NJ Open Government Notes

Two new unpublished trial court OPRA opinions

noreply@blogger.com (John Paff) — Fri, 27 Jan 2012 03:53:00 +0000

These 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 I think that it's important that court opinions, even if they are not precedential, are easily accessible for future use.

I have converted the scanned opinions to searchable text versions. Links to the scans are contained within the footers to the live documents.

Terence Jones v. Paulsboro Police Department
Gloucester County, Docket GLO-L-1360-11
Hon. Georgia M. Curio, A.J.S.C.
January 12, 2012
Click here for the opinion.

Regarding Police Use of Force Reports and surveillance video

* * *
Tina Renna v. Union County Alliance
Union County, Docket No. UNN-L-4071-11
Hon. Regina Caufield, J.S.C.
January 25, 2012
Click here for the opinion.

Regarding whether a private non-profit corporation that is closely aligned with, but not created by, a government agency is subject to OPRA.

John Paff, Chairman
New Jersey Libertarian Party's
Open Government Advocacy Project
paff@pobox.com

Dunellen Parking Authority article identifies areas of confusion

noreply@blogger.com (John Paff) — Sat, 07 Jan 2012 20:21:00 +0000

An article appeared in today's (January 7, 2012) Courier News regarding my and the State's questioning of the financial integrity of the Dunellen Parking Authority. The article is on-line here. Background on the issue is on my blog here.

Condensed version: After reading an August 30, 2010 letter from Andrew G. Hodulik, the Authority's auditor, I became concerned by his statement that due to the "inadequacy of [the Authority's] accounting system and records for the year ended December 31, 2008," he wasn't able to determine the amounts of the Authority's "accounts receivable, accounts payable and deferred parking permit revenues [which] are recorded/not recorded on the balance sheet or accompanying financial statements." That letter is on-line at here.

Mr. Hodulik's comment caused me to contact the Division of Local Government Services (DLGS) within the Department of Community Affairs. On November 29, 2011, the DLGS, apparently finding merit to my concerns, wrote the Authority a stern letter noting that for several years it had insufficient controls "surrounding the monitoring of parking permit fees and parking meter collections and proof of collections." The DLGS stated that the Authority's "ongoing failure to resolve the significant [accounting] deficiency . . . is not acceptable" and demanded that it develop a Corrective Action Plan within 90 days. See the letter here.

I felt that the State's finding, which in essence said that that Authority didn't keep records of how much cash it was receiving from meters and permit sales (thus allowing pilfering to occur unchecked), warranted notification of the Borough Council as well as the media. During his research of the matter, Courier News staff writer Sergio Bichao was provided with the Parking Authority's January 6, 2012 letter to the DLGS. That letter is on-line here. This letter indicates that most of the more critical accountability issues had already been addressed in 2004 and 2008.

Bichao's article accurately stated that the January 6, 2012 letter "baffled" me. The matters that confuse me are:

a) Why did Hodulik's August 30, 2010 letter, which was written approximately two years after the Authority had installed the new, improved parking meters in 2008, not indicate that the problem with meter collections had been resolved?

b) Why did the DLGS, after reviewing the matter in late 2011, come to the apparently erroneous conclusion that parking meter collections were not properly accounted for when that problem was allegedly resolved in 2008 when the new, improved meters were purchased.

I've always understood that a government audit's purpose is to professionally evaluate whether public money is being properly safeguarded and accounted for and to clearly report those evaluations to the taxpaying public. In this case, the audit reports apparently did not do their job because the DLGS--the State agency officially tasked with keeping track of local agencies' fiscal integrity--erroneously concluded that the Authority's meter collection and permit revenues were not properly accounted for. If the state agency charged with ensuring the financial integrity of public agencies cannot correctly interpret those agencies' audits, I don't see how a regular citizen is supposed to do better.

Also, the article reveals that the DLGS "does not normally review audits at this level of detail." If this is true, and if the audits are not written in a manner allowing them to be interpreted by the general public, I question whether the audits' value exceeds their expense.

I think that this matter illustrates that some sort of reform is needed on how audits of public funds are conducted and reviewed. Currently, millions of tax dollars are spent by thousands of public agencies across the state for audits that are "not normally reviewed" in detail by the state government and, even when they are so reviewed, are fundamentally misinterpreted.

A custodian's duty to properly explain redactions

noreply@blogger.com (John Paff) — Fri, 30 Dec 2011 20:42:00 +0000

Since I experience the same problems with many different custodians, I find it useful to maintain boilerplate language that I can cut and paste into my letters to those custodians. Here's some boilerplate language that I use when objecting to an OPRA response that does not sufficiently explain why certain matters were redacted (i.e. blacked-out) from a requested record. I have placed this text on-line for your ready reference here.

Dear Custodian:

I am receipt of your correspondence of [date] which accompanied the redacted [describe record].

In your correspondence, you stated that the reason for the redaction was that the redacted text was "privileged." For the reasons stated below, I believe that simply stating "privileged" does not comply with the Open Public Records Act (OPRA). Accordingly, I consider this request still open and offer you an extension until [date] to provide me with either unredacted (or at least more narrowly redacted) responsive records and/or an explanation that properly justifies any redactions that you feel are legitimate.

OPRA, specifically N.J.S.A. 47:1A-5(g), requires records custodians, when denying access to a record in whole or part, to inform the requestor of “the specific basis” for the denial. Beyond stating the “specific basis” for each suppression, the custodian is required to “produce specific reliable evidence sufficient to meet a statutorily recognized basis for confidentiality.” Courier News v. Hunterdon County Prosecutor’s Office, 358 N.J. Super. 373, 382-83 (App. Div. 2003). Further, he or she must explain each suppression in a manner that “without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.” Paff v. New Jersey Department of Labor, Board of Review, 379 N.J. Super. 346, 354-55 (2005) (quoting R. 4:10-2(e)) (emphasis in original).

This requirement was explored by Superior Court Judge John T. Kelley on December 16, 2011 in Paff v. Runnemede Board of Education, Docket No. CAM-L-2865-11. In that case, the Runnemede school board had given Paff redacted minutes of its executive sessions. In an attempt to explain the redactions, the school board provided Paff with a document entitled "Documents Exempt from OPRA request." If you look at school board's February 23, 2011 executive session minutes (on-line here) you'll see a block of redacted text. And, if you look at the board's justification for that redaction (also at the same link), you'll see that Paff was told only that the redactions were justified "pursuant to N.J.S.A. 47:1A-1.1(1)."

Judge Kelley's court order is on-line here. He ruled that the reasons the school board gave Paff for the redactions were "legally insufficient." Judge Kelley also ordered the school board to "file with the Court and serve upon [Paff] a privilege log explaining and justifying each redaction" in a detailed manner as required by law. Finally, Judge Kelley agreed to look at unredacted versions of the executive minutes privately and that the question of whether the school board needed to pay Paff's attorney's fees (in addition to its own fees) would depend on the outcome of his review.

While Judge Kelley's ruling certainly does not bind your agency, it is example of the manner in which courts deal with records custodians who fail to properly explain and justify the redactions they make to records. I imagine that Paff's suit cost the Runnemede school board significant legal fees, and I have no desire to burden your agency's taxpayers with the costs of a lawsuit. Rather, I write to encourage you (with the help of your agency's attorney) to reconsider the way you've explained the redactions you made to the records I requested. Please let me know the results of your review by the extension date set forth above.

Sincerely,

Audits need a close look

noreply@blogger.com (John Paff) — Tue, 27 Dec 2011 17:57:00 +0000

Local government agencies and authorities are required to audit their books annually, and one might think that these audits are sufficient to ensure that everything is on the up and up. But the audits merely point out financial reporting deficiencies--sometimes the same deficiencies year after year--and the agency or authority that paid for the audit may elect to take no corrective action.

A case in point is the Borough of Dunellen's (Middlesex County) Parking Authority. While reviewing the auditor's August 30, 2010 cover letter that accompanied the Authority's 2008 and 2009 audits, I was struck by the following sentence: "Because of the inadequacy of accounting system and records for the year ended December 31, 2008, we are unable to form an opinion regarding the amounts at which accounts receivable, accounts payable and deferred parking permit revenues are recorded/not recorded on the balance sheet or accompanying financial statements. The respective amounts are unknown." I felt that this sentence was significant because it said, in essence, that the Parking Authority, which reported $631,305 in net assets and had $124,798 in cash and equivalents on hand as of December 31, 2009, didn't properly record and account for its income during 2008.

I reported my concerns to the Division of Local Government Services (DLGS) within the Department of Community Affairs. The DLGS, after reviewing its records, learned that the Authority's record keeping deficiencies were not restricted to 2008 but spanned several years. In a November 29, 2011 letter, the DLGS noted that the Authority, for several years, had insufficient controls "surrounding the monitoring of parking permit fees and parking meter collections and proof of collections." Also, the DLGS noted that the Authority had ignored its auditors warnings that "the same person may collect, record, deposit, disburse, analyze and/or reconcile cash and investment activity within the Finance Office and Authority operations."

In sum, it appears that the Parking Authority, which takes in a significant amount of cash from parking meters and through parking permit sales, established an environment where officials could have pilfered that cash without it being known that any cash was missing. Of course, I do not know that any actual theft took place, but the conditions were such that money could have been stolen without detection.

After having allowed these deficiencies to exist, I believe that, at the very least, the Parking Commissioners who were at the helm during this period should not be rewarded with reappointment. Accordingly, I have written to the Mayor and Council recommending that different individuals be appointed to those seats. That letter is on-line here. It will be interesting to see whether the Borough Council heeds my recommendation.

In conclusion, don't assume that an annual audit safeguards the public fisc. Rather, take the time to read the audits carefully to determine whether public money is being properly maintained.

School board member cleared of ethics charges for taping executive session

noreply@blogger.com (John Paff) — Mon, 19 Dec 2011 17:11:00 +0000

In a September 28, 2011 decision, the New Jersey School Ethics Commission held that a Winslow Township (Camden County) Board of Education member did not violate the Code of Ethics for School Board Members by audio-taping a board executive session "without asking permission to do so" and by not informing his fellow Board members "of his intentions prior to taking action."

The Commission found that merely taping an executive session, without more, did not have "the potential to compromise the Board." Given that "[t]here [was] no claim that the [school board member] took action to make public, reveal or disclose information that was not public . . . the Commission [found[ that the complaint, on its face, fail[ed] to allege facts sufficient to maintain a claim that the [board member] violated the [Code of Ethics]."

The decision is on-line here.

Comparing municipal attorneys' billings in multiple towns

noreply@blogger.com (John Paff) — Wed, 30 Nov 2011 03:13:00 +0000

Many attorneys represent more than one government agency. As an experiment, I selected two townships in Cumberland County that are represented by the same lawyer and OPRAed the legal invoices from both. I then compared them side by side and looked for instances in which attorney billed both townships for more hours than seemed reasonable for a single day.

What I found was that the law firm, which I believe employs one attorney, charged the townships a total of $2,175 for 14.5 hours spent attending two court hearings on March 30, 2011. The details are in my letter to both Mayors, which is on-line here.

Clearly, there may be, and probably is, a logical explanation for these billings, but I believe that questioning them is reasonable. If your local agency's attorney works for multiple towns, you may wish to try an experiment similar to mine. I believe that citizens questioning attorney bills will cause government attorneys to be very careful in their billing practices.

OPRA suit filed against State Firemen's Association

noreply@blogger.com (John Paff) — Mon, 28 Nov 2011 23:27:00 +0000

On November 22, 2011, Montclair attorney Richard Gutman filed an Open Public Records Act (OPRA) lawsuit on my behalf against the New Jersey State Firemen's Association (NJSFA). The civil complaint, as well as an order to show cause and brief in Paff v. New Jersey State Firemen's Association, Docket No. UNN-L-4371-11, are on-line here.

Although it received over $24 million in tax dollars during 2010 and distributed over $11 million of that amount to its 538 local firemen's relief associations, most members of the public know little or nothing about the NJSFA. The NJSFA receives a percentage of taxes New Jersey levies against out-of-state insurance companies. With that money, it provides for the care of indigent, injured and deceased firefighters. The NJSFA and its local relief associations serve over 76,000 career and volunteer firefighters.

On September 26, 2011, I filed an OPRA request with the NJSFA. Among other records, I asked for documents revealing how much, if any, past members of the NJSFA's Executive Committee were receiving in pension benefits. In its response to my OPRA request, the NJSFA stated that it "has never considered itself bound by the [Open Public Records] Act." Accordingly, my request for the pension records was denied.

Mr. Gutman and I disagree with the NJSFA's position and believe that it is an OPRA "public agency" because it was created by the New Jersey Legislature or by municipal fire departments back in the 1800's. Either way, we believe that it's a "public agency" under OPRA because, as stated in N.J.S.A. 47:1A-1.1, it was "created by the Legislative Branch" or it was "created by a . . . combination of political subdivisions [of the State]."

The matter has been set down for a hearing on January 6, 2012 at 9 a.m. before Union County Superior Court Judge Regina Caulfield at 2 Broad Street, Elizabeth. The hearing is open to the public, but interested citizens should call the court at 908-659-4810 the day before the hearing to make sure that it hasn't been postponed.

John Paff, Chairman
New Jersey Libertarian Party's
Open Government Advocacy Project

Paff v. Runnemede school board: Motion hearing December 16th

noreply@blogger.com (John Paff) — Sun, 20 Nov 2011 01:23:00 +0000

Readers may recall that attorney Walter M. Luers and I filed a lawsuit in June against the Runnemede (Camden County) Board of Education in an attempt to learn exactly why the board gave former Business Administrator Kelly Brazelton a leave of absence from September 23, 2010 through April 15, 2011 while paying her a $99,465 annual salary. According to media reports at the time, the arrangement was made in order to stave off a lawsuit that Brazelton had apparently threatened to file. Brazelton has since been hired as assistant business administrator in the Deptford (Gloucester County) School District. The lawsuit is on-line here and the school board's and Brazelton's answer to the suit is on-line here.

Walter and I recently moved for summary judgment on the first count of our lawsuit. Summary judgment can be entered by a court when there are no serious factual disputes and that all that is needed is for a judge to apply the law to the undisputed facts of the case. The motion will be heard in Camden County Superior Court on Friday, December 16, 2011. Our motion, certification and brief are on-line here.

Specifically, we are asking the court to order the board to provide a "privilege log" which explains and justifies each redaction it made to the minutes of its nonpublic (i.e. closed or executive) meetings held during the period when Brazelton's leave of absence was being considered. Unfortunately, the board redacted its minutes but gave only vague reasons for those redactions. We are also asking the court to order the board to file unredacted versions of its nonpublic meeting minutes with the court so that a judge can look at them privately (i.e. conduct an in camera review) to determine whether the redactions are proper.

Members of public are welcome to attend the December 16, 2011 hearing on our motion. It will be held at the Camden County Courthouse, probably at 9 a.m before Assignment Judge Francis J. Orlando, Jr. Those who are interested in attending should check the court's website a day or so before the hearing to ensure that it hasn't been postponed or cancelled. Refer to Paff v. Runnemede Board of Education, Camden County, Docket No. L-2865-11.

OPMA Lawsuit against Camden City school board

noreply@blogger.com (John Paff) — Tue, 15 Nov 2011 19:32:00 +0000

A new lawsuit was filed yesterday in Camden County Superior Court that seeks answers to the following questions:

1. How promptly must a public body publicly disclose the nonexempt portions of its nonpublic (i.e. "closed or executive") meeting minutes?

2. Can a public body validly claim that it must first "approve" its nonpublic meeting minutes prior to publicly disclosing even redacted versions of them?

3. Must a public body pass a separate, free-standing resolution in order to authorize a nonpublic session (as required by N.J.S.A. 10:4-13) or is it sufficient for it to pass a motion, which is recorded in the regular meeting minutes?

4. In its N.J.S.A. 10:4-13 motions or resolutions, how specifically must a public body describe the topics it plans to discuss during its nonpublic meetings?

5. In its N.J.S.A. 10:4-13 motions or resolutions, how precisely must a public body state the time when and the circumstances under which the discussion conducted in nonpublic session can be disclosed to the public?

The lawsuit is the joint effort of Camden resident Jose Delgado and me. We're seeking a court order that will bring some clarity to these questions. We plan on bringing the suit's result to the attention of every public body in Camden County. This, we hope, will help establish a legal standard that all those bodies will follow.

Click links for the civil lawsuit and brief.

Did Northfield Police give break to drunk-driving cop?

noreply@blogger.com (John Paff) — Fri, 11 Nov 2011 02:15:00 +0000

On September 29, 2011, Clinton attorney Walter M. Luers filed a lawsuit on my behalf against two Atlantic County municipalities and their police officials seeking disclosure of records pertaining to a curious traffic stop during the early morning hours of February 17, 2011. A copy of that lawsuit is on-line here and a November 10, 2011 Press of Atlantic City article about it is on-line here.

Records I requested reveal that at 2:04 a.m., Northfield City Police observed a black Mercedes sitting at a traffic light while the light went through multiple rotations. Police initially reported that they had difficulty waking the driver and getting him to "open up" the car's door. There were also recorded conversations indicating that the driver was "A.O.B." (which, in police-speak, means "alcohol on breath.")

Later, after Northfield Police determined that the driver was Jeffrey Lancaster, an off-duty Egg Harbor Township police officer, they apparently tried to sanitize their radio communications by saying that Lancaster was "definitely sound asleep" but "no A.O.B." and attributed Defendant Lancaster falling sound asleep behind the wheel at two o'clock in the morning to "moonlighting." Even though Defendant Lancaster was purportedly not drunk, Northfield Police inexplicably asked for Egg Harbor Police Sergeant Michael Hughes to report to the scene to "give [Lancaster] a ride home."

My subsequent records request caused Egg Harbor Township police to admit that they investigated the incident and disciplined Lancaster for violating "several departmental rules and regulations." Yet, the police refused to provide me with access to any of the investigation's records or a report that Sergeant Hughes filed regarding the incident.

OPRA response "The prosecutor said we couldn't release it"

noreply@blogger.com (John Paff) — Fri, 21 Oct 2011 03:10:00 +0000

Have you ever made an Open Public Records Act (OPRA) request for local police records only to be told, "We asked the county prosecutor about your request and he or she said that we must deny it."? If the prosecutor really did say that, then he or she violated a 2006 consent order entered in the case of Deborah Jacobs v. Peter C. Harvey, et al, Docket No. L-3119-04.

I learned about this consent order after Walter Luers and I recently filed a lawsuit in Camden County. One of the defendants, the Borough of Gibbsboro, claimed that they couldn't release a police record because the county prosecutor told them not to. After we sued both Gibbsboro and the Camden County Prosecutor, the prosecutor informed us of the consent order.

Paragraph 1 of that consent order, which is available on-line here states that in "applying the standards set forth in OPRA and any other applicable law, each municipality shall exercise its own discretion in determining whether to release documents sought through OPRA." According to the Camden Prosecutor's brief, which is also available at the link, ever since the consent order was entered, they have "expressly refrained from providing direction or legal advice to municipalities on OPRA issues, other than to suggest how the Prosecutor's Office might respond if a request was made to its OPRA Coordinator."

So, if a local clerk or police department tells you that they can't release records because of advice given by the prosecutor, send them a copy of the consent order and tell them to seek advice from the municipal lawyer.

OPMA case filed in Gloucester County

noreply@blogger.com (John Paff) — Wed, 12 Oct 2011 19:01:00 +0000

On October 6, 2011, an Open Public Meetings Act (OPMA) case was filed in Gloucester County Superior Court. Cheryl Potter, a local resident, brought the suit against each member of the Elk Township Committee. Potter is being represented by John W. Trimble, Jr., Esq. of Trimble & Armano of Turnersville.

In her verified complaint, Potter alleges that the Township Committee discussed topics during its April 19, 2010, May 18, 2010 and April 12. 2011 closed session that ought to have been discussed in public. Potter's suit seeks "an injunction prohibiting Defendants from any future violations of the OPMA by discussing budget matters in closed session." She also seeks the court's in camera review of all minutes, transcripts and audio or video recordings of Township Committee closed sessions held during 2010 and 2011.

The verified complaint in the case, Potter v. Pantaleo et al, Docket No. GLO-L-1739-11, is on-line here. An order to show cause hearing should be scheduled soon.

Hearing this Friday: Curious incident involving Voorhees Police

noreply@blogger.com (John Paff) — Wed, 12 Oct 2011 18:59:00 +0000

On the evening of December 30, 2009, several alarmed citizens called 911 to report that a civilian female was beating up a uniformed Voorhees police officer who was in his patrol car in the Borough of Gibbsboro (Camden County). The audio of those phone calls, as well as police communications regarding this incident are on-line here.

Further investigation revealed that the officer allegedly being beaten was Voorhees Police Officer Richard Taylor and that alleged female assailant was his wife Tracy Taylor. After the incident, Gibbsboro Patrolman Ryan E. Marrlow filed simple assault charges against Ms. Taylor. Those charges were later dismissed.

I heard rumors that a) Officer Taylor had violated police regulations by conducting personal business in Gibbsboro immediately prior to the incident instead of being on duty in Voorhees and b) officials in both Gibbsboro and Voorhees may have not properly investigated Taylor's conduct regarding this incident. In order to test the veracity of this information, I requested records from Gibbsboro, Voorhees and Camden County.

Not surprisingly, I was denied access to many of the records I sought including a) the radio transmission that Officer Taylor made during or immediately after the incident, b) Taylor's "shift log" showing his activity immediately prior to and after the incident, c) mobile data transmissions between other Voorhees police regarding the incident and d) the incident report prepared by Gibbsboro Police.

OPRA attorney Walter Luers filed a lawsuit on my behalf against Voorhees Township and Gibbsboro Borough as well as members of the Camden County Prosecutor's Office and Officer Taylor and his wife. (Paff v. Borough of Gibbsboro, et al, Docket No. CAM-L-4044-11)

The matter is set down for an Order to Show Cause hearing on Friday, October 14, 2011 at 9 a.m., before Camden County Assignment Judge Francis J. Orlando at 101 South 5th Avenue, Camden.

Voorhees, Gibbsboro, the Camden County Prosecutor's Office and the Taylors have all filed opposition to my suit. My lawsuit, the opposition and all other related paperwork is on-line here.

The public and media are welcome to come and observe this suit. Anyone wishing to attend should call Judge Orlando's office at 856-379-2355 on Thursday afternoon to verify that the hearing has not been adjourned.

Runnemede school board apologizes for gaffe

noreply@blogger.com (John Paff) — Sat, 01 Oct 2011 15:31:00 +0000

According to an "Important Notice" on its website, the Runnemede (Camden County) Board of Education "inadvertently published on its website" an unredacted version of its May 10, 2011 executive session minutes. The minutes, which have since been removed from the Board's website, were the subject of my September 29, 2011 post entitled "Do two OPRA requests constitute harassment?" The minutes are available on-line here.

The text of the "Important Notice" is set forth below and is available at the Board's site as well as here.

IMPORTANT NOTICE

ON THURSDAY, SEPTEMBER 29, 2011, AT APPROXIMATELY 11:00 A.M., THE RUNNEMEDE BOROUGH BOARD OF EDUCATION (“BOARD”) INADVERTENTLY PUBLISHED ON ITS WEBSITE UNREDACTED BOARD EXECUTIVE SESSION MINUTES FROM ITS MEETING OF MAY 10, 2011. THE PUBLICATION OF THE MAY 10, 2011, MINUTES ON THE BOARD WEBSITE WAS A MISTAKE. IN RESPONSE, AS SOON AS THE BOARD BECAME AWARE OF THIS INADVERTENT ERROR, THE EXECUTIVE SESSION MINUTES OF MAY 10, 2011 WERE TAKEN OFF THE BOARD WEBSITE. THE BOARD WISHES THE PUBLIC TO KNOW THE FOLLOWING:

1. AT NO TIME DID THE BOARD WAIVE THE ATTORNEY-CLIENT PRIVILEGE WHEN IT INADVERTENTLY PUBLISHED THE MINUTES MENTIONED ABOVE.

2. TO THE EXTENT THAT THE IDENTITY OF INDIVIDUALS OR ENTITIES WERE INAPPROPRIATELY PUBLISHED BY THE POSTING OF THE MINUTES, THE BOARD APOLOGIZES AND EMPHASIZES THAT IT HAD NO INTENTION OF RELEASING THE IDENTITIES OF SUCH INDIVIDUALS OR ENTITES [sic].

3. THE BOARD HAS TAKEN ALL NECESSARY ACTION TO ENSURE THAT THIS INADVERTENCE DOES NOT OCCUR AGAIN.

Do two OPRA requests constitute harassment?

noreply@blogger.com (John Paff) — Fri, 30 Sep 2011 15:51:00 +0000

At the May 10, 2011 Runnemede (Camden County) Board of Education executive session, Board Attorney Philip E. Stern, Esq. said that he would contact me and another citizen "requesting that [we] cease and desist [filing OPRA requests] under possible charges of harassment." The minutes of the closed meeting, which I learned about just today, are available on the Board's site as well as here.

According to the minutes, I and two other citizens were filing Open Public Records Act (OPRA) requests "in an effort to find some information to support [a] suspicion . . . that some fraud or unethical events occurred." Board attorney Phillip Stern opined that "the volume and nature [of the OPRA requests] has been expanding and interferes with the ability to administer the district."

I confess that I am guilty as charged. I filed two OPRA requests with the Board--on April 7, 2011 and May 7, 2011--in an attempt to find out why the Board entered into a settlement agreement with its former business administrator and gave her a seven-month paid leave of absence at her annual salary of $99,465. The Board's responses to my two OPRA requests resulted in my June 3, 2011 lawsuit against the Board: That lawsuit is on-line here.

For unknown reasons, Stern never followed through on his promise to send me a "cease and desist" letter.

Gloucester Prosecutor issues guidelines on public officials' e-mail usage

noreply@blogger.com (John Paff) — Wed, 14 Sep 2011 15:39:00 +0000

On September 13, 2011, Gloucester County Prosecutor Sean F. Dalton sent a memorandum to every municipality in the county "strongly urging" them to "adopt an e-mail policy" for local government officials "in order to uphold the high levels of transparency contemplated by the Open Public Meetings Act (OPMA)."

The memorandum was issued in response to a February 19, 2011 complaint against the Borough of Pitman that Prosecutor Dalton received from the New Jersey Libertarian Party's Open Government Advocacy Project. The Project had complained that a majority of the Pitman Borough Council had "voted" via e-mail to pay a utility bill. Dalton found that "there is sufficient evidence to believe a violation of the OPMA took place" but felt that it was not "in the best interest of the public" for fines to be levied against the Pitman Council members who participated in the improper e-mail.

However, Dalton issued some guidelines, including not having an effective majority of a governing body included in a single e-mail and not conducting "rolling" e-mail communications (i.e. a series of e-mails on official business that eventually involve a majority of the body). Dalton's letter, memorandum and background material are on-line here.

This is the second instance this year where a county prosecutor has responded to the Open Government Advocacy Project's complaints regarding e-mail use by public officials. In an August 4, 2011 letter, Burlington County Prosecutor Robert D. Bernardi made findings similar to Dalton's regarding use of e-mail by Evesham Township Council members. That letter is on-line here.

Atlantic judge rules that DWI videotape is disclosable under OPRA

noreply@blogger.com (John Paff) — Wed, 31 Aug 2011 21:40:00 +0000

Not every New Jersey court decision is published in the law books. The vast majority of them are considered "unpublished opinions" and "shall not constitute precedent or be binding upon any court." See Court Rule 1:36-3. Even though they're not binding, these unpublished decisions can be persuasive to other courts.

One potentially useful unpublished decision was authored by Atlantic County Superior Court Judge Carol E. Higbee on March 3, 2011 in the case of Charles W. Cain, Jr. v. Township of Hamilton. That decision, which is five pages long, is on-line here.

The Plaintiff, Charles W. Cain, Jr., was a local, elected official who had been arrested for driving under the influence (DWI) by Hamilton Township (Atlantic County) police. Cain's field sobriety test was captured on the police car's dashboard mounted camera and the daily newspaper--the Press of Atlantic City--submitted an Open Public Records Act (OPRA) request for the video recording.

When Cain learned that the Press has asked for the recording, he sued Hamilton Township in an attempt to block the recording's release. He argued that the recording was a "criminal investigatory record" and exempt from disclosure. Judge Higbee, however, found that since DWI is not a "crime," the "criminal investigatory record" exception did not apply.

Rather, Judge Higbee found that the only relevant OPRA exception was Hamilton Township's obligation to safeguard personal information to which a citizen has a reasonable expectation of privacy. This privacy exception required the court to balance the public's need for disclosure against Cain's need for privacy.

Judge Higbee found that since Cain was an elected official, Township voters have a legitimate interest in his conduct and his compliance with traffic laws. She found that the public's interest in disclosure exceeded Cain's interest in privacy and thus released the recording.

Cain appealed the ruling but, according to media reports, the Appellate Division declined to reverse it.

Somerset Freeholders revise their closed session policy

noreply@blogger.com (John Paff) — Sat, 27 Aug 2011 03:07:00 +0000

If your local government officials aren't doing what the Open Public Meetings Act (OPMA) requires, one way to get their attention is to threaten to sue them.

That's what I did on August 11, 2011 when I discovered that the Somerset County Freeholders were discussing matters in closed session that should have been discussed in public and were keeping closed meeting minutes that lacked enough detail for the public to understand what was discussed.

So that the Freeholders realized that I wasn't making idle threats, I drafted a civil lawsuit and e-mailed it to the Board advising them that unless I heard from them or their attorney by Friday, August 26, 2011 (i.e. three days after the Freeholder Board's August 23, 2011 meeting), I would file my lawsuit "without further notice."

On August 26, 2011, at 4:37 p.m., I received a letter from Somerset County Counsel William T. Cooper, III providing me with a list of five changes that the Freeholders pledged to make to bring them within OPMA compliance. Mr. Cooper's letter, along with my draft lawsuit, is on-line here.

This is a good outcome because I was able to get compliance without having to burden the taxpayers (and myself) with the cost of litigation.

And, although it sounds difficult and may seem a bit intimidating, it's not really very hard to file a lawsuit without an attorney. I've done it several times and have found that, in most all cases, the courts haven't been hostile to a non-lawyered citizen and have actually been quite accommodating and helpful.

John Paff, Chairman
New Jersey Libertarian Party's
Open Government Advocacy Project

OPRA decision in Hudson County

noreply@blogger.com (John Paff) — Thu, 25 Aug 2011 18:02:00 +0000

One of the things that I try to do is identify and call activists' attention to court cases that construe and apply the Open Public Records Act (OPRA), the Open Public Meetings Act (OPRA) and the common law right of access. Sometimes, these case are filed and adjudicated without anyone noticing.

One such case is Comprelli v. Town of Harrison, Docket No. HUD-L-1179-10. The complaint, two court orders and two written opinions by Superior Court Judge Bernadette N. DeCastro are on-line here.

Here's a thumbnail sketch of the case. Plaintiff owns commuter parking lot in Harrison (Hudson County), New Jersey and asserts that city officials are harassing him by visiting his parking lots daily and counting the number of cars parked there. He submitted records requests to see, among other things, whether his competitors were enduring similar daily inspections. The Town denies his requests for not being on an official OPRA form and for being overly broad. Plaintiff, through his attorney, completes the Town's OPRA form and repeatedly amends and clarifies the request to make it specific as possible. Ultimately, the Town fails or refuses to grant access to the vast majority of the requested records and maintains that the request is overly broad and that pending litigation between the parties permits the records to be withheld.

In her May 4, 2010 opinion, Judge DeCastro determined "plaintiffs have sufficiently amended their requests in a manner which would not require [Harrison] to guess the information that plaintiff is requesting." See rejected the Town's claim that pending litigation was relevant to the request. She also found that to the extent that the Town denied access to public meeting minutes, it violated OPMA. Finally, she found that "the Town has not articulated any concern form confidentiality of the requested records, and as such, there is no basis to withhold these records from plaintiff under the common law."

Plaintiff asked for the court to impose OPRA's civil penalty against the Town's custodian. Judge DeCastro, citing the unpublished Appellate Division opinion in Hirsch v. City of Hoboken, determined that the Superior Court does not have jurisdiction to impose civil penalties.

In her August 26, 2010 opinion, Judge DeCastro found: a) that hourly rate of $450, which was increased to $520 effective January 1, 2010 by lead attorney Paul H. Schafhauser of Herrick, Feinstein LLP was "reasonable and customary;" b) the request was "not a proper request" until it was submitted on the proper form curiously, the Court cites Renna v. Union County in reaching thsi conclusion); c) plaintiff was granted attorney fees of $28,951.36 for work done between March 26, 2010 and July 31, 2010 and d) that plaintiffs is entitled to additional fees for work done after July 31, 2010. In a January 4, 2011 Order, Judge DeCastro ordered the Town to pay an additional amount of fees and costs of $14,687.00.

According to Harrison Town Clerk Paul Zarbetski, the fee award has been appealed and that the trial court has, on July 7, 2011, stayed payment of the fees pending appeal.

John Paff, Chairman
New Jersey Libertarian Party's
Open Government Advocacy Project

Galloway Township OPRA request

noreply@blogger.com (John Paff) — Wed, 24 Aug 2011 17:20:00 +0000

I sent the following records request to Galloway Township (Atlantic County). I appears that some deal regarding the Township Clerk was arranged behind closed doors and that the Township is seeking to keep the details away from the public.

The newspaper articles mention in the request are on-line here and here

John Paff

Please accept this e-mail as my request for government records in accordance with the Open Public Records Act (OPRA) and the common law right of access. Please respond and send all responsive documents to me via e-mail at paff@pobox.com. If e-mail is not possible, please fax responses and responsive records to me at 908-325-0129. Also, I would appreciate it if you would acknowledge your receipt of this e-mail.

Background:

In an earlier request, I asked for minutes of the July 18, 2011 Township Council closed session. I asked for these minutes after readings two Patch articles ("Galloway Township Appoints New Clerk" on August 23, 2011 and "Lisa Tilton Resigns as Township Clerk as Part of Deal Reached Monday Night" on July 19, 2011). A copy of my request and the Township's response is on-line here.

From reading those article, I learned that outstanding disciplinary charges against Tilton would be dropped in exchange for her resigning effective October 3, 2011. In addition to paying Tilton $3,800 for her attorney fees, the agreement "called for all charges pending against her to be dismissed with prejudice and expunged in exchange for her resignation." She will also receive a "neutral reference . . . when contacted by potential employers, including to state she resigned in good standing." This deal was hammered out during a seven hour executive session from which Mayor Hartman recused himself part of the way through.

According to the resolution that authorized the July 18, 2011 closed meeting, there were two issues to be discussed privately: a) "Township Clerk" and b) Chief Financial Officer." According to the resolution, the discussion related to the Clerk would only be publicly revealed as follows: "If employee is terminated, redacted minutes may be available in 60 days. If employee is not terminated, only pursuant to Court Order." For the private discussion related to the CFO, the discussion, as recorded in the minutes, would be release "only pursuant to Court Order."

The July 19, 2011 Patch article indicates that both Tilton and Township Manager Steve Bonanni received Rice notices. And, Deputy Mayor Don Purdy is quoted as saying that the issues involving Tilton and Bonanni "were handled simultaneously because the issues were intertwined. “One had to do with the other,” Purdy said. “We had to talk about Steve because Lisa brought him into it.”

Yet, the July 18, 2011 closed session resolution doesn't mention any issue involving Bonanni that needed to be privately discussed, so it is confusing as to how his issues, whatever they are, were legitimately discussed in closed session.

From what I've read so far, it appears that there was some major controversy that was settled, with taxpayer money, of course, that the Township is now seeking to keep secret. I would like for you to remember that the taxpayers--the ones who are footing the bill for all this drama--have a right to know the real story as to what's going on so that they can determine whether the Mayor and Council acted wisely and appropriately in making this deal with Tilton. These taxpayers vote, and they need to have information on what really happened so that they are fully informed when they cast their votes. My intent is to get the records that reveal what really happened and post them on the Internet so that the voting public can review them.

If you review the South Jersey Publishing case that is cited in your resolution, you might come to the conclusion--as I have--that at the very least, redacted versions of the July 18, 2011 closed meeting should be disclosed. Your decision to completely suppress the minutes until October 3, 2011 "with approval from the Solicitor and Council" appears to be out of step with the South Jersey Publishing ruling.

Be advised that if you continue to withhold the information I seek, I will likely litigate this matter.

Records Requested:

1. Minutes of the July 18, 2011 closed Council meeting, redacted as narrowly as possible, if at all.

2. Rice notice sent to Tilton

3. Rice notice sent to Bonanni

4. Tilton's written response to Rice Notice, if any.

5. Bonanni's written response to Rice Notice, if any.

6. Settlement agreement with Tilton.

7. Disciplinary charges against Tilton, and her or her lawyer's written responses to those charges, redacted as narrowly as possible, if at all.

Thank you!

Useful links

noreply@blogger.com (John Paff) — Mon, 22 Aug 2011 19:17:00 +0000

For those who attended the presentation in Voorhees on August 22, 2011, here are the links that I spoke about:

Open Public Records Act

Open Public Meetings Act

Model Resolution Authorizing Closed Session

Lawsuit filings and decision in Paff. Monroe Board of Education (regarding sufficiency of closed session minutes).

Bergen Judge orders officials to stop using personal e-mail accounts

noreply@blogger.com (John Paff) — Fri, 05 Aug 2011 13:44:00 +0000

In an August 4, 2011 decision, Bergen County Superior Assignment Court Judge Peter E. Doyne considered, among other issues, the question of public officials using private e-mails to discuss public business. Judge Doyne ultimately concluded that using personal e-mail accounts for public business "appears highly questionable" and "order[ed] counsel for [the municipality] to circulate a memorandum among all pertinent Borough employees directing they use only their public e-mail accounts, rather than private accounts, when conducting town business."

This is the first such holding of which I'm aware and it may be useful in convincing other government officials to sent official e-mail communications solely through their governmental e-mail accounts. Judge Doyne's decision is on-line here.

Many thanks to Kevin M. O'Brien, who filed and prosecuted this lawsuit without the aid of an attorney.

Burlco Prosecutor: Evesham official "unwittingly" violated Sunshine Act

noreply@blogger.com (John Paff) — Fri, 05 Aug 2011 13:31:00 +0000

In an August 4, 2011 letter to the attorney for the Eveham Township Council, Burlington County Prosecutor Robert D. Bernardi said that "Evesham Township officials did unwittingly run afoul of the prohibitions contained in the Open Public Meetings Act" by discussing public business by way of e-mail communications. Prosecutor Bernardi, however, declined to impose fines against the officials because that it was a not a "knowing" violation and that "educating public officials who may have mistakenly violated the provisions of the statute is far more effective than the imposition of nominal fines."

The prosecutor's letter, which is on-line here, was sent in response to a complaint filed by the New Jersey Libertarian Party's Open Government Advocacy Project.

Collingswood defends practice of introducing ordinances that haven't yet been written

noreply@blogger.com (John Paff) — Thu, 04 Aug 2011 22:12:00 +0000

N.J.S.A. 40:49-2 specifies the procedure a municipality must follow to pass an ordinance. First, the governing body must introduce the ordinance at a public meeting (called a "first reading") and publish the fact that the ordinance was introduced. Second, not less a week after introduction, the proposal can be given a "second reading" at a public meeting, where after a public hearing, the governing body may vote to enact the ordinance.

The statute, however, presumably to save meeting time and publishing costs, does not require the municipality to read and publish the proposed ordinance in its entirety. Rather, the law allows the proposed ordinance to be read "by title" and published "by title" along with a "concise statement prepared by the clerk of the governing body setting forth the purpose of the ordinance, and the time and place when and where a copy of the ordinance can be obtained without cost by any member of the general public who wants a copy of the ordinance."

While this seems fairly clear, the Borough of Collingswood (Camden County) is interpreting the statute to permit the Borough to introduce ordinances that have not yet been reduced to writing.

According to a June 24, 2011 article by Brett Ainsworth of The Retrospect (http://theretrospect.com), the Collingswood Board of Commissioners introduced "by title" an ordinance governing outdoor cafes at its Monday, June 20th meeting. On Wednesday, June 22nd, Ainsworth asked borough administrator Brad Stokes for the text of the cafe ordinance that had been formally introduced two days earlier. Stokes advise him that since the statute permits ordinances to be introduced by "title only," the Borough was allowed to formally introduce the ordinance even though it had not been written down. A July 1st article by Ainsworth attributes to Mayor Collingswood Mayor Jim Maley the position that "the practice of introducing measures without a completed written version has been done for years in the borough and is perfectly legal."

Serving as an appointed municipal official

noreply@blogger.com (John Paff) — Tue, 19 Jul 2011 15:07:00 +0000

One way to make a difference in your community is to serve as a member of a municipal board. In order to find out what boards have vacancies, submit the following OPRA request to your municipal clerk:

OPRA request

I would like the following government records in accordance with the Open Public Records Act (OPRA) and the common law right of access.

1. The municipality's up-to-date directory of local authorities, boards
and commissions, as required by N.J.S.A. 40A:9-9.2

2. The municipality's "Citizen Leadership Form" as required by the same
statute
.

I submitted such a request to Penns Grove Borough in Salem County and the responsive documents are on-line here.

As you can see, the following vacancies currently exist in Penns Grove: two positions as Planning Board Alternate; one position on the Redevelopment Agency; two vacancies on the Recreation Board and one position on the Shade Tree Commission. Vacancies may also exist in your town.