Wednesday, November 21, 2018

Facing lawsuit, Rutgers coughs up its separation agreement with former Athletic Director.

In his August 2, 2018 article, "Why did Rutgers pay fired AD Julie Hermann $500K more than she was owed?" Star-Ledger reporter Keith Sargeant wrote about Rutgers' refusal to provide him with the university's separation agreement with former Athletic Director Julie Hermann.  After reading the article, I had my non-profit submit an Open Public Records Act (OPRA) request for the separation agreement and then sued when Rutgers denied the request.

On September 10, 2018, Rutgers denied my non-profit access to Hermann's separation agreement for the same reason that Sargeant's request was denied: The agreement is "a personnel record, and not subject to disclosure under OPRA," Rutgers claimed.  With CJ Griffin of Hackensack as its attorney, my non-profit filed a lawsuit against Rutgers and its records custodian on September 24, 2018.  The lawsuit and exhibits are here, the brief is here and Griffin's certification and exhibits are here.

After being served with the lawsuit, Rutgers decided to disclose the separation agreement and pay Griffin $6,000 in attorney fees.  The separation agreement is on-line here.  It called for Hermann to receive payments of $175,000 as "retention compensation," $105,000 as "incentive compensation," $31,000 as an "automobile stipend," $125,000 as a "lump sum payment" and $25,000 as "attorney fees."  The agreement also called for Hermann to keep "the existence and terms of [the separation] agreement . . . strictly confidential" and provided that Hermann would have to pay Rutgers $50,000 in liquidated damages if she breached this confidentiality provision.

Thursday, November 15, 2018

OPRA suit seeks disclosure of court filings that resulted in reversal of former Hammonton school guidance supervisor's lewdness conviction.

If a person submits an Open Public Records Act (OPRA) request to a county prosecutor for records that the prosecutor filed in court, it is generally accepted that those records must be disclosed provided that the court case is not sealed.  Yet, on November 5, 2018 the non-profit I serve as executive director filed suit against the Atlantic County Prosecutor's Office (ACPO) for refusing to disclose briefs, certifications and trial court transcripts filed in a former Hammonton school guidance supervisor's court challenge to his conviction for masturbating in public.  The case against the ACPO is captioned Libertarians for Transparent Government v. Atlantic County Prosecutor's Office, Docket No. ATL-L-2684-18 and is on-line here.

By way of background, according to a May 24, 2017 Press of Atlantic City article, Michael P. Ryan was convicted in Absecon Municipal Court of masturbating in his car in the parking lot of a Hammonton laundromat on September 11, 2015 (Summons/Complaint No. 0113-S-2015-000398).  Ryan, who had worked as a guidance supervisor for the Hammonton Public School District, was suspended from his position when he was charged with lewdness--a disorderly persons offense--and was fired when he was convicted of that offense.

On May 18, 2017, Atlantic County Superior Court Judge Donna A. Taylor affirmed Ryan's municipal court conviction. Details of the facts leading up to the charge are set forth in Judge Taylor's May 18, 2017, 13-page written decision.  Judge Taylor affirmed the $506 fine, $158 costs and assessments and one-year term of probation that the municipal court imposed.

Also included in Judge Taylor's decision are details relating to another, separate lewdness charge (Summons/Complaint No. 0113-S-2016-000097) arising out of an September 20, 2015 incident where Atlantic County Prosecutor's Office Detective Michael Peterson charged Ryan with masturbating in his car in the Hammonton Discount Liquors parking lot and an Obstruction of the Administration of Law offense (Summons/Complaint No. 0113-S-2016-000098) that Peterson brought against Ryan for allegedly fleeing from the scene of the September 11, 2015 incident at the laundromat.  The municipal court found Ryan not guilty of these two charges and convicted him only of the lewdness charge that arose out of the September 11, 2015 laundromat allegation.

According to Judge Taylor's decision, the lewdness charge arising out of the September 11, 2015 incident at the laundromat was brought by Eastampton Township Police Officer Michael Musser and his conviction on that charge relied very heavily on Musser's testimony.  Musser said that he, while off-duty, went to the laundromat to do some laundry when he witnessed a man, who he later identified as Ryan, masturbating in his car.  After Musser identified himself as a police officer, the man allegedly drove away.  Musser said that he recognized Ryan driving the same car a couple of weeks later in a grocery store parking lot and took a photograph of Ryan's license plate.  Musser said that he followed Ryan's vehicle but that Ryan ran stop signs to evade him.

At trial, Ryan's attorney argued that Musser did not report the September 11, 2015 when it occurred and could not recall the date or day of the week when it allegedly occurred.  According to Judge Taylor's decision, Ryan's attorney argued that "Musser's lack of reporting the initial incident should raise a serious question as to his attentiveness during the incident."

At some point after Judge Taylor affirmed his conviction, Ryan and his attorney became aware that Musser had been fired for lying to the Eastampton Police Internal Affairs Unit.  (See my article, "Burlington judge upholds Eastampton cop's firing.")  While Ryan's motion and brief to the Appellate Division have been suppressed by the Atlantic County Prosecutor's Office, Burlington County Judge Susan L. Claypoole's October 23, 2017 written opinion does show that Musser was aware of an Internal Affairs investigation against him on August 25, 2016 which was prior to the October 28, 2016 trial at which Musser testified against Ryan.

While Ryan's attorney's argument to the Appellate Division has not been disclosed, Ryan apparently argued that the prosecution was required by the 1963 Supreme Court decision in Brady v. Maryland to tell Ryan's attorney about Musser's untruthfulness.  Such would have allowed Ryan's attorney to attack Musser's credibility during Ryan's trial and may have led to a different outcome.  The prosecution's failure to so inform Ryan of Musser's credibility issues arguably deprived him of a fair trial.

Appellate Division Judge Michael J. Haas entered a December 22, 2017 order that granted Ryan's motion to remand the case back to the Superior Court and Atlantic County Superior Court Judge Bernard E. DeLury, Jr. signed a March 19, 2018 Order that "vacated the Judgment of Conviction," granted Ryan a "new trial based on a Brady violation" and remanded the matter back to the Absecon Municipal Court for a new trial.  By way of a November 30, 2018 letter,  Atlantic County Assistant Prosecutor Kathleen E. Robinson advised Absecon Municipal Court Judge John H. Rosenberger that "upon further review . . . the State has declined to continue the prosecution of defendant Ryan."  Attached to Robinson's letter is a copy of Summons/Complaint No. 0113-S-2016-000098 marked "dismissed."

Libertarians for Transparent Government is being represented in the OPRA lawsuit by Richard M. Gutman of Montclair.

Sunday, November 4, 2018

Lawsuit seeks ruling that Open Public Meetings Act violation implicates attorney fee-shifting provision of Civil Rights Act.

On Wednesday, January 9, 2019, Mercer County Assignment Judge Mary C. Jacobson will hear John Paff v. Trenton Board of Education, Docket No. MER-L-2241-18.  At issue is whether the Board's vote to give Superintendent Fred McDowell a $25,000 bonus should be voided out because the vote was taken after the Board's September 24, 2018 meeting had adjourned and the public had departed.  A second, more far-reaching issue is whether the Board, which violated the Open Public Meeting Act by taking this vote after the meeting had adjourned, also violated rights protected by the New Jersey Civil Rights Act, putting the Board on the hook for court costs and attorney fees.

The Board's award of $25,000 to McDowell and the manner in which was done are controversial, were widely reported in the media and caused the Trenton Education Association and City Council members to demand Board President Gene Bouie's resignation.  But, unlike the Open Public Records Act (OPRA), which requires government agencies to pay the attorney fees of successful OPRA plaintiffs, the Open Public Meetings Act (OPMA) requires each party to pay its own legal fees which dissuades most citizens from enforcing their rights under the Act.  If Jacobson rules that the Trenton Board's OPMA violation also constitutes a violation of the New Jersey Civil Rights Act, she could award attorney fees because the Civil Rights Act expressly permits her to do so.

On December 19, 2018, the Trenton Board filed its opposition brief and certification and on December 21, 2018, the American Civil Liberties Union of New Jersey filed an Amicus Curiae brief.

The plaintiff is being represented by Donald M. Doherty of Ocean City.

Monday, August 27, 2018

OPRA lawsuit seeks Cumberland County's settlement agreement with former jail guard who was internally charged with bringing contraband into jail for two female inmates with whom he allegedly had sex.

Update:  In a November 2, 2018 consent order, Judge Telsey ruled that the non-profit that I serve as executive director--Libertarians for Transparent Government--is the prevailing party and entitled to court costs and attorney fees.  He redacted the County's settlement agreement with Tyrone Ellis but sealed the redacted agreement until he or the Appellate Division orders it released.  He also issued a written opinion but sealed it until he or the Appellate Division orders it released.  Judge Telsey's order prohibits my attorney from telling anybody--including me--of the settlement terms without his or the Appellate Division's permission.
----------------------------------------
On Tuesday, October 9, 2018 at 9 a.m., Cumberland County Superior Court Assignment Judge Benjamin C. Telsey will hear argument in Libertarians for Transparent Government (LFTG) v. County of Cumberland, et al, Docket No. CUM-L-609-18.  At issue is whether the County may lawfully suppress its settlement agreement with a former corrections officer who was allowed to retire in good standing, with a pension, after having been internally charged with "having inappropriate relationships with two inmates[,] bringing contraband to an inmate, and making up an alias which enabled him to provide [an inmate] with money and to correspond with her[.]"  The County's opposition was filed on September 27, 2018.

According to the minutes of its March 12, 2018 meeting, the Police and Firemen's Retirement System (PFRS) Board approved former Cumberland County jail guard Tyrone Ellis' application for "special retirement" which allowed Ellis to receive a monthly pension benefit of $2,326.12 ($27,913.44 annually) after imposing a "partial forfeiture" of 5.2 years against his 25.2-year career, leaving him with 20 years of pensionable service.  According to the Board, the County filed disciplinary charges against Ellis on August 23, 2016 for having "inappropriate relationships" with two inmates, identified only by their initials J.C. and L.D., and bringing contraband into the jail, including bras, underwear, cigarettes and a cellphone.  L.D. had told investigators that she had a consensual sexual relationship with Ellis starting in March 2015, when she was not incarcerated, which continued after she was put in jail in April 2015.  According to the minutes, L.D. and Ellis engaged in sexual intercourse in the men's locker room in August of 2015 and Ellis sent L.D. "money, written letters, and provided her with a cell phone and cigarettes."  J.C. told investigators that although she and Ellis did not have sex in the jail, she did have sex with him when she was not incarcerated and that he gave her cigarettes when she was incarcerated.

(Note: In 2017, an inmate named Jennifer Cantoni, who may or may not be the same inmate as J.C., filed a lawsuit claiming that she was subjected to non-consensual sex by several jail guards while an inmate at the Cumberland County Jail.  In her lawsuit, Cantoni claimed that Ellis "would find a spot in the hallway that was not covered by surveillance, and coerce [her] into performing oral sex on him."  She accused Officer John Berry of coercing her to engage in "acts rang[ing] from oral sex to sexual intercourse" and alleged that Lieutenant Brad Pierce forced her to perform oral sex on him.  Other similarly accused officers officers are also named in the lawsuit.)

According to the minutes, Ellis resigned but "agreed to cooperate" with County investigators after learning that his resignation would not stop the disciplinary charges from proceeding against him.  His cooperation led to disciplinary charges being filed against four other corrections officers.  On March 1, 2017, according to the minutes, the County and Ellis entered into a settlement agreement "which permitted Tyrone Ellis to retire in good standing and all charges listed on the [disciplinary notice] were withdrawn."

LFTG, a non-profit which I serve as executive director, filed an Open Public Records Act (OPRA) request with Cumberland County seeking a copy of the settlement agreement as well as Ellis' "name, title, position, salary, length of service, date of separation and the reason therefor."   In his July 30, 2018 response, County Counsel Theodore E. Baker wrote that Ellis, who most recently was paid a $75,575 annual salary, "was terminated" even though he also acknowledged that a settlement agreement between Ellis and the County existed.  Baker denied access to the settlement agreement claiming that it was a "personnel record."

In a brief filed on LFTG's behalf, Hackensack attorney CJ Griffin argued that the settlement agreement was an employment contract and not a personnel record. "If Cumberland County's argument is accepted, then agencies would be able to shield the public from knowing about separation agreements, severance agreements, or other settlement agreements that resolve internal disputes with employees. This undoubtedly would lead to corruption, as it would allow the transfer of public funds to public employees via confidential agreements with no public oversight at all," Griffin wrote.  "[A] settlement agreement with an employee does not become a 'personnel record' merely because the agency says so."

LFTG's lawsuit also claims that Baker may have "misrepresented" the reason for Ellis' separation from employment by stating that he was "terminated."  Griffin wrote in her brief that the County "surely intended to make it appear as if they took strong action against Ellis."

Thursday, August 23, 2018

Does OPRA require a Township to inform the public if a cop has been paid for over three years without having to report to work?

On Tuesday, October 9, 2018 at 2 p.m., Burlington County Superior Court Assignment Judge Ronald E. Bookbinder will hear argument in Libertarians for Transparent Government v. Township of Eastampton, Docket No. BUR-L-1158-18.  At issue is whether Eastampton Township must publicly disclose whether one of its police officers has been on paid suspension for over three years.

Earlier this year, I received an anonymous tip that Eastampton Police Officer Diana Welthy (previously known as both Diana Shimonovich and Diana Felenczak) had been on paid leave for three years.  My search of court dockets disclosed that Welthy had filed a sexual harassment lawsuit against her police supervisors in April 2016 that was resolved by a November 15, 2017 Consent Order that "held [her lawsuit] in abeyance because of disciplinary charges filed against [Welthy] by the police department." 

In her lawsuit, Welthy acknowledged that she was suspended and had her badge and weapon taken away on April 27, 2015.  Since the Consent Order stated that "those disciplinary charges [were] relevant to" her lawsuit, it is indeed plausible that the anonymous tipster is correct in stating that Welthy has been on paid suspension from April 27, 2015 through to the present.  (My research also found that Welthy (then Diane Felenczak) sued Eastampton on March 4, 2010 for gender-based harassment.  In April 2011, Welthy and the Township entered into a confidential settlement agreement under which Welthy received $42,500.)

The non-profit for which I serve as executive director, Libertarians for Transparent Government, submitted an Open Public Records Act (OPRA) request to Eastampton for Welthy's "payroll record" and explained that OPRA requires local governments to disclose whether an employee is being paid while not reporting to work.   In its response, Eastampton provided only an "Employee Maintenance" report that did not provide Welthy's actual salary and did not give any information on whether she was being paid for time when she was not working.   (According to DataUniverse, Welthy is earning $91,888 per year from Eastampton.)

My non-profit, represented by CJ Griffin of Hackensack, filed the OPRA lawsuit against Eastampton because we believe that the public, especially Eastampton taxpayers, have a right to know whether or not upwards of $300,000 has been paid to Officer Welthy who may not have worked a single shift for over three years.

Tuesday, July 31, 2018

Lawsuit seeks CDR filed against Bridgeton police detective.

Update: 11/03/18: In an October 30, 2018 order, Assignment Judge Benjamin C. Telsey ordered Bridgeton to disclose the CDR-1 Summons and Complaint against Detective Acevedo and to pay my non-profit's attorneys fees and court costs.
-------------------------------------------------------
On July 20, 2018, Libertarians for Transparent Government, a New Jersey Non-Profit Corporation (LFTG) (for which I serve as executive director) filed a lawsuit against the City of Bridgeton (Cumberland County) due to its refusal to produce a CDR--a summons-complaint form that alleges a criminal or disorderly persons offense--filed against one of its police detectives.

This history of the matter is as follows. On October 25, 2017, LFTG filed an Open Public Records Act (OPRA) request seeking, among other records, a CDR that I learned had been filed in 2017 against Detective Christian Acevedo by New Jersey State Troopers operating out of the Woodstown Barracks.  LFTG stated in its OPRA request that it was making the request to Bridgeton instead of the State Police because "the State Police are notoriously slow in responding to OPRA requests."

In its November 6, 2017 response, Bridgeton claimed that the CDR was "not generated through this jurisdiction" and that it was exempt because there was an "ongoing investigation."  On November 13, 2017, LFTG reached out to Bridgeton's attorney, Rebecca J. Bertram, because the City's November 6th response did not comply with OPRA.  First, LFTG pointed out, the fact that another police agency might have generated the CDR does not matter if Bridgeton actually possesses a copy of that CDR.  OPRA covers records that are "received" by a government agency, not just those that are "made" by the agency.  Second, LFTG argued that OPRA's "ongoing investigation" exception embodied within N.J.S.A. 47:1A-3 does not apply to records that were "open for public inspection, examination or copying before the investigation commenced."  Accordingly, if Bridgeton had a copy of the CDR and if the CDR was publicly available before Bridgeton started its investigation into Acevedo (most CDRs are considered public at the moment they are filed in a court), then the CDR ought to have disclosed in response to LFTG's OPRA request.

On December 6, 2017, Ms. Bertram drafted, but admittedly did not send, a response stating that the City relied upon former Assignment Judge Georgia M. Curio's December 2016 order in Heather Grieco v. Regional Board of Education, Docket No. SLM-L-162-16.  In that case, Judge Curio ruled that a criminal complaint filed against a school board employee became exempt as a "personnel record" when it was placed in the employee's personnel file.  Unfortunately, no appeal was taken from Judge Curio's ruling.    Bertram's response, however, expressly admitted that "[t]he City does have a copy of a CDR filed against Officer Acevedo and is held by the Internal Affairs Department of the Bridgeton Police Department."

In his legal brief, Clinton-based attorney Walter M. Luers, who is representing LFTG in this action, argued that the CDR, which was filed prior to the Internal Affairs investigation's inception, "did not become retroactively confidential."  Luers also argued that CDRs are filed with a court and "enjoy a strong presumption of public access pursuant to Court Rule 1:38."

No hearing has yet been scheduled.  The matter will very likely be heard by Assignment Judge Benjamin C. Telsey within the next several weeks.  Those who are interested in following the case on the on-line ACMS system should reference Libertarians for Transparent Government v. City of Bridgeton, et al, Docket No. CUM-L-504-18.

Thursday, July 26, 2018

Judge: OPRA requires disclosure of golf club's bid to provide recreational amenities at Liberty State Park.

On July 25, 2018, Mercer County Assignment Judge Mary C. Jacobson ordered the New Jersey Department of Environmental Protection (NJDEP) to disclose the sole bid that it received in response to its Request for Proposal (RFP) for recreational amenities in the Caven Point area of Liberty State Park in Jersey City.

The NJDEP and the bidder, Liberty National Golf Club, which operates a golf course adjacent to the Caven Point area, both opposed public disclosure of the bid citing the Open Public Records Acts' (OPRA) competitive advantage exception and arguing that the bid contained confidential and proprietary information.

The plaintiff in the OPRA case, Steve Ramshur, argued that the RFP itself warned bidders that their submissions would be public records and that no competitive disadvantage would result from disclosure because the bidding period had already been closed at the time the OPRA request was received.  "The disclosure of a bid only benefits competitors while the bidding process is open," wrote Ramshur's attorney Walter Luers. "Limiting access to prior bids or responses actually hurts competition . . . because it reduces information that is available to other potential bidders who can perhaps offer a better deal in a future round of bidding."  The legal briefs filed by Ramshur, the NJDEP and Liberty National are on-line here

The wording of the orders suggest that Judge Jacobson will likely allow the NJDEP to continue to withhold disclosure of Liberty National's bid if an appeal is taken from her ruling.  Judge Jacobson also ordered the NJDEP to pay Ramshur's court costs and attorney fees.

Tuesday, June 19, 2018

Names of fired public employees, identified only by their employee numbers, can be obtained through OPRA.

The minutes of some public agencies, often school districts, refer to agency employees by number rather than by name.  For example, the Perth Amboy (Middlesex County) school board's November 2, 2017 meeting minutes state that a majority of the Board (Board members Obdulia Gonzalez and Anton Massopust voted "no") voted to terminate "employee #XXX671" and "employee #XXX985."  This makes it difficult for the public to know which employees have been fired.  (Interestingly, the agenda of the same meeting stated that the Board had planned on approving "a settlement agreement and release agreement" for the same two employees.)

Section 10 of the Open Public Records Act (OPRA), fortunately, requires that "an individual’s name, title, position, salary, payroll record, length of service, date of separation and the reason therefor, and the amount and type of any pension received shall be a government record."  This means that in most cases a person can obtain the name of an employee by making an OPRA request even if the agency tries to obscure the employee's identity in its meeting minutes.

In this case, my non-profit submitted an OPRA request seeking the following:
1. For employee #XXX671, his or her "name, title, position, salary, length of service, date of separation and the reason therefor." See N.J.S.A. 47:1A-10.
2. For employee #XXX985, his or her "name, title, position, salary, length of service, date of separation and the reason therefor." See N.J.S.A. 47:1A-10.
The custodian's response, which is on-line here, contains the full names, ending salaries and years served by the School Security Officer and Custodian who were "terminated for cause." 

Monday, June 4, 2018

Appeals court rules that Union County jail's inmate suicide and overdose fatality incident reports are disclosable under OPRA.

On June 4, 2018, a two-judge panel of the New Jersey Superior Court, Appellate Division affirmed a Union County trial judge's January 3, 2017 ruling that incident reports of Union County Correctional Facility inmate deaths caused by suicides and drug overdoses are, subject to appropriate redactions, subject to disclosure under the Open Public Records Act (OPRA).

Union County based its denial of lawyer Conrad J. Benedetto's OPRA request on an Administrative Code provision that designates inmates' medical and psychiatric records as confidential and exempt from disclosure.  The trial judge, in a January 3, 2017 decision, disagreed with the County's position because Benedetto was seeking incident reports not medical records and ordered the County to disclose the records after redacting personal identifiers.

The County asked the trial judge to reconsider, arguing for the first time that the County did not keep logs or records of inmate deaths and that such information was only kept in each inmate's medical records.  Notably, the County did not offer an affidavit or certification supporting this claim and the judge expressed disbelief that the County did not maintain records related to inmates who died in jail.  The County appealed.

The Appellate Division judges also faulted the County for not submitting an affidavit or certification from a jail official supporting its claims and for instead asserting unsupported facts within its legal brief.  The panel ruled that assertions of fact not contained in a sworn affidavit or certification are not considered evidence and that the trial judge correctly rejected them.  Accordingly, the panel affirmed the trial court's ruling.

The Appellate Division panel's opinion is on-line here.  Benedetto was represented by Walter M. Luers of Clinton.  The County was represented by Assistant Union County Counsel April C. Bauknight.

Wednesday, May 23, 2018

Supreme Court orders disclosure of names and addresses of auction purchasers of confiscated sports memorabilia.

Chief Justice Stuart Rabner
On May 23, 2018, the New Jersey Supreme Court, in a unanimous decision, reversed a July 6, 2016 Appellate Division ruling that held that bidders who successfully purchased confiscated items at a county prosecutor's auction had a reasonable expectation that their names and addresses would be withheld from the public.

In the ruling that was reversed, the Appellate Division weighed several factors, known as the "Doe factors," (named after the 1995 Supreme Court case of Doe v. Poritz), that courts consider when determining whether a person's privacy interests outweigh the public's right to know under the Open Public Records Act (OPRA).  After analyzing the Doe factors, the Appellate Division panel held that the auction purchasers had a reasonable expectation of privacy because if their names or addresses were disclosed, they might become "targets of theft."

In today's decision, Chief Justice Stuart Rabner noted that "OPRA does not contain a broad-based exception for the disclosure of names and home addresses that appear in government records."  He wrote that OPRA protects a "citizen's reasonable expectation of privacy" (emphasis in original) and that in this case, the courts should not have even considered the Doe factors because officials at the Bergen County Prosecutor's Office, who opposed disclosure, "did not present a colorable claim in support of their privacy argument." 

"[I]t was unreasonable for a buyer to expect that the information requested would remain private. If anything, the sale of government property at a public auction is a quintessential public event that calls for transparency. To guard against possible abuses, the public has a right to know what property was sold, at what price, and to whom," Rabner wrote.

The non-profit corporation that I serve as Executive Director, Libertarians for Transparent Government, appeared as amicus curiae in this case and was ably represented by CJ Griffin of Hackensack.  The plaintiff, William J. Brennan, was represented by Donald F. Burke and the Bergen County Prosecutor's Office was represented by Craig P. Bossong.

Friday, March 30, 2018

GRC holds that it was OK for a records custodian to unilaterally grant himself a two-week extension.

In a March 27, 2018 decision, the Government Records Council (GRC) held that the Summit (Union County) school district did not violate the Open Public Records Act (OPRA) by unilaterally granting itself a two-week extension to fulfill a records request.

The request, submitted on June 27, 2016, was for a civil complaint and a settlement agreement.  On July 6, 2016, the school district wrote that the "request requires an extension of time until July 25, 2016 based on anticipated availability."  Attorney Richard M. Gutman of Montclair filed a Denial of Access complaint on July 9, 2016 and the school district disclosed the requested records on July 22, 2016.

Gutman's argument was that OPRA, specifically N.J.S.A. 47:1A-5(i), allows custodians to unilaterally extend the seven business-day response period only if the requested records are "in storage or archived."  The Summit district, however, did not even claim that the records were in storage.  In the complaint, Gutman wrote: "If custodians could extend the seven-day deadline by simply unilaterally granting themselves an extension of time, the seven-day deadline would be meaningless."  (Another provision of OPRA, N.J.S.A. 47:1A-5(g), allows custodians to seek an extension if timely production would "substantially disrupt agency operations." But, in such a case, the custodian is obligated to "attempt[] to reach a reasonable solution with the requestor that accommodates the interests of the requestor and the agency.")

The GRC's Executive Director wrote that "the Council’s long-standing precedent on extensions above is more permissive" and that the extension wasn't unreasonable.  The Executive Director cautioned, however, that "[a]lthough extensions are rooted in well-settled case law, the Council need not unquestioningly find valid every request for an extension containing a clear deadline."

Tuesday, February 27, 2018

Local Finance Board will start posting ethics minutes on-line but will continue to obscure case docket numbers in those minutes.

Among the first orders of business at the Local Finance Board's (LFB) meetings is the consideration of complaints filed against local government officials for alleged violations of the Local Government Ethics Law (LGEL).  While the Board keeps minutes of the portions of its meetings where LGEL complaints are discussed, it has not posted them on the Board's website. Rather, the Board posts transcripts of the other parts of its meetings on-line and requires the public to submit Open Public Records Act (OPRA) requests for the portions of the minutes that record the LGEL complaint discussions. 

In a February 26, 2018 letter, however, LFB Chairman Timothy J. Cunningham promised that the Board will soon begin posting the minutes of the ethics portions on the Board's website. 

Cunningham's letter was in response to my December 22, 2017 correspondence that requested on-line posting of the ethics minutes and for the Board to discontinue obscuring case docket numbers in those minutes.  On the latter point, the Board's practice is to not refer to an ethics case by its case number but by another number that prevents the public from knowing which case is being discussed.

For example, the LFB discussed at its September 13, 2017 meeting an ethics case brought against former Ridgewood Mayor Paul Aronsohn and Manager Roberta Sonenfeld, LFB Complaint No. 16-009.  But, the minutes of that meeting did not refer to "LFB Complaint No. 16-009" but to another number (in this case, III.A.7).  I argued that the use of the separate number made it impossible for the public to know which case was being discussed.

In his response, Cunningham defended the minutes' use of a different numbering system as being necessary to keep the Board from "violating its confidentiality obligations." The LFB has historically assigned paramount importance to the confidentiality interests of accused local officials and very little importance to the public's right to know which officials are being investigated.  In its rejection of New Jersey Foundation for Open Government's 2015 request for earlier disclosure of the identity of public officials under LGEL investigations, the Board wrote that "[d]isclosure of unverified information . . . may impact a [government official’s] standing in the community or employment with a public agency."  Thus, ethics matters are kept completely confidential until a determination is made and ethics investigations often take years to complete.

Wednesday, February 14, 2018

Five members of Borough Council say that they lack an annual source of income in excess of $2,000.

As required by the Local Government Ethics Law, Woodlynne Borough (Camden County) Councilwoman Sharon Earley and her husband, Planning Board Member Robert Earley, both filed Financial Disclosure Statements (FDSs) in 2017.  These filings are intended to disclose basic information regarding public officials' and their family members' sources of income, business interests and real estate holdings.  Their purpose is to inform the public of the sources of the public officials' income so that the public can detect and report conflicts of interest (e.g. a zoning board member voting on an variance application filed by his or her spouse's employer).

But, both Earleys claimed on their FDS forms to have had no sources of income in 2016, earned or unearned, that were in excess of $2,000.  Both also claimed not to have had interests in any business organizations.  The only thing the Earleys disclosed on their forms was ownership of their Cedar Avenue home.  While, I suppose that it's possible for a married couple who are homeowners in New Jersey to not have a source of income greater than $2,000, it seems very unlikely given that the property taxes on the home are more than $2,000.

After reviewing the Earleys' FDS forms, I decided to dig a bit deeper.  I found that, including the Earleys, five Woodlynne Borough Council members who served in 2017 and four 2017 Planning Board members likewise claimed that their households lacked a $2,000 or greater source of income during 2016.

It seems to me that at least some of these officials really do have sources of income greater than $2,000 but would prefer not to report them.  Failure to report, however, is against the law.  Below is the text of complaint I filed yesterday against all nine officials with the Local Finance Board--the state agency that enforces the ethics law.  The Board will conduct an investigation (which generally takes 2 to 3 years) and has the power to levy fines of between $100 and $500 if it finds that the ethics law has been broken.  The complaint names all nine officials and provides links to each official's 2017 FDS filing.
----------------------------------------------------------------
February 12, 2018

Patricia Parkin McNamara
Local Finance Board
101 S Broad St – PO Box 803
Trenton, NJ 08625-0803
(via e-mail only to Patricia.McNamara@dca.state.nj.us)

Dear Ms. McNamara:

We intend this e-mail to be our complaint against the following nine (9) Local Government Officers (LGOs) serving Woodlynne Borough (Camden County) who all held office in 2017 (Note that each name contains a live link to that LGO's 2017 Financial Disclosure Statement (FDS)):

Joseph Chukwueke, Council Member 
Sharon Earley, Council Member 
Alphonso Thomas, Council Member 
Gwendolyn Torres, Council Member 
William Valle, Council Member 
Amy Earley, Planning Board Member 
Robert Earley, Planning Board Member 
Noble Kelly, Planning Board Member 
Devy D. Robinson, Planning Board Member 

1. State the point of the Local Government Ethics Law (LGEL) alleged to be violated. 

N.J.S.A. 40A:9-22.6 which requires each LGO to file an annual Financial Disclosure Statement (FDS).

2. State the name(s) and title(s) of the parties involved in the action and against whom the complaint is filed. 

Complainants are John Paff and the New Jersey Libertarian Party and Respondents are Joseph Chukwueke, Sharon Earley, Alphonso Thomas, Gwendolyn Torres, William Valle, Amy Earley, Robert Earley, Noble Kelly and Devy D. Robinson.

3. Set forth in detail the pertinent facts surrounding the alleged violative action. 

Each Respondent is required to disclose on his or her FDS "each source of income, earned or unearned, which [he or she] received in excess of $2,000."  Knowing the source of officials' income is important because it helps the public detect conflicts of interest that might otherwise go unnoticed.  For example, if an applicant before the Planning Board employs and pays a Planning Board member's spouse more than $2,000 per year, a member of the public so informed could call attention to a conflict of interest if that Planning Board member attempted to vote on the application.  In each of these nine (9) cases, however, the LGO stated that neither the LGO nor any members of the LGO's immediate family had any sources of income in 2016 from which more than $2,000 was received.  While it is perhaps possible for an individual or family to live in New Jersey and have no single source of income of greater than $2,000, it is highly unlikely that five of the seven members of the Mayor and Council and four members of the Planning Board all have no sources of income from which more than $2,000 is derived.  Further, Chukwueke and his wife, Sharon and Robert Earley, Valle and his wife, and Robinson and her husband all report ownership of real estate.  It is general knowledge that real estate taxes in New Jersey would require a source of income in excess of $2,000 to pay.  Complainants allege that each of these nine LGOs and their immediate family members have sources of income in excess of $2,000 but have chosen not to disclose those sources. 

4. Indicate whether the complaint concerns the complainant in any way and what, if any, relationship the complainant has to the subject of the complaint. 

Complainants have no interest in or relationship to this complaint greater than any other citizen or organization who wishes for all government officers and employees to comply fully with the Local Government Ethics Law. 

5. Indicate any other action previously taken in an attempt to resolve the issue and indicate whether the issue is the subject of pending litigation elsewhere. 

No other action has been taken previously in an attempt to resolve this issue and, as far as we know, this issue is not the subject of any pending litigation. 

Thank you for your attention to this matter. I ask that you please acknowledge your receipt of this complaint within 30 days.

Sincerely,

/s/ John Paff, Chairman
New Jersey Libertarian Party's
Open Government Advocacy Project
Voice: 732-873-1251
e-mail: paff@pobox.com

Tuesday, January 23, 2018

Unpublished trial court OPRA opinion.

Unpublished opinions" are not published in the law books and are not ordinarily written about in legal periodicals. Unless somebody puts them on-line and calls attention to them, they are likely not to be located by people who may want to search for them. I think that it's important that court opinions, even if they are not precedential, are easily accessible for future use.

Carin Geiger v. Borough of Englewood Cliffs, et al, Docket No. BER-L-7240-17
Hon. Robert P. Contillo, P.J.Ch.
January 19, 2018
Click here for the court's decision.

Summary:  An e-mail sent by the mayor to a newspaper reporter was not subject to the executive privilege because it does not seek advice that would help the mayor make an informed decision.  Rather, it was the mayor's comment defending actions taken by the Borough Council.  Also, the mayor cannot invoke the Shield Law because that defense can only be invoked by the journalist, not the source.  The Borough was ordered to disclose the e-mail and pay the plaintiff's attorney fees.

Monday, January 22, 2018

Court to hear OPRA case where school board denied access to documents that are publicly available at the courthouse.

On Monday, February 26, 2018 at 10 a.m., Bergen County Assignment Judge Bonnie J. Mizdol will hear argument on whether laws that accord confidentiality to certain student records justify a local school board's decision to deny access to a civil lawsuit that a student filed against the school board.

On October 17, 2017, Libertarians for Transparent Government (LFTG), a public-interest, non-profit (Disclosure: The author is the non-profit's executive director), sent an Open Public Records Act (OPRA) request to the Ridgefield (Bergen County) school district seeking a copy of February 2015 civil complaint filed against the district by "A.B.," a student identified only by his intitules.  In the same request, LFTG also sought a copy of the September 2017 court order that approved the settlement of A.B.'s lawsuit.

In its response, the Ridgefield district denied access to both the civil complaint and the court order based on an October 16, 2017 Appellate Division opinion that, subject to very limited exceptions, mandated complete suppression of all records "related to an individual student" even if the student's name and other personal identifiers are removed.  LFTG's attorney, Walter M. Luers of Clinton, pointed out that unlike other records, the civil lawsuits and court orders that LFTG requested "are public by their very nature and were filed in Court without a sealing order."  Indeed, Luers was able to obtain for the court's new E-Courts on-line system an unredacted version of the September 2017 order that named both the student and his mother by name.  The lawsuit, certification and brief filed in the OPRA lawsuit are on-line here.  The Ridgefield Board's response is here and LTFG's reply is here.

This hearing is open to the public.  If you plan to attend, please call the court offices at 201-527-2280 the day prior to confirm that the hearing date and hour have not changed. Refer to docket number BER-L-8864-17.

Tuesday, January 2, 2018

Court to decide whether to unlock docket and unseal records in special-needs elementary student's rape lawsuit.

Update:  On January 22, 2018, Judge Ciccone denied our motion.  Her Order and Opinion are on-line here.
---------------------------
On Friday, January 5, 2018, Somerset County Assignment Judge Yolanda Ciccone will hear a motion filed by three open government advocates who seek to at least partially unseal court records and unlock the court's docket of a lawsuit filed by a then fourth-grader in the Hillsborough school district who claimed that she was raped multiple times by her former elementary school principal.

The motion, filed by me, along with transparency advocates Donald Baldwin and Paula Baldwin, aims to get at least minimal docket information on a lawsuit filed on June 1, 2017 by a former Hillsborough Township (Somerset County) fourth-grade girl who, according to media reports, claims that she was raped "hundreds of times" by now-retired Woodfern Elementary School Principal Matthew Hoffman.  Currently, every document in the court's file is sealed and the case cannot be located on the Automated Case Management System (ACMS)--the civil court's on-line docket.

I first learned about the case's existence on September 18, 2017 when I visited the Somerset County Civil Division Manager's office for a routine record inspection.  While at the office, I examined a book of court reports that revealed that an "assault and battery" lawsuit was filed by Jane Doe.  After the window clerk denied my request for case documents, I made a formal, written request to the Trial Court Administrator for the order that sealed the file, a redacted version of the civil complaint and even innocuous documents such as cover letters that accompanied case filings and the court-generated notice that advised the parties of the "track" to which the case was assigned.  In an October 6, 2017 letter, Civil Division Manager Mary Braunschweiger denied my request in its entirety.

Later, Donald Baldwin discovered that the case was the subject of a July 26, 2017 New Jersey 101.5 article written by Sergio Bichao titled "Ex-Hillsborough principal raped 4th-grade girl 'hundreds' of times, lawsuit says."  That article reported that Hoffman, while a teacher in the Hopewell Valley Regional School District in the 1980's, was accused in a lawsuit of raping a young man over a four year period.  That accusation resulted in a $300,000 jury verdict against Hoffman in 2015.  According to Bichao's article, Hoffman retired at age 52 shortly after the Hopewell Valley student filed his lawsuit.  No criminal charges against Hoffman have arisen out of either alleged offense.  According to New Jersey pension records, Hoffman's final salary from Hillsborough was $129,724 and he receives a monthly pension of $4,745.

Our motion is being jointly opposed by Jane Doe and the Hillsborough school district.  The opposition paperwork argues that the file was unsealed and the docket was open from June 1, 2017 through to September 15, 2017 when Superior Court Judge Thomas C. Miller sealed both the file and the docket.  The opposition argues that the Baldwins and I should have opposed the sealing motion that Judge Miller decided in September and that it is too late for us to now challenge it.  They also argue that nothing short of a complete sealing of the records and a total lock-down of the docket will protect Jane Doe's privacy.  In our reply, we argue that we did not even know about the case when Judge Miller entered his order and that there should be a way, through use of pseudonyms, document redaction and other devices, for the public's interest in this case to be accommodated while still protecting Jane Doe's privacy.  Under court rules, the burden is on the parties who wish to keep the sealing order in place to show that "good cause" continues to exist for sealing the records.

The Baldwins and I fully respect the young plaintiff's need for privacy.  But, members of the public, especially Hillsborough taxpayers, have a legitimate interest in knowing whether Hillsborough school officials knew or should have known about Hoffman's alleged past conduct but turned a blind eye toward it.

According to Bichao's article, one of the defendants in the lawsuit is Susan Maglia, Hoffman's secretary, who sat outside Hoffman's locked office door during the alleged rapes and watched Hoffman walk the girl to her classes after the office visits.  And, former Hillsborough Superintendent Edward J. Forsthoffer, who is now the superintendent of the Bordentown Regional School District, claimed through his attorney that he and other Hillsborough officials "had no way knowing about the previous allegations because [Hoffman] had never been charged with any crime that would show up in a background check."

The public has an interest in hearing testimony and seeing court records that could disclose whether Maglia, Forsthoffer and other school officials acted reasonably in protecting Jane Doe from harm.  The Baldwins and I believe that Judge Ciccone can balance the public interest in this case against Jane Doe's privacy needs in a way that accommodates both.