Tuesday, September 29, 2015

Parents sometimes need to enforce special education order and consent judgments.

The Office of Special Education, a unit within the New Jersey Department of Education, has a procedure for parents (and their attorneys) to follow when a local school district does not abide by consent judgments and orders that arise out of Individuals with Disabilities Education Act (IDEA) litigation.  That procedure is set forth on the 39th page of the Parental Rights in Special Education manual (or 43rd page of the PDF).

In order to see how often parents need to avail themselves of this procedure, I made an Open Public Records Act (OPRA) request for "all 'Parental Requests for Enforcement of a Final Decision issued by the Office of Administrative Law' filed with the Office of Special Education so far in 2015."  In response, I received documents from the following nineteen cases.  The Office of Special Education denied access to seven additional cases in their entirety claiming an exemption under the Family Educational Rights and Privacy Act ("FERPA") 20 U.S.C. Sect 1232g.

Tuesday, September 15, 2015

Lumberton agrees to new executive session minutes procedure.

In my August 16, 2015 article, I wrote that attorney Ted Rosenberg filed a Motion to Enforce Litigants' Rights against Lumberton Township (Burlington County) because it had--for the second time--lost the minutes of several of the Township Committee's nonpublic (closed or executive) meetings.

On September 8, 2015, Superior Court Judge Marc M. Baldwin signed off on a Consent Order that the Township and I agreed to.  This Consent Order, which is permanent, prescribes a procedure that should ensure that closed minutes are never lost again. It also requires executive session minutes to be approved promptly, reviewed annually and posted on the Township's website.

Lumberton also agreed to pay Rosenberg $1,610 for legal services connected with filing the enforcement motion.

Sunday, September 13, 2015

Lawsuit seeks identity of State Trooper who sought sex from target of arrest warrant.

Update 03/02/16: We lost the case.

At 10 a.m. on Wednesday, October 14, 2015, Mercer County Assignment Judge Mary C. Jacobson will hear argument in Paff v. Department of Law and Public Safety, et al., Docket No. MER-L-1685-15.  This Open Public Records Act (OPRA) and common law right of access case was filed on my behalf by Walter M. Luers of Clinton.

The lawsuit challenges the New Jersey State Police decision to suppress the identity of a State Trooper who resigned or was fired for offering to not execute an arrest warrant in exchange for the warrant's target having sex with him.  The case also seeks the Trooper's resignation letter and a plea agreement that resolved internal charges against the Trooper.  No criminal charges were filed against the Trooper.

The matter will be heard on the 4th floor of the Mercer County Courthouse, 400 S. Warren St, Trenton.  Members of media and public are encouraged to attend and observe but are advised to call the court at 609-571-4499 the day prior to confirm that the hearing date and hour have not changed.

Thursday, September 10, 2015

NJ Assembly bill seeks to require GRC's initial mediation and adjudication of records disputes.

On June 22, 2015, the Assembly Appropriations Committee favorably reported Assembly No. 4435, introduced on May 11, 2015 by Assemblymen John J. Burzichelli (D-West Deptford) and John DiMaio (R-Bridgewater).  If passed, Open Public Records Act (OPRA) requestors who are denied access to a record would no longer be able to take their disputes directly to Superior Court.  Rather, requestors would have to file their complaints with the Government Records Council (GRC) and go through the GRC's mediation process.  If the mediation does not resolve a complaint, the GRC would adjudicate the dispute and "issue an advisory opinion in the matter as to whether the particular type of record is a government record which is accessible to the public."

After completing these steps, an aggrieved requestor would be allowed to file a Superior Court action five days after serving a notice of intent upon the government agency which denied the request.

The bill also seeks a change that will require a public agency to pay a requestor's attorney fees "in the event the Government Records Council opinion determined that the government record had been improperly denied."  According to a strict reading of the proposal, a requestor who wins in Superior Court after losing before the GRC would not be able to get his or her attorney fees paid by the government agency which denied the request.

Friday, September 4, 2015

Englewood Cliffs Mayor violated ethics law, fined $100.

After a three and a half year investigation, New Jersey's Local Finance Board (LFB) concluded that Englewood Cliffs Mayor Joseph C. Parisi, Jr. violated the Local Government Ethics Law (LGEL) and assessed a $100 fine against him.

The matter was originated by a March 7, 2012 complaint filed by John Paff and the New Jersey Libertarian Party.  The complaint alleged that Parisi, who served on the Board of Directors of North Jersey Community Bank and as Chairman of Otterstedt Insurance Agency, failed to recuse himself from the Borough Council's 2010 consideration of a $9.8 million Board of Education budget that voters had rejected.  At the time of the discussions, the Board of Education had active accounts with both North Jersey Community Bank and Otterstedt Insurance Agency. The record reflects that Parisi advocated making "no cuts" the the Board's budget.  The LFB's Notice of Violation along with the complaint are on-line here.

The LFB found that Parisi "had a direct or indirect financial or personal involvement that might reasonably be expected to impair his objectivity or independence."  The Local Government Ethics Law, N.J.S.A. 40A:9-22.9 sets the minimum fine at $100 and the maximum at $500.

Wednesday, September 2, 2015

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.

Collene Wronko v. New Jersey Society for the Prevention of Cruelty to Animals
Middlesex County, Docket No. MID-L-11721-15
Hon. Travis L. Francis, A.J.S.C.
August 28, 2015
Click here for the court's decision.

Summary:  New Jersey Society for the Prevention of Cruelty to Animals, which conceded that it is subject to the Open Public Records Act (OPRA), cannot charge a "labor fee" for fulfilling Ms. Wronko's request.  Ms. Wronko declared prevailing party entitled to attorney fees and costs.

Update:  Another decision, here, holds that the county-level SPCA organization is likewise subject to OPRA.

Tuesday, September 1, 2015

Administrative Judge cites Fire District for Meetings Act violation, requires two lawyers to testify.

 Update September 2, 2015:  I have received new information: Judge Kennedy incorrectly said that, with regard to Assemblyman Danielsen, that both the subpoena and the motion to quash were withdrawn. In fact, it was only the motion to quash that was withdrawn.  During the hearing, the Fire District agreed to produce Danielsen for trial.
In an August 25, 2015 ruling, New Jersey Administrative Law Judge John S. Kennedy held that a Board of Fire Commissioners in Franklin Township (Somerset County) violated the Open Public Meetings Act (OPMA) when one commissioner forwarded two e-mails to all the other commissioners.  In the same matter, Judge Kennedy held that subpoenas requiring two lawyers to testify in an Open Public Records Act (OPRA) matter should not be quashed.

Judge Kennedy's decision arose out of a Denial of Access Complaint Jeff Carter filed with the Government Records Council (GRC) after Franklin Township Fire District No. 1 denied him access to fifteen e-mails that pertained to a personnel complaint filed by Debi Nelson.  Nelson is Carter's sister and the Fire District's former administrative aide.  Carter is being represented by Walter M. Luers of Clinton.

Judge Kennedy ordered disclosure of five of the fifteen withheld e-mails  He ruled that the e-mails dated August 8, 2010 and August 9, 2010 would have been exempt except for the fact that they were sent "from one commissioner to all other commissioners."  According to Judge Kennedy's ruling,
"[t]his is a violation of the Open Public Meetings Act (OPMA) which requires proper notice of a public 'meeting,' discussion, etc., between an effective majority of the fire commissioners conducting 'public business.' The OPMA is specific in its definition of a public body 'meeting' to include any gathering whether corporeal or by means of communication equipment which is attended by or open to all members of the public body held with intent to discuss or act upon a specific public business of that body."   I CONCLUDE that the August 9, 2010 e-mail and the August 8, 2010 e-mail attached thereto violated OPMA and therefore access to those em ails shall be GRANTED."
Judge Kennedy also ruled on the Fire District's June 25, 2015 Motion to Quash the subpoenas to testify that were served upon current Commissioners Jason Goldberg and James Wickman; former Commissioners Bernard Pongratz and (now Assemblyman) Joseph Danielsen as well as attorneys Richard Braslow (misspelled "Barlow" in Judge Kennedy's ruling) and William Cooper who previously served as the Fire District's attorney but is now the Somerset County Counsel.  Prior to Judge Kennedy's ruling, the parties agreed that Danielsen's testimony was not needed and that Goldberg, Wickman and Pongratz would give depositions with the costs split between the parties.

The parties could not agree on whether Cooper and Braslow are required to testify.  Judge Kennedy ruled that although two lawyers' testimony "will surely be protected by the attorney-client privilege and the work product privilege, . . . there may be questions that can be asked that are probative and do not violate the aforementioned privileges."  Accordingly, he denied the Motion to Quash as it pertained to Braslow and Cooper.

Judge Kennedy's decision still needs to be approved by the GRC and is subject to appeal by the Fire District.