Thursday, October 26, 2017

Court to determine if State Trooper overtime pay amounts are public information and whether 100+ day OPRA response delays are permissible.

Update: In an October 30, 2017 court order, Mercer County Assignment Judge Mary C. Jacobson reprimanded the Division of State Police for having a "pattern and practice of lengthy delays" of between 120 and 145 days in responding to Open Public Records Act (OPRA) requests.  She ordered the Division to provide a certification to the court, the requestor's attorney and the Superintendent of State Police "that explains the reasons for the delayed response [and] "describes the current resources and procedures the State Police has in place for managing OPRA requests, and outlines a plan to foster compliance with OPRA's timelines in the future."  Judge Jacobson also ordered the Division to release overtime information on four troopers, provide properly redacted versions of the troopers' final pay stubs and pay the attorney fees of CJ Griffin, the OPRA requestor's lawyer.
On Thursday, October 26, 2017 at 2 p.m., Mercer County Assignment Judge Mary C. Jacobson will hear the case of Libertarians for Transparent Government (LFTG) v. New Jersey State Police, et al, Docket No. MER-L-1055-17. There are two matters at issue: 1) whether the amount of overtime pay a State Trooper receives must be disclosed to the public and 2) whether the court will require the State Police--an agency that routinely takes months to substantively respond to even routine Open Public Records Act (OPRA) requests--to generally honor OPRA's seven business-day response period.

On the first issue, LFTG submitted a records request to the Division of State Police on December 20, 2016 seeking payroll records from 2015 for four specific State Troopers.  In its request, LFTG requested "records that show the amount of overtime earned in 2015 by each of" the four Troopers.  In its April 20, 2017 response, the Division sent LFTG payroll records for the four Troopers that were redacted to remove personal identifiers and overtime earnings.  The Division's suppression of overtime pay was based on state regulation N.J.A.C. 13:1E-3.2(a)(7) which exempts:
The duty assignment of an individual law enforcement officer or any personally identifiable information that may reveal or lead to information that may reveal such duty assignment, including, but not limited to, overtime data pertaining to an individual law enforcement officer.
LFTG's lawyer, CJ Griffin of Hackensack, argued in her brief that since OPRA expressly permits access to payroll information, including the amount of overtime pay, the Department of Law and Public Safety lacks authority to create an administrative rule that exempts all overtime information. "A regulation passed by the Department of Law and Public Safety cannot trump what is expressly made available by statute and OPRA makes payroll records and overtime information available," she wrote.

In its opposition paperwork, the Division submitted a Certification by Major Scott Ebner that stated in part:
Disclosure of overtime pay, overtime hours, and compensatory time for individual State Troopers will reveal the names of the State Troopers who have worked the largest amount of overtime. This information, when viewed in the aggregate, can be used to determine the duty assignments of the troopers at the top of the overtime lists. This link between overtime pay and duty assignment is possible because the highest earners of overtime pay more often than not are those troopers engaged in homeland security, executive protection and undercover assignments. Such knowledge, in turn, will assist terrorists and other wrong-doers who intend to cause harm to New Jersey or high level New Jersey officials.
The Division also pointed out in its opposition that in 2005 then Mercer County Assignment Judge Linda R. Feinberg upheld the Division's denial of overtime records in the unpublished case of Newark Morning Ledger Co. v. Division of State Police of the New Jersey Department of Law and Public Safety.  According to the Division's brief, Feinberg's "ruling was the catalyst for the New Jersey Department of Law and Public Safety to amend its regulation, N.J.A.C. 13:1E- 3.2(a)(7), to include a specific reference to "overtime data pertaining to an individual law enforcement officer."

In her reply to the Division's opposition, Griffin pointed out that the Appellate Division, in its 2015 unpublished decision in New Jersey Second Amendment Society v. Div. of State Police, cautioned the State Police "against the use of [N.J.A.C. 13:1E-3.2(a)(7)] to improperly deny public access to overtime information because that would clearly subvert the express language of OPRA."  Griffin also pointed out that the Division routinely publicizes its Troopers' allegedly confidential duty assignments on social media.   (Note: the Newark Morning Ledger and New Jersey Second Amendment Society cases are attached to the Division's opposition brief as Exhibits D and E, respectively.)

On the second issue, Griffin's brief pointed out that the State Police extended OPRA's seven business-day response period nine separate times causing the Division to not substantively respond to LFTG's request for payroll information on four employees until 121 days had elapsed.  In order to show that this delay was not an isolated incident, Griffin submitted certifications from OPRA requestors Richard Rivera and Gavin Rozzi demonstrating that they each encountered long delays when requesting records from the Division.  She also submitted a chart developed by LFTG showing that 150-day delays were typical.  In opposition, the Division noted only that LFTG did not object to the extensions.  In her reply, Griffin wrote that since the Division "has a pattern and practice of grossly violating OPRA's statutory timelines . . . [t]he Court should therefore enter an Order compelling the State Police to comply with OPRA's statutory timeframes in the future."

Wednesday, October 25, 2017

Galloway taxpayers paid $103,222.57 in legal fees and costs to an OPRA requestor's attorneys.

At its October 24, 2017 meeting, the Galloway Township (Atlantic County) Council authorized an $87,199.44 payment to Clinton-based attorney Walter M. Luers for legal work that he and other lawyers performed in an Open Public Records Act (OPRA) lawsuit that resulted in a significant New Jersey Supreme Court ruling.  This is in addition to $16,023.13 in fees and costs that Galloway taxpayers paid Luers as a result of a July 25, 2014 court order that arose out of the same case.  The $103,222.57 figure does not include fees and costs paid by Galloway taxpayers to their own lawyer, Michael J. Fitzgerald of Linwood, for advocating the Township's interests in this case.

The case was John Paff v. Galloway Township et al, that resulted in a June 20, 2017 decision in which a unanimous New Jersey Supreme Court ruled that "information in electronic form, even if part of a larger document, is itself a government record [and that] electronically stored information extracted from an email is not the creation of a new record or new information; it is a government record."  The decision reversed a contrary ruling handed down by a three-judge Appellate Division panel on April 18, 2016.  The Appellate Division ruling had reversed a June 10, 2014 opinion issued by Atlantic County Superior Court Judge Nelson C. Johnson.

According to an agreement between the Township and Luers, of the $103,222.57, $16,023.13 represents legal work done at the trial level, $51,770.85 for work done at the Appellate Division level and $35,428.59 for work done before the New Jersey Supreme Court.  Attorney who assisted Luers and who will receive part of the proceeds are: Henry F. Furst, Joshua M. Laurie, Raymond Baldino and Michael M. McIlmail.

Monday, October 23, 2017

Judge: Conflict of interest lawsuit against two Bridgeton council members shall move forward.

Update: On January 12, 2018, a Stipulation of Dismissal was filed that "dismissed [the lawsuit] without prejudice and without attorney's fees or costs" because the the case had "been rendered moot by [Bridgeton] having rescinded Resolution 67-17 & 43-17."
On Friday, October 20, 2017, Superior Court Judge Anne McDonnell refused to dismiss a taxpayer's conflict of interest lawsuit against two Bridgeton (Cumberland County) City Council members who voted to sell city-owned land while they served on the boards of organizations that were allegedly "partners" or "collaborators" with the land purchaser.

During a public meeting held on March 7, 2017, the City Council passed Resolution No. 43-17 that authorized the sale of several parcels of real estate to River Grove Urban Renewal Housing Partners, LLC for a housing project.  The resolution noted that Tri-County Community Action Agency, Inc. was one of the "partners involved in the project."  The resolution passed by a 3-2 vote, with Council President Gladys Luguardo-Hemple and members James Curtis Edwards and Jack Surrency voting in favor and members William D. Spence and Michael D. Zapolski, Sr. voting against.

In his lawsuit, Bridgeton resident Thomas Martin alleged that Tri-County Community Action Agency, Inc. also goes by the name Gateway Community Action Partnership and that Council member Edwards served on that organization's board of directors at the time of his March 7th vote.  In their answer to the lawsuit, Edwards and Surrency admitted to the truth of these allegations.

Martin alleged that he had warned Edwards during the public portion of the March 7th meeting that he could not vote on Resolution 43-17 because he "had a clear conflict of interest" due to him serving on Gateway's board. (Bridgeton Mayor Albert B. Kelly also serves as Gateway's Chief Executive Officer (CEO).)

Martin's lawsuit also alleged that Surrency and Edwards served, respectively, as Chairman of the Board and President/CEO of Complete Care Health Network and that Complete Care "is a self-described 'partner' and 'collaborator' with Gateway."  In their answer to the suit, Edwards and Surrency "neither admitted nor denied" this allegation but Complete Care's website shows that Gateway is one of its "Partners & Collaborators."  Similarly, Gateway's website features an article titled "Gateway, Inspira & Complete Care Partnership will WOW the community."  Martin's lawsuit further alleged that Surrency formerly served as a Gateway board member and that Surrency, Edwards and Mayor Kelly all serve on the Bridgeton Municipal Port Authority which will be directly affected by the the sale of the property.

After casting his March 7th vote, Edwards resigned from Gateway's board by way of a March 10, 2017 letter written on Complete Care's letterhead.  In his lawsuit, Martin characterized Edwards' resignation as "a transparent and ineffective attempt to absolve himself of any conflicts."

At its April 18, 2017 regular meeting, the City Council brought up Resolution 67-17 which was very similar to Resolution 43-17.  According to Martin's lawsuit, Resolution 67-17 was not listed on the meeting's agenda and wasn't raised for a vote until after Zapolski had left the meeting.  According to the suit, the absence of the resolution from the agenda and the timing of the vote were done for "the express and impermissible purpose of denying a vote to a known dissenter."  The resolution was passed 3-1, with Luguardo-Hemple, Edwards and Surrency voting in favor and Spence voting against.

The main thrust of Martin's lawsuit is that Edwards and Surrency were conflicted from voting on both 43-17 and 67-17 and that the court ought to render both resolutions null and void.

Despite Judge McDonnell's July 20, 2017 order that required Surrency and Edwards to respond to Martin's interrogatories by August 31, 2017, Surrency's and Edwards' lawyer told Martin's lawyer in a September 9, 2017 letter that the pair "would not be answering interrogatories as a Motion to Dismiss will be filed in the next few days."  (Both the order and the letter are attached as exhibit's to Martin's cross-motion.)  On September 14, 2017, Surrency and Edwards did file such a motion.  However, as noted above, Judge McDonnell, in her October 20, 2017 order, denied their motion and granted Martin's cross-motion to require Surrency and Edwards to answer Martin's interrogatories within 30 days and for the City to properly respond to Martin's interrogatories in accordance with his demand letter of September 18, 2017. (The demand letter is attached as an exhibit to the cross-motion.)

Monday, October 16, 2017

Appellate Division exempts all "student records," even those from which all student personal identifying information is redacted, from OPRA.

In an October 16, 2017 published (and thus precedential) decision, a three-judge panel of the New Jersey Superior Court, Appellate Division ruled that unless a record requestor is an "authorized person or organization" defined by New Jersey regulations, no record "related to an individual student" may be disclosed by school officials absent parental consent or a court order.  According to the opinion:
For example, a document reflecting a school district's settlement of claims for special services by a hypothetical disabled student, Mary Jones, remains a "student record," even if her name and other personal identifiers are removed from the settlement agreement. The record still "relates" to Mary Jones and discusses aspects of her life. The document does not cease becoming a "student record," or change its fundamental character, even if, say, a redacting employee took an extra-wide marker to mask the child's name, address, Social Security number, and other demographic information, or replaced the actual names within it with fictitious names.
If such a court order is sought, the Appellate panel requires that parents must be given an opportunity to comment on proposed redactions to any records relating to their children.

This sweeping decision appears to justify the complete suppression, at least initially, of all settlement agreements that resolve lawsuits filed by or against students.  Thus, when a settlement is reached in the lawsuit filed by "Jane Doe," a fourth grade girl who claimed she was "raped 'hundreds of times'" by a now retired Hillsborough (Somerset County) elementary school principal, Hillsborough taxpayers will not be entitled to disclosure of even a heavily redacted version of the settlement agreement without first obtaining a court order. 

It is not clear at this point whether taxpayers who sue to obtain such a court order will be entitled to recover their attorney fees from the school district if they are successful.  Under the Open Public Records Act (OPRA), successful litigants are entitled to recover their attorney fees and court costs from the agency that wrongfully withheld the records.  The Appellate panel likened a lawsuit filed in accordance with its opinion to a common-law public records access case where the availability of attorney fees and court costs is at best unclear.

While I appreciate the need to keep some student records confidential, I believe that some categories of student records, including those that disclose settlements paid by taxpayer dollars, must remain readily available to the public.

In its opinion, the panel recognized the likelihood of an appeal to the New Jersey Supreme Court and "encourage[d] the New Jersey Department of Education to consider formulating 'best practices' guidance – perhaps expanding or revising the existing regulations – to address the myriad issues of implementation that have been presented by [this opinion]."  Hopefully, either the Supreme Court or the Department will ensure that this need is accommodated. 

Friday, October 6, 2017

Is a quorum of a municipal governing body present when a majority of the body's members are recused, conflicted or choose not to vote?

Amazingly, this rather straightforward question is unsettled and bills seeking to clarify it have languished in the Legislature since 2011.

On October 3, 2017, Anthony Bellano of the Cinnaminson Patch published an article about how the five-member Cinnaminson Township Committee, during a public meeting, passed a motion, with only two expressed, affirmative votes, to refer one of the governing body's members to the Burlington County Prosecutor and the New Jersey Department of Community Affairs for official misconduct investigations.

Voting in favor of the motion were Mayor Anthony Minniti and Deputy Mayor William “Ben” Young.  Committeeman Donald Brauckmann, who was the subject of the investigation referral, did not vote or participate because of a clear conflict of interest.  According to the article, Committeeman Howard “Bud” Evans "recused himself due to his friendship with Brauckmann" and Committeeman John McCarthy "abstained because he said he didn’t have enough time to thoroughly read the results of the investigation and make an informed vote."

Some members of the public who observed the meeting expressed confusion as to how only two affirmative votes--cast by less than a majority of the members present--could carry the motion.  According to the Patch article, Township Solicitor John Gillespie "refused to answer" residents' questions regarding whether two votes were enough to carry the motion.

After searching on-line and speaking with Laura C. Tharney, Executive Director of New Jersey Law Revision Commission, I learned that the Commission had published a "Final Report relating to Effect of Abstentions" in April 2011.  This report concluded that under current, sometimes conflicting state court decisions, the vote of a person who abstains from voting is counted as "yes" vote under the common law unless he or she has "expressed opposition, in which case" he or she is counted as voting "no."  But, the report notes that the Commission had "found no case describing what kind of expression of opposition would suffice to make the abstention a 'no' vote."

The report also found that if a member is not entitled to vote, he is not counted as present to constitute a quorum and that "if a member recuses himself and takes no part in the proceedings even if he is physically present and would not necessarily be barred from voting, his presence does not count toward a quorum."  The report noted that "it may be particularly hard to determine whether a member fully recused himself or whether he merely abstained. In the first case, his vote would not count; in the second, he would be counted as affirmative."

Under this murky guidance, Brauckmann would not have been counted toward the quorum because he was  clearly conflicted.  Whether Evans should have been counted toward the quorum depended on whether his decision to recuse himself, due to his friendship with Brauckmann, was a well reasoned decision.  If he properly recused himself, he also would not have been counted as present for the purposes of a quorum.  But, had he instead of recusing himself announced that "I am a good friend of Donald Brauckmann and really oppose this attempt by Minniti and Young to refer him to the prosecutor, but because of my friendship I am abstaining from this vote," then it appears that he would have been counted toward the quorum and his vote would have been counted as a "no." 

According to the Patch article, McCarthy used the word "abstained" instead of "recused" so, if he truly abstained, he would have counted toward the quorum but whether his vote counted as a "yes" or "no" would turn on whether he expressed a sufficient level of opposition to the substance of the motion.

In sum, Minniti's and Young's "yes" votes would seem to have carried the motion only if: a) either Evans, McCarthy or both of them abstained (rather than recused themselves) and b) if one or none of the abstainers expressed no opposition to the substance of the motion.  In such a case, the quorum of three members would have been satisfied and the number of "yes" votes would have exceeded the number of "no" votes.  If, however, Evans and McCarthy both "recused" instead of "abstained," then the vote would have been out of order for want of a quorum.  And, if Evans and McCarthy both abstained and announced their opposition to the motion, the motion would have lost by a 2-2 vote.

At the end of its report, the Commission recommended legislation that would clarify matters.  In the current Legislative Session that expires in January 2018, Assembly Bill No. 2896, introduced by Assemblyman Ronald S. Dancer, would establish the following rule:
[W]hen a member of a public body is attending a meeting, but abstains or fails to vote on a matter before the public body, the following provisions shall apply: the member shall not be counted as voting either for or against the matter; if the member is legally entitled to vote and has not recused him or herself from consideration of the matter, the member shall be deemed present for the purpose of determining whether there is a quorum of the public body to consider the matter; and if the member is not legally entitled to vote because of conflict of interest or otherwise, or has recused him or herself from consideration of the matter, the member shall not be counted as present for the purpose of determining whether there is a quorum of the public body to consider the matter.
If Dancer's bill would have been law when Cinnaminson's motion was voted upon, the passage of the motion would have still turned on Evans' and McCarthy's recused-vs-abstained status.  But, at least the importance of the recused-vs-abstained distinction would have been better realized and their ultimate decisions to abstain or recuse would have been reached in a more methodical and less arbitrary manner.

Dancer's present effort has been before the Legislature since December 2011.  Dancer introduced an identical bill (A2437) in the 2014-2015 Legislative Session and, along with Senators Nicholas P. Scutari and Ronald Rice, introduced the same bills in the 2012-2013 session (A4436 and S767). Scutari introduced an identical bill (S3121) in the 2010-2011 session.  The only time any version of the bill was heard was on March 4, 2013 when S767 was favorably reported out of the Senate's Community and Urban Affairs Committee by a unanimous 5-0 vote.