Friday, March 15, 2019

Appellate Division rules today on OPRA request for fire commissioners' e-mails.

The takeaways from today's two-judge Appellate Division panel's Open Public Records Act (OPRA) opinion in Jeff Carter v. Franklin Fire District No. 1 are:

1.  If you're an OPRA requestor who wants e-mails in their native format, you need to specifically request them in their native or original format.  Don't conflate the terms "medium" and "format."  A record's "medium" is the manner in which a document is produced, such as in paper, as a PDF document or as a video file.  Its "format . . . relates to the file structure of the original application that created the document."  In this case, the requestor did not specify that he sought e-mails in their "native" or "original" format.  Rather, he asked only for "electronic copies of all e-mails."  The panel held that the custodian complied with his request when it provided him with the e-mails as PDF files.

2. If you're a records custodian, it isn't permissible for you to certify that you asked the elected officials to search their own personal e-mail accounts for responsive e-mails and then produce a set of e-mails that are allegedly fully responsive to the OPRA request.  Such a certification is not based on the custodian's own personal knowledge and is therefore not allowed under OPRA.  Unless you conduct the searches yourself or supervise those searches in a meaningful way, there is no way for the requestor to know whether the records you produce constitute a complete set of the responsive records that exist. 

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.
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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.
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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.