Friday, October 31, 2014

Prosecutor releases some information, denies the rest, regarding 2013 Perth Amboy Police shooting of special needs man.

On December 4, 2013, at about 1:20 p.m., Perth Amboy Police Officers Rafael A. Puntiel and Gina Fontan fatally shot Dixon Rodriguez, 32, of Hall Avenue.  According to the officers, Rodriguez attacked Fontan with a knife.

News reports issued within a day after the shooting quoted Rodriguez's neighbors saying that they were skeptical of law enforcement's claim that Rodriguez had threatened the officers.  Some said that he "had the mind of a 6-year-old" and that "he's never hurt anybody."

In a December 6, 2013 news article, the Middlesex County Prosecutor's office claimed that a video, taken from a surveillance camera at a nearby grocery store, supported the officers' version of the shooting.

A December 7, 2013 article revealed that the Prosecutor's Office released 911 tapes from Rodriguez's mother indicating that her son was violent because she had not given him his medication.

On October 9, 2014, I submitted an Open Public Records Act (OPRA) and common law right of access request for "the use of force reports filed by the officer(s) who pulled the trigger, all witness statements taken from anyone and a copy of the video (and audio, if any) that captured the shooting."

On October 23, 2014, James E. O'Neill, Public Information Officer for the Middlesex County Prosecutor's Office released the use of force reports (on-line here) which were filed by the officers on December 19, 2013 and show that both officers fired an "unknown" number of shots which struck Rodriguez an "unknown" number of times.  And, even though I did not request them, O'Neill provided me with .wav files of two 911 call, on-line here and here, that are in Spanish from a female caller--presumably Rodriguez's mother.

O'Neill denied access to the witness statements and the video that captured the event from a nearby grocery store. "These documents are part of a criminal investigatory record and are exempt from public disclosure," he wrote.

"Generator Gate" redux: Warren County Sheriff releases redacted Internal Affairs records.

On October 31, 2014, Warren County released redacted versions of the Sheriff's Office's Corrections Division's internal affairs case logs for the years 2012, 2013 and so far in 2014.  Those logs, along with Sheriff Gallant's October 28, 2014 letter to me are on-line here and my records request for them is on-line here.

One entry on the log, Case No. 2012-21, differs from the rest.  Rather than listing the complainant's and principal's names and a description of the charges, Case 2012-21 simply states "All records contained at Sheriff's Department."

Case No. 2012-21 is the Internal Affairs case related to a widely-publicized incident in which an employee of the Sheriff's Department took a county-owned generator for personal use during Superstorm Sandy.  Background on my lawsuit against Warren County regarding that matter is on-line here.

I know that Case No. 2012-21 is the generator case because the Warren County Prosecutor's January 4, 2013 denial of my records request, which led to my lawsuit, referred to Case No. 2012-21 on the third page of the PDF on-line here.

Tuesday, October 28, 2014

Lawsuit challenges State Police denial of records pertaining to excessive force allegedly being applied against South Jersey woman.

On Friday, December 5, 2014 at 9:30 a.m., Mercer County Assignment Judge Mary C. Jacobson will hear argument on my lawsuit against the New Jersey State Police.  See Paff v. NJ Department of Law & Public Safety, et al, Docket Number MER-L-1623-14, on-line here.  My lawyer in this matter is Walter M. Luers of Clinton.

This lawsuit arises out of phone call I received on May 10, 2014 in which a witness recounted a Commercial Township (Cumberland County) woman's physical encounter with a unidentified State Trooper.  According to a the report, the woman, who weighs ninety pounds, tried to speak with a Trooper who had responded to a residence to investigate a report of an argument or disturbance.  When the woman tried to hand a telephone to the Trooper so that the woman's mother, who was on the line, could "explain the whole thing," the Trooper allegedly grabbed her by the throat and forcible dragged her down the front step, slammed her on the ground and put his kneecap on her throat.  According to the witness, when another witness asked the Trooper to ease up, the Trooper reportedly said "We can do whatever the f*** we want."

In order to learn the State Police version of what had occurred, I submitted an Open Public Records Act (OPRA) request for the arrest reports, police incident reports, audio of phone calls and radio transmissions, dash cam video and criminal complaints.  After State Police records custodian, Marco Rodriguez, granted himself two extensions he ultimately denied the request claiming that there was an open investigation and that the records were exempt as "criminal investigatory records."

I then made a subsequent request for State Police policies and procedures requiring police interactions with civilians to be documented by written reports or computer aided dispatch (CAD) entries.  Rodriguez denied this request on the basis that those records are "designated confidential" by N.J.A.C. 13:1E-3.2(a)(1).  But, that section is inapplicable since it exempts "records concerning background investigations or evaluations for public employment, appointment to public office, or licensing, whether open, closed, or inactive."

Monday, October 27, 2014

Police Chiefs' group seeks entry into OPRA suit over e-mail logs.

By way of background, Atlantic County Judge Nelson C. Johnson, on June 10, 2014, required Galloway Township to disclose e-mail logs showing the sender, recipient, date and subject line of each e-mail sent by a specific government employee during a specified period of time.  On September 4, 2014, Galloway appealed from that ruling.  More information and case documents are on-line here.

On October 23, 2014, the New Jersey State Association of Chiefs of Police ("NJSACOP") requested permission to join the appeal as amicus curiae or "friend of the court."  The NJSACOP, represented by the Morristown law firm of Porzio, Bromberg & Newman, P.C., argued that public disclosure of e-mail logs of police officials would be "crippling" and "could compromise the sensitive investigatory techniques of police departments throughout the State and irreparably damage the fluid and consistent exchange of confidential information within the departments."  The NJSACOP's filing is on-line here.

While the Appellate Division will likely grant the request, the NJSACOP's position doesn't make much sense. Galloway has never argued that the e-mails identified by the log (provided that they weren't otherwise exempt) weren't themselves subject to the Open Public Records Act (OPRA).  Rather, the Township argued that producing a log would require it to create a new record that does not already exist--something OPRA does not require agencies to do. While the Township's position is understandable, the NJSACOP's argument that producing logs would compromise sensitive police investigations is frivolous because any sensitive information could be redacted from the logs in the same way that such information could be redacted from the e-mails themselves.

Friday, October 24, 2014

After lawsuit threat, State releases list of 228 local units who may have allowed improper pension enrollees.

In July 2012, the New Jersey Office of the State Comptroller (OSC) published a report (on-line here) on towns and school districts that appeared to have been improperly keeping their appointed professionals enrolled in the PERS state pension system despite a 2008 law that required those professionals to be removed from the system.  According to page 7 of its report, the OSC
first obtained data concerning . . . professionals who are providing services to municipalities and school districts (collectively referred to in this report as “local units”) [and] then cross-referenced the names of those professionals with PERS data and developed a list of 332 PERS-enrolled professionals providing such services [that] were retained by 228 different local units.
I then submitted an Open Public Records Act (OPRA) request for the lists of the 228 local units and 332 PERS-enrolled professionals and was denied because disclosure would allegedly violate the professionals' "reasonable expectation of privacy."    More information on my OPRA request and the State's denial is on-line here.

Today, after receiving a lawsuit threat from my lawyer, Richard M. Gutman of Montclair, OSC Records Custodian Robert Shane decided to disclose the list of 228 local units while still suppressing the list of 332 PERS-enrolled professionals.  The list of local units is on-line here.

The list does not identify the county in which each local unit is located.  This makes it impossible to determine whether the "Fairfield" on the list refers to the municipality in Essex or the one in Cumberland County.   And, the presence of a town on this list does not automatically equate to a violation of the PERS or the public trust.  Please consider this list merely as a source of information to aid future research.

Thursday, October 23, 2014

Lawsuit: Kinnelon delinquent on meeting minutes since 2009.

On October 16, 2014, a local woman filed a civil lawsuit against the Borough of Kinnelon (Morris County) seeking to compel the Borough Council and Interim Borough Clerk Karen M. Iuele to approve and make the Council's executive and "workshop" meeting minutes "promptly available" as required by the Open Public Meetings Act (OPMA).

In her lawsuit, Donna Dixon claims that the Kinnelon Council had not, as of this summer, created any written minutes of its nonpublic (closed or executive) meetings since January 1, 2009.  The lawsuit also alleges that the Borough has not created, since 2009, any minutes of its "workshop" meetings that are held on the second Thursday of each month.  The only minutes the Borough has maintained are those of the Council's "regular" meetings held on the third Thursday of each month.

Dixon claims that when she made an Open Public Records Act (OPRA) request for the delinquent minutes in August, Iuele needed a thirty day extension to handle the request. Then, Dixon and the Borough Council released seven sets of closed minutes on September 18, 2014.  According to Dixon, several closed meetings occurred between 2009 and 2014 for which no minutes have yet been released.  She seeks an order compelling the Borough to make all its past minutes available and to develop an enforceable procedure to ensure that future meeting minutes are made promptly available.  She also seeks an order compelling the Borough Council to make its meeting agenda publicly available at least two days prior to each meeting.

Her suit, filed by Walter M. Luers of Clinton, is captioned Dixon v. Borough of Kinnelon, et al, Docket No. MRS-L-2480-14.  No court proceedings are yet scheduled.  A copy of Dixon's lawsuit is on-line here.





Tuesday, October 21, 2014

State may close Bridgeton Port Authority in January.

The transcripts of the Local Finance Board's August 13, 2014 meeting minutes pertaining to the Bridgeton Port Authority are on-line here.  These 22 pages provide a good example of a public agency that has been woefully mismanaged and neglected.  Here's a quote from the transcript:
Here we have an authority that doesn't do any of those things. With all due respect it is a port authority and there isn't a single boat anywhere--or a slip for that matter. They don't have staff and they don't do anything.
Thomas Neff, Chairman
New Jersey Local Finance Board


Saturday, October 18, 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. Bergen County, et al.
Bergen County, Docket No. BER-L-7739-14
Hon. Peter E. Doyne, A.J.S.C.
October 16, 2014
Click here for the court's decision.
Click here for file complaint, brief and exhibits.
Click here for Order awarding Plaintiff attorney fees and costs.

Summary: List of Internal Affairs Complaints against corrections officers who work in the Bergen County Jail is subject to disclosure under OPRA.  “Attorney General Guidelines” are not a recognized exception to OPRA’s general requirement favoring disclosure of government records.

Thursday, October 16, 2014

Letter to NJ Pensions: Should Gibbsboro's lawyers' PERS termination be retroactive to 2008?

It looks as though Gibbsboro recently took Municipal Prosecutor Higgins and Public Defender Wiggington off the PERS pension rolls because of an investigation by the Pension Fraud and Abuse Unit.  My questions are: a) Will the Pension Fraud and Abuse Unit push for these lawyers' removal retroactive to 2008? and b) If not, would there be a financial benefit to PERS if I were to file a lawsuit to compel retroactive removal?  My letter to the Pension Fraud and Abuse Unit follows:

------------------------------------------------

New Jersey Libertarian Party's
Open Government Advocacy Project
P.O. Box 5424
Somerset, NJ  08875
732-873-1251
paff@pobox.com

October 16, 2014

Marc Greenfield
Pension Fraud and Abuse Unit
via e-mail

Dear Mr. Greenfield:

I chair the New Jersey Libertarian Party's Open Government Advocacy Project.  We have recently been investigating the issue of municipal governments', despite the 2007 enactment of N.J.S.A. 43:15A-7.2, seeming unwillingness to wean their independent professionals, such as municipal prosecutors and public defenders, from PERS enrollment.

As a starting point, we began our investigation with Camden County lawyers Timothy Higgins and Charles Wiggington who serve, respectively, as municipal prosecutor and public defender for the Borough of Gibbsboro.  The blog articles we have published so far on our investigation are here and here.

In summary, we have determined that both Higgins and Wiggington were certified by Gibbsboro as being PERS eligible until their termination from PERS effective August 30, 2014.  This morning, I received, via an OPRA request to Gibbsboro, your August 18, 2014 e-mail to Borough Clerk Anne Levy and your colleague Kristin Bell's August 13, 2014 letter to the Borough.  Both the e-mail and the letter are on-line here.

From reviewing all the material, it appears to me that Gibbsboro was carrying Higgins and Wiggington on the PERS rolls, and probably intended to keep carrying them, until the Pension Fraud and Abuse Unit recently decided to conduct its investigation into these lawyers' PERS eligibility.  Under the pressure of your Unit's investigation, Gibbsboro finally threw in the towel and decided to remove the two lawyers from the PERS rolls.

While this is a good thing, it leaves open the question of whether Higgins' and Wiggington's separation from PERS ought to have been retroactive to 2008.  It seems to us at least arguable that if Higgins and Wiggington are not now eligible for PERS, they probably have not been eligible for the last six or so years.

As a public service, we may be interested in filing a lawsuit in lieu of prerogative writs seeking an order compelling the State to retroactively remove Higgins and Wiggington from the pension rolls on the proper date in 2008.  Similarly, we might investigate filing citizen complaints, in accordance with R.7:2-2(a)(1), against Gibbsboro's Certifying Officer and Certifying Officer's Supervisor if they certified to Higgins's and Wiggington's PERS eligibility when it was plain that they were not eligible. Before embarking on either of these paths, we would like to ask two questions.  First, is the Pension and Fraud Unit's intent to seek retroactive removal of Higgins and Wiggington from the PERS rolls or are you satisfied with these lawyers' removal from the PERS effective August 30, 2014?

Second, if your Unit is not seeking to take any further action and is content with the August 30, 2014 separation date, would a successful effort on our part to roll these lawyers' termination dates back to 2008 have any actual effect on the Pension System?  We do not wish to commence a lawsuit unless success would yield a financial benefit to the PERS and its legitimate enrollees.

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

Very truly yours,

John Paff

Wednesday, October 15, 2014

Plot thickens on Gibbsboro prosecutor's and defender's pension enrollment

On October 14, 2014, I wrote to Gibbsboro's Mayor and Clerk seeking more information regarding Municipal Court Prosecutor Timothy Higgins' and Public Defender's Charles Wiggington's enrollment status with the PERS pension.  That letter is on-line here.

Today, in response to another OPRA request, Borough Clerk Anne Levy provided me with the Borough's August 27, 2014 letter to New Jersey's Pension Fraud and Abuse Unit advising that Unit that Higgins and Wiggington were "terminated from the PERS pension as of 9/1/14."  According to the letter, which is on-line here, the termination of the two men apparently resulted from an August 8, 2014 e-mail and a August 13, 2014 letter that the Borough received from the Pension Fraud and Abuse Unit.  I have submitted an OPRA request for that e-mail and letter and will post them upon receipt.

Tuesday, October 14, 2014

Letter to Gibbsboro regarding professionals' enrollment in state pension

New Jersey Libertarian Party's
Open Government Advocacy Project
P.O. Box 5424
Somerset, NJ  08875
732-873-1251
paff@pobox.com

October 14, 2014

Hon. Edward G. Campbell, III, Mayor and Clerk Anne D. Levy
Borough of Gibbsboro
49 Kirkwood Rd
Gibbsboro, NJ  08026
(via e-mail only to mayor@gibbsborotownhall.com and gibbyclerk@comcast.net

Dear Mayor Campbell and Clerk Levy:

I write to you both on behalf of the New Jersey Libertarian Party's Open Government Advocacy Project because Clerk Levy serves as the "Certifying Officer" and Mayor Campbell serves as the "Certifying Officer's Supervisor."  This means that both of you, in accordance with N.J.S.A. 43:3C-5, periodically certify to the State which of Gibbsboro's employees are eligible for enrollment in New Jersey's Public Employees' Retirement System (PERS).  For your ready reference, I have placed your certification credentials here, which I recently received from Clerk Levy in response to a public records request.

Also in response to a recent records request, Clerk Levy provided me with a table that reflects which Gibbsboro employees you both deemed to be eligible for PERS enrollment for the third quarter 2014. That table is also on-line here for your ready reference.

The first thing that struck me was that Mayor Campbell himself is enrolled in PERS while none of the other members of the Borough Council are enrolled.  But, I subsequently researched the PERS Handbook (on-line here) and found that elected officials are eligible for enrollment if they were elected prior to July 1, 2007.  I believe that Mayor Campbell has been Mayor of Gibbsboro for at least that long, so I have no quibble with his enrollment.  (I include the fact of his enrollment in this letter, which I have made public, only so that those who review the table at the link above and question the mayor's enrollment will understand that it is permissible under PERS rules.)

Not so clear, however, is the PERS enrollment of Timothy Higgins and Charles Wiggington, who appear, respectively, to be Gibbsboro's municipal court prosecutor and public defender.  I note that the table shows that these two lawyers were enrolled in PERS but were "terminated" on August 30, 2014.

On-line here is the New Jersey's Office of the State Comptroller (OSC) July 17, 2012 report entitled "Improper Participation By Professional Service Providers In The State Pension System." According to this report, the PERS pension was intended for career employees who dedicate their careers to public service.  Despite this intention, various independent contractors, including appointed lawyers and engineers, have, over the years, enrolled in PERS even though they were ineligible.

To combat these improper enrollments, the Legislature enacted N.J.S.A. 43:15A-7.2 in 2007 which intended to get these freeloading professionals off the PERS rolls.  However, the report laments, the legislation has been largely unsuccessful because as of the report's writing in 2012
an overwhelming majority of surveyed local government entities failed to comply with the statutory  mandate to determine whether these professionals are independent contractors or employees. As  a result, they have failed to remove ineligible independent contractors from PERS. (Report, page 1).
The report gives examples of municipal court prosecutors and public defenders who the OSC found to be improperly enrolled in PERS.  Strikingly, the report, on page 11, mentions Gibbsboro's improper determination that its prosecutor and public defender were somehow "grand fathered" into the pension plan by virtue of their length of service:
Similarly, the Borough of Gibbsboro identified its municipal prosecutor and  public defender as professional service providers enrolled in PERS. The borough stated to us, in  relevant part, that these individuals have been in those positions since 2004 and 2006  respectively and “while they are appointed on a yearly basis, they are continuing employees.”  As discussed above, however, the law provides no such grand fathering exception. 
This raises a few questions regarding Higgins and Wiggington and Gibbsboro's treatment of their PERS enrollment:

1. Does the "terminated on August 30, 2014" entry on Gibbsboro's 3rd Quarter 2014 PERS table mean that Higgins and Wiggington were terminated from PERS enrollment effective August 30, 2014?

2. If so, why did Gibbsboro's Certifying Officer and Certifying Officer's Supervisor continue to keep them on the pension plan until 2014 when it appears that they should have been removed in 2008?

3. If I understand the matter correctly, Gibbsboro's delay in removing these enrollees is especially hard to understand since the OSC put the Borough on notice of this exact issue more than two years ago.

I do not profess to be an expert in PERS, or pensions in general so, for all I know, I may be suffering from a misunderstanding.  So, I invite either of you to call or write to correct my misunderstanding.  I have also submitted an additional Open Public Records Act request for more documentation.

Thank you for your attention to this matter.

Very truly yours,

John Paff, Chairman

Sunday, October 12, 2014

Crest Captain Mayer seeks "opportunity to join in 'Brady letter' case."

Update: November 29, 2014.  David Mayer's brief opposing disclosure of the Brady letters is on-line here.
Approximately six weeks after Judge Nelson C. Johnson ruled that the Cape May County Prosecutor has to provide we with "Brady letters" involving Wildwood Crest Police Captain  David Mayer and Lieutenant Michael Hawthorne, Mayer, in an October 7, 2014 letter from attorney Joseph J. Rodgers, has asked Johnson to reopen the case.  According to Rodgers' letter, Mayer "will be harmed by the court's ruling unless the case is reopened to allow all interested parties an opportunity to join in the case.  Background on the case is here.

In an October 12, 2014 response, my attorney Richard Gutman urged Johnson to deny Rodgers' request  Both Rodgers' letter and Gutman's response are on-line here.



Friday, October 10, 2014

Unpublished trial court OPRA and 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.

Kean Federation of Teachers v. Kean University
Ocean County, Docket No. OCN-L-179-14  
Hon. Vincent J. Grasso, A.J.S.C.
September 18, 2014
Click here for the court's decision.

Summary: Draft resolutions that are to be voted upon by the Board are deliberative and are not subject to OPRA or the common law right of access. Delay of ninety-seven (97) before redacted minutes of closed meeting are disclosed is not "prompt" under the OPMA.  Redacted minutes were incomprehensible and thus violated OPMA's mandate that meeting minutes contain sufficient facts and information to describe what took place at the meeting and what final action was taken in order to permit the public to understand and appraise the reasonableness of the public body’s determination. Board violated the OPMA by over-redacting its closed minutes and by failing to properly explain the redactions.


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. Ocean County Prosecutor's Office
Ocean County, Docket No. OCN-L-1645-14
Hon. Vincent J. Grasso, A.J.S.C.
October 2, 2014
Click here for the court's decision.

Summary: Access sought to police dash camera video of an incident involving a police offer and a citizen.  Court held that the Police Department's general order requiring the video to be recorded had the force of law, thus taking the recording out of the scope of OPRA's criminal investigatory record exception.

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.

Newark Morning Ledger v. Office of the Governor
Mercer County, Docket No. MER-L-948-14
Hon. Mary C. Jacobson, A.J.S.C.
October 2, 2014
Click here for the court's decision.

Summary: Newspaper reporter sought communications regarding a gas pipeline project through the Pinelands region.  Court ruled that certain records were available but that others were not.  The court discussed the ongoing investigation exception, the advisory, consultative and deliberative (ACD) exception and the application of the the ACD privilege in the context of the common law right of access.


Thursday, October 9, 2014

State refuses to identify municipal professionals enrolled in state pension plan. Claims that those professionals have a "reasonable expectation of privacy."

In 2007, the New Jersey Legislature enacted N.J.S.A. 43:15A-7.2, which was intended to curtail the participation of professional service providers such as attorneys and engineers in the New Jersey Public Employees’ Retirement System (PERS). The law, which became effective on January 1, 2008, made these professionals ineligible for PERS participation as of the expiration date of their existing contract or annual appointment.

Despite this mandate, the New Jersey's Office of the State Comptroller (OSC), in a July 17, 2012 report entitled "Improper Participation By Professional Service Providers In The State Pension System," (on-line here) found that "an overwhelming majority" the municipalities and school districts it surveyed had "failed to comply with the statutory requirement to remove independent contractors from PERS."  This failure, the OSC report noted, has the potential to cost the state millions of dollars in inappropriate future pension benefits."

According to the report, the OSC developed a list of 332 professionals, retained by 228 municipalities and school districts, who remained in the PERS system after the law took effect.  The OSC then conducted a survey of 58 of the 228 local units and several of those municipalities surveyed are mentioned in the report.

On September 22, 2014, I submitted an Open Public Records Act (OPRA) and common law right of access request (on-line here) to the OSC for a list of the 332 PERS-enrolled professionals as well as a list of the 228 local units that retained those 332 enrollees.  In his October 8, 2014 letter (on-line here), OSC Records Custodian Robert Shane denied access to these lists claiming a "reasonable expectation of privacy" that the pension-enrolled professionals have "in not publicizing the fact that he or she is under investigation by a public agency."  According to Shane, "the reputational harm to targets of investigations in the absence of confidentiality is well-recognized" by law.  He also denied access on the basis of there being an on-going investigation and because the types of pension records I requested are specifically exempted from access by the OPRA.

In response to my request under the common law right of access, Shane claimed that "the public's interest in confidentiality of the documents outweighs the requestor's interest in access."

I am considering litigating this denial.

Tuesday, October 7, 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.

Ganzweig v. Lakewood Township, et al
Ocean County, Docket No. OCN-L-1292-14
Hon. Vincent J. Grasso, A.J.S.C.
October 2, 2014
Click here for the court's decision.

Summary: A local police department's policy regarding the creation and retention of dash cam videos has the force of law within the meaning of NJSA 47:1A-1.1 and therefore the dash cam videos are not exempt as "criminal investigatory records."

Medford Township, absent a written agreement, paid private organization's electric bill.

Following is my letter to the Interim Manager of Medford Township in Burlington County.
------------------------------------------------------------
October 7, 2014

Katherine Burger, Interim Manager
Township of Medford
17 North Main Street
Medford, NJ 08055
via e-mail only to kburger@medfordtownship.com

Dear Ms. Burger:

Thank you for your October 6, 2014 response to my Open Public Records Act (OPRA) request and for providing me with the electric bills and "Township Manager Exit Report."  For your ready reference, I have placed your response and the responsive records on-line here.

According to the Exit Report, the Township's erroneous installation of some drainage pipes caused water stagnation in one of the Birchwood Lakes Homeowners Association's lakes. In lieu of fixing the pipe installation, the Township agreed to pay up to $200 per year for electricity to run an aerator pump that the Association installed in the lake.  The electric bills show that the pump's actual usage was more in the range of $1,200 per year.

This arrangement causes concern and raises questions.

First, I believe that it is axiomatic that a municipality cannot spend public funds without some sort of formal approval process, such as submission of a voucher and approval of the voucher by the the municipal council.  Unless there are some other records that you did not disclose in response to my request, it appears that the Township entered into a verbal agreement to establish and pay for an electric account that benefitted a private organization.  How can this be squared with the Local Public Contracts Law and other laws and regulations that prescribe the procedures that must be followed before public money can be spent?

Second, even if the agreement is valid, it concerns me that the Township put the electric bill in its own name rather than having the Association put the bill in its name and then reimbursing the Association the agreed upon amount.  This made the taxpayers responsible for the entire bill, which greatly exceeded the $200 annual amount that was estimated by the Association.  Establishing a municipal utility account in this instance also made it more difficult for members of the public who reviewed the Township's bill list to realize that a private party was receiving a taxpayer funded benefit.

I am making this letter public so that Medford taxpayers may be informed of this issue.  I invite the taxpayers to direct any questions regarding this matter to you or the Township Council.

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



Monday, October 6, 2014

Appellate Division: OPRA's fee shifting provision has no bearing on indigent's right to sue.

On October 6, 2014, the Appellate Division, in an unpublished opinion which is on-line here, reversed the trial court's refusal to waive the filing fee for an indigent woman who wished to sue her local school board for violating her rights under the Open Public Records Act (OPRA).  The lower court held that because OPRA allows a successful litigant to recover costs and fees from the government agency sued, there is no need to waive filing fees for such an indigent.  The Appellate Division aptly ruled that "[i]f an indigent person cannot pay the filing fee to start a fee-shifting action, the prospect of having the fee reimbursed in the future is of no value."