Thursday, August 27, 2015

Bound Brook releases CAD report regarding teacher/student "suspicious incident."

I have previously blogged about my lawsuit, filed by Montclair attorney Richard M. Gutman that sought the narrative description from a police report of an October 29, 2014 incident involving a 24-year-old teacher named Kimberly Charnuska (identified as the "Suspect") and an unidentified juvenile (identified as the "Victim").

Today, I received a more narrowly redacted version of the report that discloses the narrative description as stating: "Dr. Gallagher reported a possible inappropriate relationship between a student and a teacher."  The version of the report that I was given before filing my suit had that sentence excised from it.  The lawsuit is now concluded.

Thursday, August 20, 2015

OPRA case seeks job applications filed by eight Camden County cops.

Update: In a January 8, 2016 Order, Judge Michael J. Kassel denied Hardwick's request for relief and dismissed his complaint.
On Thursday, September 24, 2015 at 9 a.m., Camden County Superior Court Judge Michael J. Kassel will hear argument in the case of Darnell Hardwick v. County of Camden, et al, Docket No. CAM-L-3039-15.  At issue is Hardwick's request for job applications filed by Camden County Police Officers Anthony Adair, Stephen Knatz, Lucas Murray, Anthony Rossner, Michael Swangler, Nicole Berry, Lance Carrington and Diana Deren, all of whom were hired in 2013.

While "personnel records" are typically confidential, Walter M. Luers, Hardwick's attorney, argues that the personnel exception in the Open Public Records Act (OPRA) contains an "exception to the exception" which requires disclosure of "data contained in information which disclose conformity with specific experiential, educational or medical qualifications required for government employment."  Thus, Luers argues, while the County may provide Hardwick with redacted job applications, the officers' applications must be disclosed to the extent that they reveal whether or not the officers satisfied training courses and met other job requirements.

Media and the public are invited to attend this hearing which will be held in the County Courthouse at 101 South 5th Street, Camden.  Those who plan to attend are cautioned to call the court at 856-379-2366 the day prior to hearing to ensure that the hearing hasn't been postponed.

Navigating New Jersey's Attorney Disciplinary System.

Many are not aware that the public is allowed to attend and observe disciplinary hearings against New Jersey attorneys.  This article is intended to provide an overview of the disciplinary system and help the public navigate it.

A citizen's first step is to learn which attorneys have active complaints against them.  This can be ascertained by reviewing the Office of Attorney Ethics' on-line Public Hearing List.  This list, which is updated monthly, is a snapshot of active ethics cases pending at the time the list is generated.  Since this list changes every month, I'll use the August 2015 list for the following examples.  Look through the list and see if you know of any attorneys on it.  (While uncommon, it is not unheard of for a public attorney, such as a municipal attorney or prosecutor to appear on this list.)

The 26th page of the list references a pending "Threatening Criminal Prosecution" charge against Camden County attorney Yaron Helmer.  The complaint, which was filed March 20, 2015 (resulting from an investigation that began on November 20, 2012), has been assigned docket number XIV-2012-0606E. In order to find out more about the case, one would need to obtain a copy of the complaint which would contain detailed allegations against the lawyer.

The disciplinary system is administered through several local ethics committee and a centralized Office of Attorney Ethics.  Contact information for all of these is on-line here.  The correct committee an interested citizen should contact is determined by the Roman numeral that begins the matter's docket number.  In Helmer's case, the docket number begins with XIV meaning that the proper office to contact for further information is the Office of Attorney Ethics in Trenton.  A citizen who wanted to know exactly what Helmer did to warrant this charge could send an e-mail to the OAE, such as:
Jason Saunders, Deputy Ethics Counsel
Office of Attorney Ethics
via e-mail only to jason.saunders@judiciary.state.nj.us
Dear Ms. Saunders: 
Would you please e-mail me the formal complaint in XIV-2012-0606E (Yaron Helmer) as well as Helmer's formal answer?
I have already completed this step on Helmer's case and have blogged about the charges against him.

The next step is to learn the date, hour and location of the next public hearing at which the case against Helmer will be presented.  In order to do this, complete this form and submit it to the same official to which you sent your request for the complaint and answer.  As you can see from an e-mail I received from OAE Director Charles Centinaro, the disciplinary system honors such requests and will notify a requestor in advance of the next hearing.

Wednesday, August 19, 2015

Court to decide whether public--or only law enforcement--can access Promis/Gavel's customized reports.

Andrew C. Carey
Middlesex County Prosecutor
On Wednesday, September 16, 2015 at 9 a.m., Middlesex County Assignment Judge Travis L. Francis will hear argument in Paff v. Carey, Docket No. MID-L-4240-15. This potentially very important case presents the following question:
Are records that can be queried from the data contained within the Promis/Gavel system--New Jersey's automated criminal case tracking system--obtainable under the Open Public Records Act?  
(Of somewhat lesser importance, the case also asks whether reports that have already been queried from Promis/Gavel are subject to disclosure under OPRA.)

Governments increasingly keep information in relational databases that are capable of producing custom reports that users specify.  Governments, however, often believe that the convenience and advantages of custom computerized reports should inure only to the government and not private citizens.

Private parties have legitimate needs for such reports.  Journalists and researchers would clearly find it useful to have access to customized reports showing, for example, all sexual assault arrests in Union County during 2011 through 2014 sorted by municipality. Such availability would greatly help journalists serve their audiences and researchers draw fact-supported conclusions.  As pointed out in the American Civil Liberty Union's and Electronic Frontier Foundation amicus brief filed in my case against Galloway Township,
Members of the public - who, lest we forget, ultimately pay for this technology - should be granted access to the same tools that public agencies use every day - specifically the ability to request a search of its electronic records for specific terms. Especially in this information age, any other result would effectively eviscerate the public's rights.
I am being represented in the matter by Walter M. Luers of Clinton.  Media and the public are invited to attend this hearing but are cautioned to call the court at 732-519-3413 the day prior to hearing to ensure that it hasn't been postponed.

Tuesday, August 18, 2015

Appellate Division shoots down Opderbeck ruling.

Senate Majority Leader
Loretta Weinberg
In an August 18, 2015 published opinion, a three-judge Appellate Division panel reversed Bergen County Superior Court Assignment Judge Peter E. Doyne's prior ruling that required the Midland Park Board of Education to make "copies of any appendices, attachments, reports, and other documents referred to in" the school board public meeting agendas publicly available on the Internet at least forty-eight hours prior to the meeting.  In his December 24, 2013 decision that accompanied the order that the Appellate Division today reversed, Doyne, who has since retired, said that the Midland Park school board's bare agendas were "virtually meaningless" without the attachments and appendices.

Back in 1975, when the Open Public Meetings Act (OPMA) was passed, the Internet was in it infancy and making an agenda's attachments publicly available would have required a significant amount of labor and paper.  The panel noted, however, that disclosing the attachments in today's world "merely requires adding an electronic 'link' to the Board's agenda, which is already posted on its official website." The ease of making this information available made it "tempting" for the panel to require public bodies to provide that link.

The panel found, however, that judges aren't allowed to "amend statutes using [their] own notion of what is in the public's best interest."  Rather, the panel ruled that the courts must enforce statutes as they are written and not as judges feel they ought to be written.  The panel defined a meeting agenda as merely "a list or outline of things to be considered or done."  Since Doyne's ruling required what the statute did not, it was reversed.

On the penultimate page of its decision, the Appellate panel "respectfully suggested" that the legislature consider updating the Meetings Act to reflect the technological changes that have occurred during the forty years since the Act's enactment.  Senate Majority Leader Loretta Weinberg (D-Bergen) has introduced S-781 which would make many important changes to the Meeting Act.  Unfortunately, The bill has hit a roadblock that Weinberg claims was erected by the New Jersey League of Municipalities.

The panel's opinion was written by Presiding Judge Jose L. Fuentes and joined by judges Victor Ashrafi and Amy O'Connor.

Sunday, August 16, 2015

Lumberton Township loses executive minutes again.

Back in 2009, I sued Lumberton Township (Burlington County) because the Township Committee wasn't promptly disclosing the non-exempt parts of its nonpublic (executive or closed) session minutes to the public.  During that action, I learned that Lumberton had completely lost the minutes of all executive sessions held prior to 2003.  The Consent Judgment that resolved my lawsuit took steps to keep Lumberton from losing any more of its executive session minutes.

Earlier this year, I learned that Lumberton again lost its executive session minutes from 2011, 2012 and 2013.  Since Lumberton, by failing to secure its minutes, violated the terms of my 2009 Consent Judgment, I, with Ted Rosenberg of Moorestown as my attorney, filed a Motion to Enforce Litigants' Rights.

In an August 14, 2015 letter, Lumberton Township Solicitor George M. Morris, who was not the Township Solicitor at the time the minutes were lost, described in detail how the 2011, 2012 and 2013 minutes were lost.
As for the missing 2011 through 20l3 minutes, I immediately made inquiry as to whether paper forms of the documents exist. My inquiry included direct discussions with the Municipal Clerk, former Municipal Solicitor and each member of the governing body. I learned that as a standard practice, the governing body and the solicitor were provided paper copies of the minutes before their meetings. They reviewed the minutes and approved the same. Because the minutes were approved, but not yet authorized for release, the paper copies were collected and destroyed. Unfortunately, no paper copy was retained for these specific years, The electronic versions of the minutes were left on a thumb drive and that drive was corrupted, The Township worked with IT specialists to restore the information but it was unrecoverable.
The hearing on my motion is currently scheduled for September 4, 2015.


Sunday, August 9, 2015

Supreme Court Committee mulls rule change to permit OPRA plaintiffs to remain anonymous.

Update 03/02/16: Supreme Court Committee rejects my proposal.

In early 2016, the New Jersey Supreme Court's Civil Practice Committee is likely to decide whether it should recommend an amendment to the New Jersey Rules of Court that would expressly allow plaintiffs in Open Public Records Act (OPRA) lawsuits to proceed in court anonymously.  Also at that time, the Committee's Discovery Subcommittee should decide whether the Committee should recommend a rule change that would require attorneys who submit OPRA requests to obtain records pertaining to pending litigation to also serve copies of those requests to the attorneys for all other parties in the litigation.

The first issue--whether the court rules should recognize the right of an anonymous OPRA requestor to sue anonymously--was prompted by my October 2, 2012 request to the Civil Practice Committee to consider such a rule.  In my request, I raised an August 17, 2012 unpublished trial court decision by Atlantic County Superior Court Judge Nelson C. Johnson in Anonymous v. Borough of Longport, Docket No. L-9552-11 (a copy of the decision is attached to my October 2, 2012 request at the link above).  In his decision, Judge Johnson ruled that OPRA requestors cannot proceed anonymously because the Supreme Court had not yet adopted a court rule granting them that privilege.  Judge Johnson stated that "OPRA has been the law for more than a decade . . . if our Supreme Court thought it appropriate to adopt new court rules to address the Act’s provisions; it was free to do so.”

In my request to the Civil Practice Committee, I pointed out that OPRA specifically grants citizens the right to make anonymous OPRA requests and that this right would be illusory if a records custodian by simply denying an anonymous request could force the requestor to either abandon the request or give up his or her statutory right to remain anonymous.  "OPRA’s grant of a right to remain anonymous means nothing if requestors must waive anonymity in order to enforce their OPRA rights," I wrote.

The Committee discussed my request on page 99 of its January 27, 2014 report to the Supreme Court.  The Committee decided to hold my request over for consideration in the next rules cycle.  Since the Committee works on a two-year cycle, its next report will be due in early 2016.  The other issue--whether attorneys who submit OPRA requests on their client's behalf should be required to serve copies on other attorneys in the case--is discussed on page 98 of the report.

Friday, August 7, 2015

Local Finance Board adjudicates some ethics cases.


Although the Local Finance Board (LFB) processes citizen complaints alleging violations of the Local Government Ethics Law, it does not place its decisions on-line.  And, the LFB doesn't even notify the public when a decision is reached that disposes of an ethics case.  Since ethics complaints sometimes take years to go through the LFB's process, the public has no ready way to find out which cases have recently closed and thus become publicly disclosable.  I obtain this information the best I can by periodically comparing snapshots of the LFB's case rosters, which I obtain through OPRA requests, to see which cases have closed during the interval between the creation dates of both rosters.  I then submit additional OPRA requests for the case files on those recently closed cases to see who was involved and whether the accused public official was found to be in violation.

This, of course, is a very tedious process, but, given the LFB's apparent reluctance to be more transparent, it's the only way of getting this information out the public.

Following is a list of cases.

Violations:


LFB found that Vanaman violated the Local Government Ethics Law when he simultaneously served as Public Safety Director as an elected member of the City Commission and as secretary to the Millville Volunteer Fire Department, which was a "substantial conflict with the proper discharge of his duties in the public interest."  $100 fine was imposed.  It is presently unknown if Vanaman appealed the February 13, 2015 determination.

The complainant was Robert McQuade.


LFB found that Dilts used her official position to secure an unwarranted privilege or advantage for herself or others when she used municipal resources to campaign for candidates prior to the November 2010 School Board elections and November 2012 Township Council elections. $100 fine was imposed.  It is presently unknown if Dilts appealed the March 13, 2015 determination.

The complainant was Martin Swim.


LFB found that Mayor Gerbounka participated in City Council caucus meetings with Council members where a proposed resolution that would authorize a Jones Act Assignment Sale of municipally held tax title liens, including a tax sale list of properties, was discussed.  During the discussions, the issue of whether or not a bid offered by Cherokee Equities on a property owned by Councilman John Sheehy and his brother Stephen Sheehy, should be rejected was also discussed.  Mayor Gerbounka executed the resolution which accepted all bids with the exception of rejecting the bid made by Cherokee Equities on the Sheehy property.  The LFB imposed a $100 fine on Gerbounka.

LFB found that Brown, Sheehy, Armstead, Cosby-Hurling, Kolibas, Koziol, Kuczynski, Medina, Moore, Sadowski, Yamakaitis, Gerbounka, voted to approve a resolution which rejected a bid offered by Cherokee Equities on a property at 200 East St. Georges Avenue which is owned by fellow Councilman John Sheehy and his brother Stephen Sheehy. Armstead, Cosby-Hurling, Kolibas, Koziol, Kuczynski, Medina, Moore, Sadowski, Yamakaitis were each fined $100, but the fine was waived. Brown and Sheehy were fined $100 and $500, respectively, and the fine was not waived.  It is presently unknown whether any of the respondents appealed the February 23, 2015 determination.

The complainant was Ann Rubin of the Union County Prosecutor's Office.


LFB found that Gloria Oh, a member of the Borough Council, and Jason Oh, a member of the Borough's Sign/Facade Committee, failed to disclose certain financial interests OL Home Builders, LLC and Gloria Oh Law Group, LLC, and "potentially failed" to disclose interests in Fort Lee Title Agency, LLC and Good Restaurant, Inc. in their Financial Disclosure Statements.  The were also both found to have failed to disclose Mr. Oh's income from American Accu Services, LLC.  A fine of $100 was imposed on each of them.  It is presently unknown whether any of the respondents appealed the March 13, 2015 determination.

The complainant was Lauren Eastwood.

Settlements:


The LFB entered into settlement establishing that Muller, who served as a member of the Land Use Board (and the Borough Council), was the co-listing agent to a 32.5 acre tract of land adjacent to his residence.  On September 14, 2010, Mr. Muller participated in the public comment portion of the Borough Council meeting advocating the re-zoning of the property into smaller, developable parcels of land.  As a council member, Muller on January 24, 2012 moved and voted in favor of a resolution approving a sewer connection to the same 32.5 acre tract of land. The LFB also found that Muller voted against a resolution that would have allowed the Borough to acquire property that was within 200 feet of a Willow Avenue property Muller owned.  Under the settlement, the total fine imposed against Muller was $600.  Muller's attorney in the matter was Jeffrey S. Chiesa.

The complainant was  John L. Sweeney.

Dismissals:


This case goes back to 2007, but "an internal audit of local Government Ethics Law complaints revealed that the Board had not concluded its investigation of Complaint C07-031, filed under a previous administration" therefore causing the complaint to be resolved in 2015.  Piner, the Parking Authority's executive director, was accused of  "hir[ig] business entities in which [she or her] husband had an interest to provide services to the Parking Authority and then submitted invoices for payment for the services rendered."

Yet, "in light of the time that has passed between the filing of the complaint and the present status of the complaint, as well as the current policies and practices of the Toms River Parking Authority which would prohibit such a recurrence of the prohibited activity. the Board has elected to dismiss this complaint."


Complaint alleged that Schaub "has in his employ, Alice Schaub (wife) as his secretary for several years."  It was further alleged that "Mr. Schaub . . . wrote the Employee Handbook. This handbook allows him to accumulate 365 days of unused sick/vacation days and may receive a lump sum payment upon termination. The handbook also requires the fire district to provide 98.5% of the retiree's and spouse post-retirement medical insurance premium payments and also 98.5% of Medical reimbursements."

The complaint was put on hold because of a simultaneous investigation being conducted by the Office of State Comptroller ("OSC"). In April 2014, after the OSC issued its report, Mr. Schaub passed away.  This resulted in a dismissal of the ethics complaint.

The complainant was Dan Pagano.


Complaint alleged that Kruk left blank fields on his Financial Disclosure Statements. Complaint dismissed because "the allegations do not rise to the level of an ethics violation."

The complainant was Sidney Kanter.


Complaint alleged that Dow, who serves on the Township Council,and Belton, who serves both on the Township Council and as President of the Library Board of Trustees, failed to file Financial Disclosure Statements.  Complaint also alleges that Belton "spoke at a Council meeting and voiced [his] support for the library."  The LFB dismissed both complaints after finding that "Council members can express their support for a township library" and because "a significant amount of time has passed and the Board has decided to actively pursue non-compliance of FDS filings under the newly created electronic filing system on a state-wide basis."

The complainant was "Anonymous"


Complaint alleged that Keffner allowed a church, at which his wife was an employee and a parishioner, to hire auxiliary police for the Festival instead of duly sworn police officers for security at its 2011 Parish Festival.  The LFB noted that "the PBA filed a grievance against the Township relating to the contractual violation arising from the alleged employment of the auxiliary police as security for the Festival. Board Staff contacted the Complainant on multiple occasions in an attempt to determine the outcome of the grievance, along with other supporting documentation. No response was received."  Since Complainant has been unresponsive to Board Staff's written requests for information and documentation necessary to verify the allegations and make an appropriate determination in this matter," the LFB dismissed the complaint.

The complainant was Erik Knudsen


Complaint alleged that Love distributed a letter around September 22, 2011 in which statements were made concerning the Mayor such as "the MUA cannot stop the Mayor from disseminating inaccurate information and causing unnecessary fear in her re-election campaign." It was also alleged that your actions violated the State Ethics Commission's guidelines and violated MUA personnel policies.

After a preliminary investigation of the facts and circumstances relevant to this complaint, the LFB determined to dismiss the because the allegations had no reasonable factual basis. The LFB also noted that itdoes not have jurisdiction over possible violations of State Ethics Commission's guidelines and local personnel policies.

The complainant was Bettina Bieri.


Complaint alleged that Merlino attended a meeting at the Township Municipal Building with a Township construction official and a local land developer in her capacity as the real estate agent for the developer in August 2012.  The LFB dismissed the complaint after learning from Merlino that she is the sole owner and licensed broker of Home & Suite Realty in Atco who in August 2012 extended a courtesy to another locally based real estate salesperson by traveling to a vacant parcel of land in the Louden section of Waterford Township to speak with a gentleman from Gloucester County who professed to have an interest in developing the property for residential construction.

Merlino said that she had no personal, professional, or business relationship whatsoever with the gentleman. Upon encountering the gentleman at the property, she said that she learned that he had previously been in contact with an employee of Waterford Township and that the gentleman told her he had made an arrangement to review local land use ordinances at the Township Municipal Building. He informed Merlino that he did not know where the municipal building was located and she offered to lead him over to the municipal building, where she introduced him to Edward Toussaint, the Township Zoning Official.  Merlino said that she did not attend the meeting or participate in discussions.

The complainants were William Richardson and William Hurley.


Complaint alleged that Polistina voted to approve an amendment to the Northfield Land Use Ordinance (Ordinance 9-2012) involving property owned by his employer, Nick Droboniku.  Similarly, Carew was accused of voting for the same ordinance when Droboniku previously served as his campaign manager/treasurer. The LFB dismissed the complaint upon determining that the change to the zoning of Mr. Droboniku's property did not impact him to any greater extent than the zoning changes to the balance of the properties throughout the municipality.

The complainants were Jimmy Martinez, Melvin Nathanson, Mark Howell, Dan Mahec and Pete DaPrato.


Complaint alleged that DiDomenico voted on a salary ordinance, Ordinance 12-17, which affected his wife, the Administrative Clerk for the Department of Finance/Taxation/Water.

The LFB dismissed the complaint after finding that DiDomenico's wife's title was covered under a bargaining unit and the salaries for those titles had already been established by a valid contract. The contract ,between the Borough of Woodland Park and International Brother of Electrical Workers was passed by the Borough on May 19, 2010 in Resolution R10-164 and was valid from January 1, 2010 through December 31, 2016. The LFB noted that DiDomenico had abstained from the vote.

The complainant was Keith Kazmark.


Complaint alleged that Horton ordered Borough Zoning Officer James Fania to remove lawn signs from properties along Highland Avenue that displayed messages opposed to a local hospital and used Borough Funds to purchase gift cards for distribution to Borough employees from a shop operated by the Mayor's wife.

Borough Administrator Margaret Gould and Zoning Officer James Fania both submitted notarized affidavits claiming that Horton did not direct them to remove the signs on Highland Avenue.  As to the gift cards, Horton explained that he and his wife personally paid for 13 $20 gift certificates from Second Chance--the gift/thrift shop affiliated with Matheny Medical and Educational Center--for a total of $260.  Horton's law firm used to serve as Matheny's bond counsel and Horton's wife served as a member of the Matheny's Board of Trustees and as General Manager for Second Chance. Horton submitted copies of the cancelled check used to pay for the gift certificates and advised that the Borough Council declined his request reimburse the $260.

The complainant was Ruth Williams.


Complaint alleged that all the respondents failed to disqualify the Mercer County Catholic Youth Organization (CYO) as a bidder to operate the township owned Bromley Neighborhood Service Center although Martin Flynn was both a member of the CYO Board of Directors and the Township Director of Health, Recreation, Seniors, & Veterans Services.  The LFB dismissed the complaint because here is no basis for the CYO to be disqualified from the consideration process simply because one Township Employee is a member of the Board of Directors.

The complainant was Dan Keelan.


Complaint alleged that Sooy did not recuse himself from a closed session meeting of the governing body held to discuss a potential settlement with an employee, Sherry Trout, although he was the subject of a separate grievance filed by her. He was also accused of "rely[ing] on other legal counsel in city matters."  The LFB ruled that "the simple filing of a grievance by one party did not rise to the level needed to create a prohibitive involvement that would have necessitated" Sooy's recusal and that City Commissioners "are free to disagree with the legal advice of the City Solicitor . . . at [their] own peril."

The complainant was Joseph M. Chiarello.


Complaint alleged that Boccino, as Principal Planner, Land Acquisition for the Somerset County Parks Commission and Freeholder Board, issued an inaccurate press release regarding the acquisition of Open Space by the Board of Freeholders which stated that Franklin Township has agreed to contribute monies to the acquisition and that the Board had entered into a contract for the property. The complaint alleged that Boccino issued this press release to help a Freeholder and a candidate for Freeholder in their upcoming elections.

The LFB dismissed the allegations after finding that Somerset County and Franklin Township had a verbal understanding that Franklin Township would contribute monies to the acquisition and contracts were being exchanged and signed at the time of the press release. In addition, the LFB determined that the connection between a county employee issuing a press release and securing an unwarranted privilege for Freeholder candidates was tenuous.

The complainant was Margaret Schaffer.


Complaint alleged that Boccino advised the Sewerage Authority that he was lawfully permitted to have a three year term when state law mandates a one year term.  The LFB dismissed the complaint for lack of jurisdiction because the complaint requires a legal interpretation of the Local Public Contracts Law "and not necessarily the LGEL's prohibition against using or attempting to use one's official position to unwarranted privileges or advantages for oneself or others."

The complainant was John Paff.


Complaint alleged that Savini failed to report income derived from a Marco Island, Florida property he owned on his 2013 Financial Disclosure Statement.  The LFB dismissed the complaint because there is no definitive evidence that Savini either owned or derived an income from the property in Florida.

The complainant was "Anonymous."


Complaint alleged that Kenny falsified an automobile accident report by concluding that the complainant admitted fault in the accident. The other party in the accident was a retired Brick Township employee.  It was alleged that the Township Police Department, after complainant filed an Internal Affairs complaint, amended the accident report.  The complainant alleged that Kenny tried to secure an unwarranted privilege to the other driver in the accident.

The LFB determined that "disputes involving motor vehicle accidents, traffic violations, and police reports generally fall within the purview of the municipal and state courts which deprived the LFB of jurisdiction to adjudicate such a matter. Therefore the LFB dismissed the complaint, finding that there is no reasonable factual basis upon which to find a violation of the Local Government Ethics Law and that there was no indication that Kenny had a prior relationship with either party in the accident which might give rise to a prohibitive involvement.

The complainant was Joseph A. Leopardi.

Other Dispositions:


Complaint alleged that Aschenbach compromised the "fair-and-open"  public contracting process by trying to get Bob Renaud appointed as Township Attorney."  The LFB dismissed the case finding that it did not have jurisdiction over this matter because it involves alleged violations of the Local Public Contracts Law d/or Pay-to-Play Law."

The complainant was Mark Smith


Complaint made unknown allegations against the Mayor, but those allegations are probably related to the issues discussed in "Vineland council president addresses conflict with mayor, recent controversies," South Jersey Times, Don E. Woods, February 17, 2014. The LFB, noting that its rules prevented it from considering matters that under litigation, dismissed the complaint without prejudice, meaning that it can be brought anew when the litigation is resolved.

The complainant was Anthony Fanucci.

#

Thursday, August 6, 2015

Local Finance Board releases list of 2,632 local government officers who received violation notices.

My July 28, 2015 blog entry reported that the New Jersey Local Finance Board (LFB) had issued thousands of violation notices to Local Government Officers (LGOs) who failed to file their Financial Disclosure Statements for 2014.  Today, I received an Excel file of the LGOs to whom violation notices have issued.

I have uploaded the lists in three formats: Excel, PDF, and the Excel file as received from the LFB.  I recommend viewing the first two files because I've cleaned them up a bit to be more readable and viewer-friendly. I've included the raw file received from the LFB for those who want it. My version of the list contains two parts.  The first 2,504 lines of data represent the notices of violation issued to municipal LGOs and lines 2507 through 2634 represent those issued to county LGOs.

The LFB issued the following disclaimer regarding this data:
Please note that this list includes Local Government Officers (LGOs) who had not filed their Financial Disclosure Statement (FDS) by September 5, 2014.  However, not all LGOs who had not filed were issued NOVs. Notices of violation (NOVs) were sent to Sussex and Cumberland County non-filers of the specific position listed in October 2014 and the balance of the NOVs were sent in March 2015.  Appeals have been received and are still being processed.  The appeal information noted on the chart may not be complete.  Individuals may have timely filed the FDS for other positions in local government.  Additionally, NOVs were sent to some individuals who were marked as inactive; these were withdrawn by the Local Finance Board (LFB).  All NOVs are based on rosters created by the local government entity representatives.  The LFB cannot confirm the validity of the information on the rosters.

Wednesday, August 5, 2015

Gloucester Township Council suppressed citizen's speech, apparently based on its content.

During its July 27, 2015 public meeting, the Gloucester Township (Camden County) Council voted to end the public comment portion of the meeting for the stated reasons of one speaker's comments not having "something to do with government" and for not being sufficiently "respectful to others."

The video of the meeting shows that resident Tom Crone, a Republican, began addressing the Democratic-controlled Council at 28:15 on the video.  At about 41:40 Crone began speaking as spokesman for the Gloucester Township and Camden County Republican parties about "an unwholesome and unsavory incident . . . that involved" officials from Council Vice President Orlando Mercado's and his running mates' reelection campaign.

Mercado immediately challenged the propriety of Crone's comments as not being "government related."  When Crone defended his comments as being "government related," Mercado stated that Crone had gone over his time limit for speaking.  After Crone sought a ruling from Council President Glen Bianchini as to whether he should prevented from commenting further, Mercado made a motion to close the public portion of the meeting.  That motion was seconded and ultimately passed by the Council.

N.J.S.A. 10:4-12 of the Open Public Meetings Act (OPMA) requires municipal governing bodies and school boards to set aside a period of time at each meeting "for public comment on any governmental or school district issue that a member of the public feels may be of concern to the residents of the municipality or school district."  Crone's comments were offered during that portion of the meeting.

The Gloucester Township Council objected to Crone's comments on two grounds: Lack of respectfullness and not pertaining to a governmental issue.  In 2010, the New Jersey Supreme Court issued a ruling in the case of Besler v. Board of Educ. of West Windsor-Plainsboro Regional School Dist., 201 N.J. 544 (2010).  That case concerned a First Amendment lawsuit filed against the local school board by a commenter who was prevented from speaking during a public comment period at a public meeting.

The court noted on page 575 that "the public comment period was a time for citizens . . . to make known their opinions to their representatives, and to petition for redress of grievances” and that citizen comments may be "vehement, caustic, and sometimes unpleasantly sharp attacks."  The court further noted that "free speech is not for the fainthearted" and that "[public] officials must be thick-skinned enough to tolerate the uninhibited and robust debate on public issues that the First Amendment demands."  So, it appears that Bianchini's ruling, to the extent that is suppressed all but "respectful" comments would not survive a First Amendment challenge.

Turning to the Council's claim that Crone's comment did not sufficiently "pertain to a governmental issue" it seems to me that speech related to a sitting Council member's alleged participation in "criminal conduct" is sufficiently tethered to public affairs to be a "governmental issue" under the OPMA.  Mercado's alleged decision to involve himself in criminal or unsavory conduct could very well cause citizens to want to publicly question his fitness to hold office.  Moreover, I don't believe that it is tenable for the Gloucester Township Council, given that its own members are the ones likely to be criticized, to establish itself as the arbiter of whether comments pass the "governmental issue" test.

The Supreme Court, in Besler, noted that while a public body may "may control its proceedings in a content-neutral manner," the law burdens the public body with "showing that its restriction of speech in a public forum was done for a constitutionally permissible purpose."  From my view of video, the Council's decision to close the public comment period was grounded not on Crone having exceeded the time limit or upon other neutral reason, but precisely because Mercado and the Council did not like the content of his speech. Council President Bianchini conceded as much when he stated at 51:06 that he is "not going to allow political talk to continue here.  If it has something to do with government, I'll allow it."  He then affirmed that he has "never been one to hold to the clock and ]that he] won't hold it unless its not going to be proper.  Bianchini then stated that comments that "were not respectful to others" will not be allowed.

I contend that Crone's speech was suppressed for an impermissible reason, i.e. it was not speech that the Gloucester Township Council wished to hear or have the public hear.  As the court noted, a public body “may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views."

Also of note is that the Council's decision to close the public comment period may have violated the rights of people who wished to speak

Monday, August 3, 2015

Township's failure to say whether responsive records exist cost taxpayers $10,000.

As reported in my March 25, 2015 article, I had to file a lawsuit against Stafford Township (Ocean County) because Township officials wouldn't tell me whether they possessed documents that were responsive to my Open Public Records Act (OPRA) request.  Now, a judge has found that the Stafford taxpayers must pay a total of $10,369.14 to cover my costs and attorney fees even though it was ultimately found that the Township possessed no responsive records.

When responding to an OPRA request, a custodian must identify for the requestor any records on file that are responsive to the request even if the custodian believes that the responsive records are exempt from disclosure. It is impermissible for a custodian to tell a requestor: "We may or may not have records that are responsive to your OPRA request.  If we do have records, they are all exempt from disclosure."  Such a response doesn't give requestors enough information to determine for themselves whether or not the custodian's claims of exemption are legally justified.

In his July 24, 2015 written decision upholding the $10,369.14 cost and fee award, Superior Court Judge Mark A. Troncone held that Township Attorney Christopher Dasti, who handled my OPRA requests, "provided no information about the documents that [Stafford] withheld but simply argued the confidentiality requirements under the personnel record exemption. Such action left [Paff] with no information or opportunity to advocate his position and assess whether he had a recognizable claim under the law."  Troncone's reasoning is similar to that of former Morris County Assignment Judge Thomas L. Weisenbeck in his April 11, 2014 ruling in Tucker Kelly v. Borough of Riverdale, et al, Docket No. MRS-L-524-14.

After I had filed my lawsuit, Dasti produced a certification from Stafford Police Captain Thomas Dellane that confirmed there were no records that were responsive to my OPRA requests.  Judge Troncone held that Dellane's certification "is the first time [Stafford] adequately responded to [Paff's three February 2015 requests."  Since my OPRA lawsuit was the catalyst that caused Stafford to give a clear and definite response to my records request, I was the "prevailing party" and am entitled to my attorney fees and costs.  My attorney in the matter was CJ Griffin of Hackensack,