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incorrectly said that, with regard to Assemblyman Danielsen, that both the subpoena and the motion to quash were withdrawn. In fact, it was only the motion to quash that was withdrawn.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.

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