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.

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[.]"

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."

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