Friday, January 30, 2015

Lawsuit seeks nature of “suspicious incident” that resulted in Bound Brook High School teacher's firing.

On March 11, 2015 at 9 a.m., Somerset County Superior Court Assignment Judge Yolanda Ciccone will hear argument in my newly filed lawsuit against the Borough of Bound Brook (Paff v. Borough of Bound Brook, Docket No. SOM-L-72-15). The main issue in my lawsuit, which was filed by Montclair attorney Richard M. Gutman, is whether Bound Brook Borough violated my rights under the Open Public Records Act (OPRA) and the common law right of access by redacting the "narrative description" from a police report of an October 29, 2014 incident involving a 24-year-old teacher (identified as the "Suspect") and an unidentified juvenile (identified as the "Victim").

The facts obtained so far show that Bound Brook High School Principal Dan Gallagher called police on October 29, 2014 to report a "suspicious incident" at the high school.  The suspect was 24-year old high school art teacher Kimberly L. Charnuska and the alleged victim was a juvenile. Two Bound Brook Borough police officers were dispatched to the high school and were “cleared” from the call 26 minutes later. On the same day that the incident was reported, Bound Brook High School art teacher Kimberly Charnuska was suspended with pay and four weeks later she was terminated at a November 24, 2014 Bound Brook Board of Education meeting.

In response to my OPRA request, the Borough released a "911 CAD Incident Report" but had redacted the "Narrative Description" of that report. The redacted narrative description would very likely reveal the nature of Charnuska's alleged conduct that resulted in her suspension and termination.  My complaint argues that I am entitled to the narrative description under OPRA.  It also argues that the public's interest in knowing more about this matter, so that it can determine whether Charnuska was treated too leniently or too severely, outweighs the Borough's or Charnuska's interest in keeping the matter confidential.

My lawsuit, brief, certification and related documents are on-line here.

Wednesday, January 21, 2015

Jersey City Police Internal Affairs log on-line.

Police Departments in New Jersey are required to annually report a synopsis of all Internal Affairs cases that resulted in imposition of a 10-day or greater fine or suspension.  Jersey City provided redacted reports for 2011, 2012, 2013 and 2014 which I've placed on-line here.

I believe that the types of charges, some involving criminal conduct, against these officers may be of interest to readers.

01/22/15 UPDATE:  North Bergen police have confirmed that the March 28, 2011 entry regarding a male police officer allegedly having sex with a 16-year-old girl in North Bergen motel related to Officer Marcos Kelly.  This is not news as it has been written about in the Star Ledger.  The Jersey City IA roster confirms that Kelly was allowed to enter into the Pre-Trial Intervention (PTI) program and can never again hold "any office or position of honor, trust or profit under this State or any of its administrative or political subdivisions."  North Bergen's police incident report is on-line here.

Tuesday, January 20, 2015

Fire District's insurer's lawyer's error causes OPRA case's dismissal.

Yolanda Ciccone, A.J.S.C.
My Open Public Records Act (OPRA) lawsuit for disclosure of an agreement under which a former Franklin Township (Somerset County) fire commissioner settled his defamation lawsuit against several fire officials has been dismissed.  Background on that suit is on-line here.

Somerset County Assignment Judge Yolanda Ciccone's decision to dismiss, however, was based on an erroneous statement made by the fire district's insurance carrier's attorney during a January 12, 2015 court hearing.  The insurer's attorney, Raina M. Pitts of the Edison law firm of Methfessel & Werbel mistakenly told Ciccone that her client, American Alternative Insurance Corp, was not in possession of the settlement agreement.

Pitts advised Judge Ciccone of her error in a January 19, 2015 letter.  Judge Ciccone's order and decision and a copy of Pitts' letter are on-line here.  Given that the dismissal was caused by inaccurate information, we plan on asking Ciccone to reconsider her ruling.

Friday, January 16, 2015

Police Department Vehicle Pursuit Reports

The New Jersey Attorney General's Vehicle Pursuit Rules require each law enforcement agency to annually prepare a "Vehicular Pursuit Summary Report" setting forth the number of police vehicle pursuits and the number of accidents, injuries and deaths resulting from those pursuits.  I collected examples of these summary reports from two police departments at opposite ends of the state--Bridgeton (Cumberland County) and Mahwah (Bergen County).  I have placed the reports on-line here.

The reports help citizens get a sense as to how frequent police chases are in their towns.  They also provide information that can lead to additional Open Public Records Act (OPRA) requests.  For example, Bridgeton's 2013 report shows that one police injury and one police car accident occurred during a high speed chase.  Interested citizens could request the police report for that incident.

Wednesday, January 14, 2015

Hainesport ordered to pay attorney fees in common law right of access case.

On September 23, 2014, Burlington County Assignment Judge Ronald E. Bookbinder ordered Hainesport Township to disclose which Township officials and employees were receiving taxpayer subsidized health insurance.  This decision was made in response to my lawsuit, brought by attorney Walter M. Luers of Clinton, that sought that information under both the Open Public Records Act (OPRA) and the common law right of access.  Bookbinder ultimately ruled that the documents were subject to disclosure under the common law.

Today, January 14, 2015, Bookbinder also ordered Hainesport to pay Luers $4,770.70 in attorney's fees and $359.92 in costs.  This is one of only a few cases where a court has ruled that the common law right of access triggers an award of attorney fees.  Bookbinder's decision is on-line here.

Monday, January 12, 2015

State agrees to adopt Libertarian Party's transparency initiative.

On August 1, 2014, the New Jersey Libertarian Party (NJLP) formally petitioned the New Jersey Department of Community Affairs (DCA) for a rule requiring municipalities and other local government units to specify an "up to" dollar amount in each resolution that awards a public contract.  At its December 10, 2014 meeting, the DCA's Local Finance Board preliminarily approved the requested rule and will consider final adoption  after a 60-day public comment period.

The NJLP submitted its rulemaking petition in response the Parsippany-Troy Hills governing body's award of a no-bid financial consulting contract to a company that was reportedly owned by or tied to the township's recently-resigned Chief Financial Officer.  The resolution that awarded the contract and other related paperwork said only that the amount of the contract "will exceed $17,500."  When a local newspaper requested records showing the exact contract amount, Parsippany-Troy Hills responded that the contract "hasn't been signed by the Administration [and that] could take up to 30 days."

John Paff, who chairs the NJLP's Open Government Advocacy Project and authored the petition, said that citizens have an "extraordinarily strong interest in knowing the amount of taxpayer money" spent on contracts and need "prompt and meaningful access to governmental information . . . to effectively fulfill their vital role in monitoring government and seeking redress for governmental excesses and abuses." The Local Finance Board agreed saying that the rule amendment will "increase transparency" and will "improve the public’s ability to monitor how tax dollars are being spent."

The Petition, Rule Proposal and related documents are on-line here.

Saturday, January 10, 2015

Is a volunteer fire company under contract with a fire district an OPRA "public agency"?

Update--March 15, 2016: See Appellate Court: Volunteer Fire Company is subject to OPRA.
On April 29, 2014, the Government Records Council (the agency that enforces the Open Public Records Act (OPRA)) ruled in Robert A. Verry v. Franklin Fire District No. 1 (Somerset), GRC Case No. 2013-196 that Millstone Valley Fire Department "is a member of the Franklin Fire District No. 1 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 No. 1 [and] it is a public agency for purposes of OPRA."

Both the Fire District and Millstone Valley called the decision "palpably incorrect or irrational" and urged the GRC to reconsider it.  The records requestor, Robert A. Verry, took the opposite position calling the GRC's decision "well grounded in law."  I have placed the GRC's decision along with the briefs submitted by the District, Millstone Valley and Verry on-line here.  At this time, the GRC is still considering whether or not it will reconsider its decision and it is likely that the GRC's ruling--whichever way it goes--will be appealed to the Appellate Division.

The case turns on N.J.S.A. 40A:14-70.1, which is the statute that establishes the relationship between fire departments and fire districts.  That statute reads:
Fire districts; establishment of or contract with volunteer fire company
a. Any persons desiring to form a volunteer fire company to be located within or otherwise servicing the area encompassing a fire district or other type of volunteer organization which has as its objective the prevention of fires or regulation of fire hazards to life and property therein shall first present to the board of fire commissioners a written application for the organization of such company. Such application shall be in the form of a duly verified petition signed by them stating the kind of company which they desire to organize, the name or title thereof, the number and names of the proposed members thereof, and their places of residence. The board of fire commissioners, after considering such application and approving the members of the proposed company, may by resolution grant the petition and constitute such applicants a volunteer fire company of the district.
b. The board of fire commissioners of a fire district not having a paid or part-paid fire department and force may contract with a volunteer fire company or companies for the purpose of extinguishing fires, upon those terms and conditions as shall be deemed proper. The members of the company shall be under the supervision and control of the board of fire commissioners and in performing fire duty shall be deemed to be exercising a governmental function; however, the appointment or election of the chief of the volunteer fire company shall remain the prerogative of the membership of the fire company as set forth in the company's certificate of incorporation or bylaws.
The statute lays out two ways that a volunteer fire department can become associated with a district.  First, under (a), districts can form volunteer fire departments through a petitioning process.  Second, under (b), fire districts can contract with volunteer fire departments that already exist.  Since Millstone Valley was not formed through the petition method under (a), then only (b) is applicable to the matter at hand.

Both the GRC and Verry (see page 3 of Verry's brief) interpret (b) as saying that Millstone Valley Fire Department is "under the supervision and control" of the fire district. But that's not what the statute says.  The statute says that the members of Millstone Valley, not Millstone Valley Fire Department itself, is under the district's "supervision and control."  This distinction causes me to believe that the GRC decided the issue incorrectly.

Thursday, January 8, 2015

Union County ordered to pay activist's attorney fees.

On January 6, 2015, United States Magistrate Judge Michael A. Hammer recommended that Union County pay over $40,000 in attorney fees and costs to a Cranford activist whose freedom of speech was "chilled" by the County's demand that she stop using the County Seal on her public access cable television show. Manner's decision is on-line here.

Activist Tina Renna's television show, “Union County Citizen’s Forum," which is often critical of the Union County Board of Freeholders, displayed a graphic depicting a light shining on the Seal of Union County.  The County applied for a trademark on its seal and was denied.  Despite the denial, the County sent Renna a letter that incorrectly stated that the seal was “now trademarked under federal law." The County also advised Renna that use of the seal on her show was a criminal act.

With the help of the Rutherford Institute's attorney Douglas R. McKursick, Jr. and New Jersey attorneys Walter M. Luers and F. Michael Daily, Renna successfully sued Union County. In rebuke to the County, the court ruled that it was “hard to discern any purpose, other than general intimidation, for the citation of [a] criminal statute to [Plaintiff who was] represented by counsel."  

Hammer found that Renna's was an "exceptional case" that warranted the award of attorney fees of $39,535 plus costs of $550.65.  While Hammer's decision is a recommendation, it becomes final unless the County objects within
fourteen days.

NJ Legislative committee mulls program to shine light on some police internal affairs matters.

On Thursday, January 15, 2015, the Senate Law and Public Safety Committee will discuss Senate Bill No. 1236 which seeks to establish a two-year pilot program placing the Edison Township (Middlesex County) Police Department's internal affairs function under the jurisdiction of the New Jersey Attorney General.  Important for transparency advocates are amendments proposed by the New Jersey Foundation for Open Government (NJFOG) that would require the Attorney General to "publicly disclose the internal affairs complaints, investigative reports and internal affairs dispositions for each internal affairs matter that was processed during the two year pilot program."  NJFOG's proposal is fully supported by the bill's sponsor, Senator Peter J. Barnes, III (D-18), who has previously served on Edison's municipal council.

Police internal affairs cases are shrouded in secrecy and very little information about them is ever revealed to the public.  This makes it impossible for the public to know whether or not the internal affairs process is working properly.  The internal affairs process, like every other governmental function, works better when it is subject to meaningfully public inspection and oversight.

The Committee hearing, which is open to the public, will start at 10 a.m.  Although the meeting's location has not yet been announced, the Committee typically meets in Committee Room 10, 3rd Floor, State House Annex, Trenton.  Citizens interested in observing or testifying at the hearing should call Committee Aide Wendy S. Whitbeck at 609-847-3870 the day prior to confirm the hearing's date, hour and location.