Friday, September 30, 2016

Settlement letter ruled not to be exempt under OPRA. Caldwell ordered to pay $5,200 in attorney fees and costs.

On September 14, 2016, Essex County Superior Court Judge Frank Covello issued a verbal ruling that a June 22, 2016 settlement confirmation letter exchanged between the Borough of Caldwell (Essex County) and the plaintiff in a lawsuit against the Borough was disclosable under the Open Public Records Act (OPRA) even though the settlement had not been formally approved.  On September 27, 2016, Judge Covello ordered Caldwell to pay the plaintiff's attorney, CJ Griffin of Hackensack, $5,199.84 in court costs and attorney fees.

Background on the case, Libertarians for Transparent Government (LFTG) v. Borough of Caldwell, et al, Docket No. ESX-L-5197-16, is on-line here.

Sunday, September 25, 2016

Released documents claim that former Commercial Township Mayor used racial slur against fellow Township Committee member.

A harassment complainant, whose name has been redacted in accordance with a court's order, claimed that former Commercial Township (Cumberland County) Mayor Judson Moore said that he couldn't rely on Township Committeeman Fletcher Jamison's support in resolving a "horrible union contract" because Jamison would "get in his ni**er mind frame and does not know how to make any decisions."  Moore flatly denied using the slur against Jamison, who is African-American, and said that if the complainant "made that allegation, then he's lying."

Committeeman Ronald L. Sutton, Sr. then interjected his recollection of Moore having said "that the black was coming out in" Committeeman Jamison because Jamison was opposed to buying a snow plow.  When asked by Township Solicitor Thomas Seeley whether Sutton's comment was accurate, Moore is quoted as saying "I don't know what he's talking about."  After this exchange, Jamison said that he thought Moore did use the racial slur and that because of it "our friendship changes and I just don't, I'll be honest with you, I don't feel comfortable around you."

This candid exchange is taken from sixty-three pages of redacted closed meeting minutes that the Township was ordered to disclose in response to an open government organization's June 6, 2016 Open Public Records Act (OPRA) lawsuit.  The minutes are very detailed and provide insight into not only the political machinations within this close-knit, rural community that borders the Delaware Bay, but also into the personal relationships among Township officials and employees, many of whom have known each other their entire lives.

By way of background, Libertarians for Transparent Government (LFTG), a New Jersey non-profit corporation, filed suit against the Township on June 6, 2016 in order to learn the nature of four harassment complaints that caused Mayor Judson Moore's abrupt resignation on March 12, 2016.  On September 1, 2016, Cumberland County Assignment Judge Georgia M. Curio ordered the Township to disclose two sets of closed minutes and a Memorandum of Understanding between the Township and Moore.  In addition to compelling disclosure of these documents, Curio also required the Township to pay the attorney fees of LFTG's lawyer, Hackensack attorney CJ Griffin.

The Memorandum of Understanding (MUA) is straightforward.  It prevents Moore from seeking public office or employment in the Township and forbids him from making "excessive or multiple OPRA requests" or visiting the municipal building except for "general business as a township taxpayer."  The MUA, which was signed by each of Moore's harassment complainants, specifically forbids Moore from harassing the complainants, as well as their friends and relatives, and establishes mediation if Moore violates any of the MUA's provisions.

The Township Committee's February 25, 2016 and March 11, 2016 closed meeting minutes are more meandering and are more difficult to follow because a significant number of words and phrases have been redacted from them.  At its February 25th closed meeting, at which Mayor Moore was not present, Committee members Sutton and Jamison and Township Clerk Hannah E. Nichols and Solicitor Seeley discussed the harassment complaints that four Township employees brought against Moore.  At the March 11th closed meeting, Sutton, Jamison, Nichols and Seeley were joined by Mayor Moore and Moore's attorney James Schroeder to discuss the allegations.

Other than the allegedly uttered racial slur, two complainants said that Moore pressured Township staff to create a list of residents' names and addresses (as opposed to the property owners' names and addresses) so that a flyer concerning the Laurel Lake Emergency Medical Services (EMS) could be mailed out to those residents.  Moore allegedly wanted the residents' names and addresses downloaded into an Excel file that could be e-mailed to a local printer so that the residents' addresses could be printed on the flyers.  When the complainant told Moore that the information could not be downloaded in that manner, he became disagreeable and allegedly sent an "upsetting e-mail."   The complainant alleged that Mayor Moore said that the file of residents' names and addresses could be used for "such things as the fire company, township calendars, and his campaign."   

One of the two complainants said that Moore's request "really made [her] uncomfortable" because she didn't believe that it was right to do work for the EMS during Township time and because Township resources should never be used for an election campaign.  The other said that Moore told her that the project was a priority and that they were "under strict deadline to move ahead with the mailer."  She said that she "was upset over the email because Mr. Moore was aware of the work load of the office [and] was aggravated that his project was not made an immediate priority over other required office and township duties."

At the March 11, 2016 meeting, Moore neither confirmed nor denied that he ever told the complainants that he wanted the list for his campaign.  His attorney, however, offered that if the word "campaign" was used, Moore likely meant it in the sense of the EMS squad conducting "a direct mail campaign."

One of the complainants said that Moore, only a week after the complainant was hired, called her into a conference room to persuade her to accept a $5,000 cash buy-out instead of receiving Township-funded health insurance for her family.  She said that because her "family was in desperate need of benefits" she felt "rather bullied" by Moore's persuasion attempt.  Moore's response to the allegation is Clintonesque.  He admits that he did talk to the employee and tried to convince her to give up her health insurance in exchange for the $5,000 buy-out but that he "didn't do it deliberately."

Another complainant said that Moore pestered him about getting divorced and marrying someone with whom the complainant had been in a two-year relationship so that the Township's health insurance premium would be reduced. Moore admitted to having spoken to him regarding marital status on "maybe four or five occasions" and said that if he made such a comment in public, it was done "in a joking manner."  Moore admitted that he "was quite concerned" about the savings that would have been realized had the complainant adjusted his marital status.

Still another complainant said that she was asked by Moore to retire even though she wasn't old enough to collect social security and could not afford to retire.  The complainant said that Moore falsely told her that another similarly-situated employee was going to retire and that he had spoken with both Sutton and Jamison about the complainant's retirement.  In response to Seeley's question of whether he made comments about the complainant retiring, Moore's answer was less than clear:  "If I did, and I won't say that I didn't, but she was up for that job and we would talk about the time that she would retire and all the things that [redacted] would change and do in that office, so [redacted] was looking forward to retiring, but [redacted] was [redacted] and she stayed until she wanted to retire."

By the end of the March 11, 2016 meeting--which ran for three and half hours--Sutton expressed that he didn't feel that the Township could risk keeping Moore on as Mayor any longer. "The only resolution I see is Jud Moore needs to resign and not seek public office in Commercial Township . . . Let's take care and put this to bed for the sake of the employees and the taxpayers," Sutton said. On the last page of the March 11th minutes, Jamison made a motion to turn the harassment complaints over to the Joint Insurance Fund for a formal investigation.  Sutton and Jamison voted in the affirmative and Moore abstained.  Moore resigned the following day.


1. There are several confusing references in the March 11th meeting minutes to Moore allegedly referring to himself (or perhaps being referred to by others) as "Lucifer."  Commmercial residents are invited to open up the minutes file and do a word search on "Lucifer."

2. There is presently some ambiguity regarding the Township's responsibility to disclose the Committee's March 14, 2016 closed meeting minutes. I will update this article when that ambiguity is resolved.

3. Other less important documents that Curio ordered disclosed were a March 1, 2016 letter and a March 3, 2016 letter.

Tuesday, September 13, 2016

Downloadable PDF file on Berlin Township's website tells citizens that OPRA form is no longer available on-line.

Is it possible that Berlin Township (Camden County) is trying to dissuade citizens from seeking records under the Open Public Records Act (OPRA)?  One could argue that  this is exactly what Mayor Phyllis Magazzu and other Township officials are trying to do.

If one goes to the Township's main page and clicks the "Forms" button, there's a link for "OPRA requests."  But, when one clicks on the link to download the PDF file, citizens will find that the PDF is not the OPRA form, but a letter that says that the Township is "sorry to inform you that [the OPRA request] form is no longer available on line." 

But, not to worry.  Citizens who "are interested in filing an O.P.R.A. request" are given the convenient option of "com[ing] to the Clerk's Office located at 135 Route 73 South, West Berlin, NJ 08091 to obtain the proper form."

Fortunately, ever since the Appellate Division's 2009 decision in Renna v. Union County, requests do not need to be submitted on any specific form.  Those who wish to submit an OPRA request to Berlin Township can do so by sending an e-mail with "OPRA request" in the subject line to Township Clerk Cathy Underwood at

Thursday, September 8, 2016

Burlington Judge rebuffs PBA, orders disclosure of redacted log of internal affairs complaints against county corrections officers.

In an August 31, 2016 ruling, Burlington County Assignment Judge Ronald E. Bookbinder denied Burlington County's and the New Jersey Police Benevolent Association's (PBA) bid to reverse his previous decision calling for disclosure of a redacted list of Internal Affairs complaints against corrections officers at the Burlington County Correctional and Detention Facility.

In his ruling in John Paff v. Burlington County, et al, Docket No. BUR-L-36-15, Bookbinder wrote that disclosure of the list, with the names of the officers redacted, will help me to "research the frequency and nature of complaints brought against Burlington County Corrections Officers" without jeopardizing "the privacy interests and potential safety concerns of the officers named on the list." 

In response to the PBA's argument that the list should be suppressed in its entirety, Bookbinder wrote that "New Jersey courts have long recognized that police officers are held to a high standard of conduct" and that "there are strong public policy concerns that weigh in favor of the release of the requested record."

Bookbinder's decision does not go as far as an October 16, 2014 decision by former Bergen County Assignment Judge Peter E. Doyne in John Paff v. Bergen County, et al., Docket No. BER-L-7739-14.  That decision, which is presently under appeal, held that I was entitled to the list of complaints with the officers' names disclosed.

It is presently unknown whether Burlington County or the PBA will appeal Bookbinder's ruling.

Bookbinder's decision is consistent with a May 26, 2015 decision in John Paff v. Warren County, et al, Docket No. WRN-L-417-14 by Superior Court Judge John H. Pursel.  There, Warren had given me a list of Internal Affairs complaints with the officers' names redacted and Pursel held that I was not entitled to an unredacted version of the list. 

The only other case I filed seeking a log of corrections officer Internal Affairs matters was John Paff v. Cape May County, Docket No. CPM-L-373-14.  In that case, the County turned over the list prior to the court ruling on the case.

I am  being represented in the Burlington and Bergen cases (and was represented in the Cape May and Warren cases) by Donald M. Doherty of West Berlin.

Tuesday, September 6, 2016

Two OPRA cases seeking draft settlement agreements and correspondence to be heard this month.

Judges in Essex and Hudson Counties will hold hearings this month to determine whether settlement correspondence and draft agreements traded between the parties to a lawsuit (where one party is a government agency) are subject to disclosure under the Open Public Records Act (OPRA).  

The first hearing will be held before Essex County Superior Court Judge Frank Covello at 4 p.m. on Wednesday, September 14, 2016 at the Hall of Records 465 Dr. Martin Luther King, Jr. Boulevard, Newark.  The case being heard is Libertarians for Transparent Government (LFTG) v. Borough of Caldwell, et al, Docket No. ESX-L-5197-16.  At issue is whether a June 22, 2016 settlement confirmation letter exchanged between the parties was disclosable under OPRA even though the settlement had not formally been approved by the Garden State Municipal Joint Insurance Fund Board of Commissioners at the time LFTG's June 25, 2016 OPRA request was received.  In the settled case, DeVito v. Borough Caldwell, Federal Case No. 2:13-cv-0678, the court had been advised on June 21, 2016 that it had been settled.

On September 14, 2016, Judge Covello ruled that the June 22nd letter was responsive to the OPRA request and that there was no lawful reason allowing Caldwell to withhold it.  On September 27, 2016, Judge Covello ordered Caldwell to pay the plaintiff's attorney $5,199.84 in court costs and attorney fees.

The second hearing will be held before Hudson County Superior Court Judge Daniel D'Alessandro at 1:30 p.m. on Friday, September 30, 2016, at the Brennan Courthouse, 583 Newark Avenue, Jersey City. The case being heard is Libertarians for Transparent Government (LFTG) v. City of Jersey City, et al, Docket No. HUD-L-2952-16.  At issue is whether draft settlement agreements or settlement correspondence exchanged between Jersey City's lawyers and the plaintiff's attorney were disclosable even though a formal, signed settlement agreement did not exist at the time of LFTG's July 3, 2016 OPRA request. The litigation for which the settlement was sought is Tevin Henry v. Jersey City Police, Federal Case 2:14-cv05480 which was marked settled by the court on June 29, 2016.  The formal settlement agreement was signed on July 15, 2016.

The two cases seek an outcome similar to Judge Thomas F. Brogan's September 1, 2016 ruling in Libertarians for Transparent Government (LFTG) v. William Paterson University et al, Docket No. PAS-L-1541-16.  In that case, Judge Brogan ruled that since the most important settlement terms had been agreed to and since the settlement had been reported to the court and was enforceable at the time of the OPRA request, a draft of the settlement that contained those terms was disclosable under OPRA.

LTFG is being represented in the Essex case by CJ Griffin of Hackensack and by Walter M. Luers of Clifton in the Hudson case.  Both hearings are open to the press and the public.  Those who wish to attend are urged to call the court offices (Essex/Covello at 973-776-9517 and Hudson/D'Alessandro at 201-795-6650) prior to the hearing to ensure that it hasn't been postponed.

OPRA win: Passaic judge orders disclosure of draft settlement agreement.

Update: On February 24, 2017, Deputy Attorney General Lauren A. Jensen, on behalf of William Paterson University, filed an appeal of Judge Brogan's order.  The transcripts are on-line here.  The State's opening appellate brief is here.
On September 1, 2016, Passaic County Superior Court Judge Thomas F. Brogan ruled that William Paterson University violated the Open Public Records Act (OPRA) by not disclosing a draft of a settlement agreement that the parties to a lawsuit had exchanged with each other. Brogan, however, did not issue his written order memorializing his findings until February 22, 2017.  In a January 10, 2017 Order, Brogan awarded the plaintiff's attorney $30,350 in costs and attorney fees.

Judge Brogan, in a oral decision delivered from the bench, ruled that since the most important settlement terms had been agreed to and since the settlement had been reported to the court and was enforceable at the time of the OPRA request, a draft of the settlement that contained those terms was disclosable under OPRA.  This is the first decision of its kind in New Jersey and background on the case is available in a June 7, 2016 NJ Open Government Notes article

It is an important decision.  As author of NJ Civil Settlements, a blog which reports settlements of lawsuits against government agencies and officials, I have often encountered situations where, in response to an OPRA request, I am told that the settlement agreement is "not yet available" even though a meeting of the minds has been reached among the parties and the matter has been marked "settled" in the court's records.  The typical justification for the denial is that the settlement agreement has not yet been formalized or that it has not received the signatures of all parties.

It sometimes takes months for lawyers to work out all the minor details and gather all the signatures. For example, Brennan v. William Paterson University, et al, Federal Case No. 2:11-cv-06101 (the basis of the present case) was reported "settled" to the court on March 15, 2016.  Yet, the agreement wasn't finalized and publicly disclosed until nearly two months later--May 11, 2016.  It is unfair to deprive the public of the essential settlement terms (e.g. how much money the plaintiff received) while the minor settlement details are being ironed out.

I was represented in the matter by Richard M. Gutman of Montclair.  William Paterson University was represented by Deputy Attorney General Lauren A. Jensen.  After Judge Brogan issues his written order, the University will have 45 days to file an appeal if it chooses to do so.

Monday, September 5, 2016

Judge rules in Cumberland County Open Public Records Act (OPRA) case.

Update:  Commercial Township signed a settlement agreement requiring the Township to pay $8,000 to the Plaintiff's attorney.
On Friday, September 1, 2016, Cumberland County Superior Court Assignment Judge Georgia Curio ordered Commercial Township to disclose minutes of Township Committee meetings at which the circumstances surrounding the former mayor's abrupt resignation were discussed.  Curio also ordered disclosure of a Memorandum of Understanding the Township entered into with the former mayor regarding his resignation. 

The case centered on former Mayor Judson Moore's abrupt resignation which he originally attributed to having been "too busy with life."  Moore had resigned on March 12, 2016 when four Township employees' harassment grievances against him were under investigation.  Judge Curio ruled that the harassment grievances--which she said did not allege sexual harassment--and the notes of interviews between Moore's alleged victims and Township officials were exempt from disclosure.

Background on and documents filed in the case, Libertarians For Transparent Government v. Commercial Township, et al, Docket No. CUM-L-402-16, are available in a June 9, 2016 NJ Open Government Notes article.

Judge Curio also ordered that Commercial Township must pay the Libertarian organization's costs of court and attorney fees.  She ruled that the Memorandum of Understanding and the meeting minutes may be redacted to shield the harassment complainants' identities. 

The meeting minutes, Memorandum of Understanding and any other records the Township discloses will be uploaded to this blog as soon as they are received.