Thursday, February 26, 2015

Unpublished trial court OPRA opinion.

Update: In a May 23, 2018 ruling, the Supreme Court reversed the Appellate Division's July 6, 2016 ruling.

Update:  In a July 6, 2016 opinion, the Appellate Division reversed the trial court's ruling.
"Unpublished opinions" are not published in the law books and are not ordinarily written about in legal periodicals.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 I think that it's important that court opinions, even if they are not precedential, are easily accessible for future use.

William J. Brennan v. Bergen County Prosecutor's Office, et al
Atlantic County, Docket No. BER-L-20832-15
Hon. Peter E. Doyne, A.J.S.C.
February 25, 2015
Click here for the court's decision.

Summary:  Plaintiff sought records related to the Prosecutor's auction of seized baseball memorabilia.  While several holdings were made, an interesting one regards the Prosecutor's decision to withhold access to the auction buyers' identities until after the Prosecutor contacted each buyer and received consent for disclosure of his or her identifying information.  Noting OPRA's "swift timeline for disclosure" policy, Judge Doyne rejected the Prosecutor's “wait-and-see” approach.  Judge Doyne also rejected the Prosecutor's attempt to have plaintiff's case dismissed because of technical issues with the complaint's verification and alleged deficiencies in the complaint.

Stay is granted despite County's "flagrant disregard" of court's order.

Michael Saudino, Bergen County Sheriff 
On October 18, 2014, I blogged about Paff v. Bergen County, et al, where Assignment Judge Peter E. Doyne ordered the Bergen Sheriff to provide me with an unredacted list of Internal Affairs Complaints against corrections officers who work in the Bergen County Jail.

Today, in a decision on-line here, Judge Doyne allowed the County to withhold disclosure pending the result of an appeal that the County has filed.  Interestingly, Doyne's decision points out several errors in the County's application, including a) the County's motion was filed two months late, b) the County made its application after the appeal was filed and c) that the County's motion was "nothing more than an opportunity to improperly augment the record for purposes of appeal."

Sunday, February 22, 2015

New OPRA lawsuit seeks police dashcam video

Update: 02/18/16 - Court orders release of video.

On October 19, 2014, Neptune Township (Monmouth County) Police stopped Maurice Mitchell's car and ended up arresting him for resisting arrest, obstruction of justice and driving under the influence.  I submitted an Open Public Records Act (OPRA) request to Neptune Township Clerk Richard Cuttrell for, among other records, the police dash cam video that allegedly captured Mitchell resisting and obstructing.  Cuttrell denied my request.

Although a few courts have held that police dash cam videos are disclosable under OPRA, it is still an emerging legal issue that will benefit from more litigation.  Accordingly, CJ Griffin of the Pashman Stein law firm in Hackensack, has filed a lawsuit on my behalf to force disclosure of the video.  The lawsuit, brief and other documents are on-line here.  Neptune's opposition brief and my reply brief are on-line here.

Saturday, February 21, 2015

Hainesport Mayor publicly chastises me for a comment I didn't make.

Hainesport Mayor Michael Fitzpatrick

In late 2014, I blogged about my common law right of access lawsuit that compelled the Township of Hainesport (Burlington County) to release a list of all public officials, employees and retirees who were receiving health insurance that was subsidized by Hainesport taxpayers.  While nothing illegal was discovered, the list did confirm that Hainesport taxpayers were paying about $27,000 toward health coverage for each of four elected Township Committee members who selected the "family plan." (The fifth member of the Committee, William M. Boettcher, selected the "married plan" reducing the taxpayers' burden in 2014 to approximately $21,000.)

At the Township Committee's January 6, 2015 meeting, Mayor Michael Fitzpatrick read a statement that took me to task for some "appalling" and "misleading accusations" that I had allegedly made regarding the health coverage.  The Mayor's statement, which runs for about three minutes, is on-line here in MP3 format.  Fitzpatrick had nothing good to say about me and characterizes me as an out-of-town interloper who "is only trying to sensationalize [myself] at the expense of our town."

In support of his accusations against me, Fitzpatrick quoted from "this gentleman's article" (referring to an article I authored) in which I allegedly wrote the sentence fragment: "corruption by revealing government employees that are improperly receiving health insurance."

I can't find any article where I wrote this. I did, however, find that sentence fragment in a December 12, 2014 Burlington County Times article (on-line here) written about my lawsuit by journalist Rose Krebs.  Krebs wrote:
According to court documents, Paff argued that "the information is useful to root out waste and corruption by revealing government employees that are improperly receiving health insurance."
I checked back through the filings and could not find that quote in any of the court papers filed by my attorney, Walter M. Luers of Clinton.  The only place that I could find it was on page 3 of Judge Ronald E. Bookbinder's tentative decision (online here) (Bookbinder's September 23, 2014 Order is on-line here) that he issued shortly before a July 16, 2014 court hearing.  Bookbinder wrote:
Paff summarizes the rationale applied in Michelson and Brewer. Paff argues that the information is useful to root out waste and corruption by revealing government employees that are improperly receiving health insurance.
Judge Bookbinder's decision correctly states why I want to publicly identify those who are receiving taxpayer-subsidized health insurance.  If taxpayers are paying employees' and officials' health insurance premiums, those taxpayers need to be able to make sure that ineligible people aren't being retained on the system.

In sum, I never accused anyone in Hainesport of being corrupt or doing anything illegal.  I just wanted to make so that the people of Hainesport could check and make sure that only eligible people were receiving health benefits.

Interestingly, several citizens arose during the January 6, 2015 meeting's public comment period (minutes are on-line here) and expressed their opinions on the health benefits issue and Mayor Fitzpatrick's statement. I've put MP3 files of each comment made at the links below.  Some of the citizen who spoke said or implied that the Township Committee has deceived the public by not disclosing that the Committee members and their families were receiving health insurance subsidies.

Citizens who spoke (click on their names to hear the audio):

Virginia Cliver
Pat Macken
Catherine McNelis
Laila Gilmore
Mark Murdy

Thursday, February 19, 2015

Somerville Judge may rule tomorrow on reinstating OPRA lawsuit against Franklin Fire District.

Yolanda Ciccone, A.J.S.C.
On January 20, 2015, I blogged about the lawyer for Franklin Township (Somerset County) Fire District No. 3 making an erroneous statement that led to Judge Yolanda Ciccone dismissing my Open Public Records Act (OPRA) lawsuit against the Fire District and the insurer.  My lawyer, Walter Luers of Clinton, has filed a motion for reconsideration which Ciccone will hear on Friday, February 20, 2015 at 9 a.m. in her Somerville courtroom.  The public is welcome to attend.

Wednesday, February 18, 2015

Mostly an OPRA win in Chatham Township: Court discloses settlement agreements but upholds denial of tort claim notice.

On August 14, 2014, I blogged about my Open Public Records Act (OPRA) lawsuit against Chatham Township (Morris County) seeking settlement agreements between the Township and two police officers and one of the officer's--a former sergeant's--filed claim that resulted in the Township paying $100,000 to cover "the Township's share in this settlement."  In a December 17, 2014 Order and written decision (on-line here), Morris County Assignment Judge Thomas L. Weisenbeck ruled that while I am entitled to both settlement agreements, the sergeant's tort claim notice may stay confidential.

Weisenbeck ruled that the settlement agreements were public records.  The settlement with Sergeant Michael Giannone (on-line here) shows that he received $200,000 with $100,000 coming from each the Township and its insurance carrier. Officer Edward Gibney and his wife Nancy (settlement on-line here) received only $100 cash in their settlement but the Township agreed to dismiss Internal Affairs Complaints No. AI30002 and AI30003 that were pending against Edward and permit him to use his accrued and unused 241.75 hours of vacation time, 60 hours of personal time 103.8 hours of comp time and 1,629 hours of sick him if he can present a medical note confirming his illness.  Elsewhere in the agreement, the Township acknowledged that the doctor's note that Gibney submitted was "sufficient to allow [him] to retire on October 1, 2014, based on a regular 2014 work schedule of 15 days per month, 12 hours per day."  Finally, the agreement also provided that Gibney "will be eligible for retiree health benefits under the Collective Bargaining Agreement if his application for retirement is approved by the State Pension Board."

Weisenbeck ruled that much of Giannone's tort claim notice must be kept confidential because it was "information generated . . . in connection with any sexual harassment complaint filed with a public employer."  Weisenbeck noted that "[t]he Legislature gave victims the opportunity to bring sexual harassment complaints to their public employers without public access."  The redacted version of the tort claim notice that I received from the Township before I filed my complaint is on-line here and the version I received after Weisenbeck's ruling is on-line here.  I include both because each contains unredacted material that is not present in the other.

My lawyer in the matter was Walter M. Luers of Clinton.

Thursday, February 12, 2015

Appellate panel raps GRC.

Glenn Katon submitted his records request to the New Jersey Office of Attorney General on July 16, 2012 and, after being denied, appealed the denial to the Government Records Council (GRC) on September 17, 2012. On July 23, 2013, the GRC affirmed the denial.  See, Katon v. NJ Department of Law and Public Safety, GRC Complaint No. 2012-267.

Today, a three-judge Appellate Division panel, in a decision that is on-line here, rapped the GRC and its former Executive Director Brandon D. Minde for accepting the Attorney General's "largely unresponsive, blanket and conclusionary assertion" as to the non-disclosability of 610 records that were responsive to Katon's request.  The panel also criticized the GRC for holding that records created after a decision was made were "pre-decisional" and for not requiring the Attorney General to provide privilege indexes for the documents it claimed were exempt from disclosure.  The panel ruled that the GRC acted in manner "inconsistent with the GRC's responsibilities."

The panel vacated the bulk of the GRC's July 23, 2013 order and remanded the matter back to it for a redo.

Burlington Prosecutor says that public body must request that newspapers publish meeting notices.

For the past several years, I have been operating under the belief that a public body, when notifying newspapers of its special meetings, needs only to provide notice of the meeting to two newspapers early enough so that the newspapers, if they so choose, could publish notice of the meeting at least 48 hours prior to the meeting.  While the Open Public Meetings Act (OPMA) and the case law make it clear that actual newspaper publication of a meeting notice is not required, I have been operating under the belief that public bodies are not even required to request the newspapers to publish the notices.  (For more information and case citations, please see my blog posts here and here.)

In a February 5, 2015, five-page letter to the Westampton Township Committee (on-line here), Burlington County Assistant Prosecutor Thaddeus E. Drummond said that the Township's tardy notices (the newspapers received notice of the December 12, 2014 meeting on December 10, 2014) were inadequate.  But, Drummond went on to write:
[Clerk Ryan] indicates that she did not intend, let alone expect, the Trenton Times to publish the notice as required by the OPMA. On the contrary, she notes in her certification that "Westampton Township has never requested or paid for actual publication to the Trenton Times" (emphasis in original). This is not a situation where the Township has made a reasonable effort to notify the public about a Special Meeting through publication only to have the newspaper fail to fulfill its civic duty. On the contrary, the Trenton Times was incapable of publishing notice of the Special Meeting because it was never directed to do so by Westampton Township. While actual publication may not be necessary for a public body to provide "adequate notice" as contemplated by the OPMA, merely transmitting a public notice to a newspaper with no direction to publish it does not constitute a "reasonable effort to notify the public".
So, according to Drummond, a public body cannot "merely transmit a public notice to a newspaper with no direction to publish it."  Drummond's position is, to my knowledge, the first of its kind in New Jersey.

Monday, February 2, 2015

Lawsuit seeks details on school principal who unexpectedly resigned after being interviewed by prosecutor.

Update: By order and opinion issued on June 25, 2015, Judge Mark A. Troncone denied access to the requested records.

Clinton attorney Walter M. Luers recently filed an Open Public Records Act (OPRA) lawsuit on my behalf for a county prosecutor's records regarding an investigation involving a former Atlantic County school principal who unexpectedly took a paid leave of absence on January 30, 2014 and resigned on March 31, 2014.

The Ocean County Prosecutor's Office (OCPO) has acknowledged that it had prepared a June 6, 2014 investigation report into allegations made against John Gibson.  The OCPO also acknowledged that Gibson was interviewed at the Little Egg Harbor Police Department on January 27, 2014, only a few days before Gibson took his leave of absence.  According to the prosecutor's December 8, 2014 letter that denied access to both the investigation report and the video of the interview, the interview regarded "Mr. Gibson's involvement with a minor."

Gibson was principal of both the Arthur Rann and Pomona schools in Galloway Township (Atlantic County) until his resignation.  According to the school district's web site, Pomona School is a preschool and Arthur Rand serves grades K through 6.  As of December 8, 2014, no charges had been filed against Gibson.

My lawsuit is captioned John Paff v. Ocean County Office of the Prosecutor, Docket No. OCN-L-252-15 and is on-line here.