Sunday, April 16, 2017

Division on Civil Rights rosters and complaints are public records under OPRA.

Recent Open Public Records Act (OPRA) requests to the New Jersey Division on Civil Rights resulted in the Division disclosing a roster of recent complaints alleging discrimination as well as some of the complaints themselves.  Some of the complaints against government entities contain astonishing allegations, e.g. a 61-year-old male maintenance worker employed by the Somerville (Somerset County) Board of Education who complained that his supervisor tried to grope him and "frequently talk[ed] about engaging in anal sex with" him.

Other complaints include:
  • A female, Guatemalan custodian employed by the Somerville Board of Education who claimed that the same supervisor told her that "she should go back to where she came from" if she wasn't happy with her job.
  • A female pre-K teacher employed by the Bound Brook (Somerset County) Board of Education who claimed that her salary increment was withheld because she "express[ed] job related concerns."
  • A female, Puerto Rican Union County Sheriff's officer who said that she was denied a sergeant promotion because of her gender and her place of origin.
  • A black, male East Windsor (Mercer County) police sergeant who claimed that he was denied a lieutenant promotion because of his race. 
  • A "volunteer associate member" with Freehold Township (Monmouth County) Independent Fire Company No. 1 who said that he was discharged because he has an unspecified disability.
It should be noted that nothing contained these complaints has been proven.

Wednesday, April 12, 2017

Burlington Prosecutor dings Mansfield Committee for Meetings Act violation

In a March 28, 2017 letter, Burlington County Assistant Prosecutor Thaddeus E. Drummond advised Mansfield Township Solicitor Michael McGee that the Township Committee's October 25, 2015 discussion of a tax compliance plan in a closed meeting "ran afoul of the prohibitions contained in the [Open Public Meetings Act].

Drummond rejected Mansfield's assertion that the tax compliance plan was eligible for private discussion because it related to "Litigation/Potential Litigation."  "The implementation of a tax compliance plan is not one of the enumerated subjects that a public body can discuss in executive session to the exclusion of the general public," he wrote.  "I conclude that the Committee violated the OPMA when it did so. . . [T]he mere fact that this Compliance Plan could potentially result in litigation at some unspecified point in the future does not warrant a contrary conclusion."

Drummond conceded that he "would be hard pressed to demonstrate to a court of competent jurisdiction that the Committee knowingly violated the OPMA."  Thus, instead of attempting to fine the Township Committee members, he opted to call on the Committee to do better in the future. "Educating public officials who may have mistakenly violated the provisions of the statute is far more effective than the imposition of nominal fines," Drummond wrote.

Saturday, April 8, 2017

Court: Volunteer fire company is subject to OPRA but municipal clerk is the company's default records custodian and municipality must pay requestor's attorney fees.

In an April 3, 2017 ruling in the case of Justin D. Lamb v. Lavallette Volunteer Fire Company, No. 1, et al, Ocean County Superior Court Assignment Judge Marlene Lynch Ford ruled that the fire company is an "instrumentality" of Lavallette Borough and therefore subject to the Open Public Records Act (OPRA) because it "has been delegated the obligation to meet the public safety and police function of firefighting."  

In response to the fire company's argument that Lamb's OPRA was not valid because it was served on the the fire company's president rather than its secretary, Judge Ford ruled that since the fire company did not designate an OPRA custodian, the Borough Clerk, who was also served with a copy of Lamb's OPRA request, "shall be primarily responsible for responding to that request." 

Judge Ford also found that Walter M. Luers of Clinton was entitled to recover his costs and attorney fees for bring this suit.  But, she ruled that the Borough of Lavallette, rather than the fire company, is responsible for the costs and fees.  "[T]he volunteer members of the fire company, to the extent that they are performing a vital governmental service, may not be held personally liable for counsel fees," Judge Ford wrote.

For other court cases regarding whether a fire company is subject to OPRA, see my January 21, 2016 article.

Bergen Judge rebuffs Paramus' demand that OPRA requestor prove citizenship.

On March 31, 2017, Bergen County Assignment Judge Bonnie J. Mizdol rejected Paramus Borough's argument that a Somerset County-based Open Public Records Act (OPRA) requestor had to supply his home address to prove that he was a citizen of New Jersey.

According to CJ Griffin, who represented records requestor Jeff Carter, Mizdol held that anyone--not just New Jersey citizens--can use OPRA to obtain government records.  Mizdol's broad ruling rendered moot the question of whether a requestor needs to prove his or her citizenship.  Mizdol is the fifth judge to rule on the citizenship issue.

According to briefs filed in the matter, Carter sought legal invoices from the Borough.  After narrowing his request in response to the Borough's claim that it was "overly broad," the Borough's attorney, Paul Kaufman of Kaufman Semeraro Liebman LLP, demanded that Carter provide his home address in order to prove that he was a New Jersey resident.  Griffin wrote that Paramus' demand "is a frustrating example of an agency placing unnecessary obstacles in the way of gaining access to very basic government records" and that if Paramus' position was accepted, "citizens of Bergen County can expect that they will have to jump through hoops and give up their right to privacy in order to gain access to government records."

According to Griffin, Justin Santagata, also of the Kaufman Semeraro Liebman, indicated that Paramus would appeal Mizdol's ruling.

Tuesday, April 4, 2017

State Police honor OPRA request and disclose Final Decision on firing of disorderly Trooper

The firing of NJ State Trooper Nicole Cusanelli was reported in the media on February 22, 2017--the same date that the Appellate Division affirmed her firing.  But, an Open Public Records Act (OPRA) request disclosed the July 1, 2015, 30-page decision by State Police Superintendent Joseph R. Fuentes that provides more detail and context regarding the May 3, 2009 incident that gave rise to Cusanelli's termination.  Cusanelli was convicted of disorderly conduct but acquitted of driving under the influence and resisting arrest.  She ultimately was fined $300 for the disorderly conduct charge.

More important than the content of the decision is the fact that such decisions are disclosable under OPRA.  Police internal affairs matters are typically considered exempt from disclosure. 

Monday, April 3, 2017

We're going into executive session now and we're not going to tell you what we'll be talking about.

Before going into closed (i.e. private or executive) session, public bodies are required by N.J.S.A. 10:4-13 to pass a resolution in public that announces the "general nature of the subject to be discussed" during closed session and "as precisely as possible, the time when and the circumstances under which the discussion conducted in closed session of the public body can be disclosed to the public."  One of the most common violations of Open Public Meetings Act (OPMA) is for public bodies to exclude citizens and taxpayers from their meetings without providing the public with a real sense of the topics that are going to be privately discussed.

As an example, consider the Bloomsbury Board of Education (Hunterdon County).  The school board's closed session resolutions passed on October 11, 2016, November 8, 2016, January 10, 2017, February 14, 2017 all identically state:
Motion by [member], seconded by [member], that be it

RESOLVED, that the Board of Education adjourn to executive session at [hour] pm to
discuss Student, Personnel and Legal issues.

Motion carried unanimous voice vote.
This is improper because the phrase "student, personnel and legal issues" is so general that it does not give the public any real sense of what topics the Board is going to privately discuss.  Nearly any topic imaginable can fit within this vague description. To paraphrase the supreme court of another state, by describing the reasons for going into executive session so broadly, the school board "has said nothing. It might has well have stated to the audience, ‘Ladies and gentlemen, we are going into executive session,’ and stopped there.” Hinds County Board of Supervisors v. Common Cause of Mississippi, 551 So.2d 107, 114 (MS 1989).  (The motion is also improper because it makes absolutely no attempt to satisfy the requirement of N.J.S.A. 10:4-13(b).)

So, how much detail does N.J.S.A. 10:4-13(a) require the Board to publicly disclose in its nonpublic meetings motions or resolutions? Controlling is the Appellate Division's opinion in McGovern v. Rutgers, 418 N.J. Super. 458 (App. Div. 2011) which was mostly reversed by the Supreme Court at 211 N.J. 94 (2012). In part of its opinion that was not reversed, the Appellate Division upheld the ruling in Council of New Jersey State College Locals v. Trenton State College Board, 284 N.J. Super. 108, 114 (Law Div.1994) that public bodies must give the public "as much information [regarding the nonpublic meeting topics] as is consistent with full public knowledge without doing any harm to the public interest." (emphasis supplied) For example, "the general nature of the subject to be discussed should not be set forth as 'litigation' but, rather, as 'litigation-A vs. B.'" Id. at 114, quoting 34 New Jersey Practice, Local Government Law § 141, at 174 (Michael A. Pane) (2d ed. 1993).  (For a more complete explanation, see the letter brief filed in New Jersey Foundation for Open Government, Inc. v. Spotswood Board of Education, Docket No. MID-L-4615-16.)

Unfortunately, the minutes of the Bloomsbury board's October 11, 2016, November 8, 2016, January 10, 2017, February 14, 2017 closed session minutes are so heavily redacted that it's difficult to tell what topics were discussed and the privilege log that accompanied the minutes is not at all helpful.  Still, we can tell, for example, that a feasibility study was discussed at the January 10, 2017 closed meeting and that the 2017 special school election was discussed at the closed meeting held on February 14, 2017.  At a minimum, these topics should have been reflected in the Board's corresponding closed session resolutions.

I have sent a link to this blog article to the members of the school board and Board Attorney Jeff Caccese.