of the [Franklin Fire District] per N.J.S.A. 40A:14-70.1 and thus serves a governmental function under the supervision and control of the [Franklin Fire District], it is a public agency for purposes of OPRA.
This is the first decision of its kind that I am aware of in New Jersey.

Verry's attorney in the matter is John A. Bermingham, Jr., Esq. and the Fire District was represented by Dominic DiYanni .  The Fire District has 45 days within which to appeal the ruling.