NJ Open Government Notes

No attorney fees for common law access cases

noreply@blogger.com (John Paff) — Tue, 07 May 2013 16:15:00 +0000

By way of a May 2, 2013 order, the New Jersey Supreme Court declined to consider my appeal of the Appellate Division's reversal of a trial court's award of attorney fees in a case where I won access to records under the common law right of access but was denied access under the Open Public Records Act. The case is Paff v. Borough of Garwood and background can be found here.

The effect of this ruling is that attorney fees are not available to records requestors who successfully sue for access under the common law.

The Appellate Division's opinion and the Supreme Court's order are on-line here and here, respectively.

Secretary of State OPMA Guidelines

noreply@blogger.com (John Paff) — Mon, 29 Apr 2013 16:38:00 +0000

Published in 1992, the Department of State's "Guidelines on the Open Public Meetings Law" still contains relevant information that can be used to persuade and educate public bodies. For example, page 15 confirms that public meeting minutes must be disclosed when they are prepared, not withheld until after they are approved by the public body.

How much is the Warren County Pollution Authority Director's annual salary?

noreply@blogger.com (John Paff) — Tue, 09 Apr 2013 17:20:00 +0000

Update: 04/11/2013:

I received the following e-mail today from Mr. Williams:

Mr. Paff,

Your e-mail below has been forwarded to all the PCFA Board Members.

You will also find listed below my annual salary as reported on the W-2 forms for the following years:

2008=$96,000

2009=$97,920

2010=$99,879

2011=$106,969

2012=$106,969

2013= As of this date, the Authority has not set or discussed employee raises for 2013, therefore as of this date my salary for 2013 remains at $106,969.

Jim

---------------------------------------------------

April 9, 2013

Robert Davenport, Chairman and members of the Board of the
Pollution Control Financing Authority of Warren County
P.O. Box 587
Oxford, NJ 07863
(via e-mail only to jwilliams@pcfawc.com)

Dear Chairman Davenport and Board members:

As you can see from the subject line of this e-mail, I am interested in learning the answer to what should be a fairly straightforward question: How much does James J. Williams get paid as the Authority's Director of Operations?

A colleague of mine has been working on obtaining an answer since February. First, she submitted an Open Public Records Act (OPRA) request for the contract between Williams and the Authority. She received a February 22, 2013 letter from the Authority advising that the Authority has no such contract.

Next, she submitted an OPRA request for "any resolutions or writings that set forth the basis for [Williams'] compensation." In response, she received twenty pages of records consisting of the Authority's regular and executive meeting minutes. I have put those twenty pages on-line here for your ready reference and my analysis of them follows:

The April 9, 2008 executive session minutes indicate that Williams was awarded a "salary approval of $96,000." No regular meeting minutes regarding this salary were provided.
Page 2 of the March 11, 2009 regular meeting minutes indicate that "2009 Salaries . . . will be discussed in Executive Session." Page 3 of those minutes indicate that Williams' salary was indeed discussed behind closed doors and that the following motion was unanimously approved in public: "Mr. Williams' salary was motioned for approval by Mr. Accetturo, seconded by Mr. Yanoff." Note, however, that the amount of his salary was not set forth in the motion.
The only reference to salaries in the April 28, 2010 regular meeting minutes is Mr. Yanoff's successful motion, on page 3, "to approve pay increases of 2% across the board." This informs the public that Williams, among others, received in 2010 102% of what he had been paid in 2009. This information, of course, is of little utility since actual amount Williams was paid in 2009 remains undisclosed.
Page 5 of the February 23, 2011 regular meeting minutes indicates that Williams received "what basically works out to be a 5% increase . . . for exemplary job performance." Again, however, the base amount to which this percentage increase applies was not disclosed. The February 23, 2011 executive meeting minutes reveal nothing more than that "job titles and salaries" were the sole discussion item during that one hour and three minute closed door meeting. But, fortunately, DataUniverse shows that Williams' 2011 salary was $106,968.
Since they don't mention Williams' salary, it's not clear why the June 27, 2012 regular meeting minutes were provided. The only reference to salaries is Mr. Mach's motion, on page 3, to approve a 1.5% increase for all non-salaried employees. Since Williams is evidently on salary, this motion apparently does not apply to him.

It's more than a bit distressing that the Authority doesn't have records that plainly set out important facts such as the salaries of top officials. Needed are public meeting minutes that contain resolutions such as "Resolved, that the salary of Director of Operations James J. Williams shall be $120,000 for the 2013 calendar year." Such would enable interested members of the public to easily obtain information about the Authority's operations.

Do you agree with me that plainer, clearer resolutions would be in the public's interest? If so, will you agree to discuss this e-mail with the Board at its April 22, 2013 meeting?

If you do elect to discuss this e-mail at the meeting, I would also ask that you discuss the Board's apparent policy of discussing and deciding Mr. Williams' salary during executive session. While I understand why the Board may want to privately and candidly discuss Mr. Williams' performance outside of his presence, I note that both the April 9, 2008 and February 23, 2011 executive session minutes show that Mr. Williams attended these closed-door meetings. Thus, the only people who were kept in the dark about Mr. Williams' salary were citizens and taxpayers--those for whom the Open Public Meetings Act was designed to inform.

A dose of transparency would, in my view, be especially good medicine for the PCFA given the controversy that has surrounded it lately. See, e.g. "Warren County Pollution Control Financing Authority investigation labeled 'whitewash' by whistleblower," Express-Times, August 5, 2012 and "Warren County landfill looks to recoup $116,565 stolen by clerk," Express-Times, March 28, 2012.

Although OPRA doesn't require the Authority to create records that do not exist, would you extend the courtesy of creating and sending me a record that lists Mr. Williams' annual compensation (i.e., the amount reported on his W-2 form) for each year beginning in 2008 and ending with what is projected for 2013?

Thank you for your attention to this matter. I look forward to hearing from you.

Very truly yours,

John Paff, Chairman
New Jersey Libertarian Party's
Open Government Advocacy Project
P.O. Box 5424
Somerset, NJ 08875
Voice: 732-873-1251
Fax: 908-325-0129
e-mail: paff@pobox.com

LFB dismisses ethics complaint against badge-flashing Voorhees Deputy Mayor.

noreply@blogger.com (John Paff) — Wed, 06 Feb 2013 19:39:00 +0000

On January 22, 2013, Thomas H. Neff, chairman of the New Jersey Local Finance Board (LFB) notified me that my ethics complaint against Voorhees Township (Camden County) Deputy Mayor Mario DiNatale was dismissed by a 3 to 1 vote. (The LFB has six members, but only four--Neff, Ted Light, James P. Fox and Francis Blee were present at the January 9, 2013 meeting where the vote was taken. Idida Rodriquez and Alan W. Avery were absent. Neff cast the "no" vote. )

I had complained to the LFB on January 17, 2012 after reading a January 11, 2012 Courier Post article entitled "Abuse of badges may cost them badges" by Jeremy Rosen. The article reported that Berlin Township (Camden County) police officer Wayne Bonfiglio had stopped Deputy Mayor DiNatale on January 5, 2012 for having a rejected red inspection sticker and improperly tinted windows on his vehicle.

According to a January 5, 2012 e-mail that Bonfiglio had sent to Voorhees Police Chief Keith Hummel, when he approached DiNatale's car, DiNatale held a police badge out the driver's side window. Bonfiglio, who "could not believe that a police officer would openly display his badge on a car stop in front of so many witnesses" asked DiNatale if he was a police officer. According to Bonfiglio, DiNatale "simply replied, 'Voorhees Township Police.'"

Bonfiglio, who knew all the Voorhees police but didn't recognized DiNatale, challenged DiNatale's claim that he was a police officer. At that point, DiNatale explained that he was the Voorhees Deputy Mayor and had received a a police badge because served in a "liaison role" as the Township Committee's public safety director.

According to Bonfiglio, he didn't issue DiNatale any summonses "out of respect for [Chief Hummel]. Rather, he told DiNatale to remove the tint from his windows and get his vehicle inspected. He also opted to send his e-mail to Voorhees Police Chief Hummel.

After reading the article, I concluded that DiNatale's actions constituted a violation of N.J.S.A. 40A:9-22.5(c), which states: "No local government officer or employee shall use or attempt to use his official position to secure unwarranted privileges or advantages for himself or others." I felt, and still feel, that flashing a police badge to get yourself out of a ticket falls squarely into the category of using one's official position to secure an unwarranted privilege or advantage.

Yet, the LFB decided to give DiNatale a pass because he had sent an e-mail to Berlin Township Police Chief Joseph Jackson on January 16, 2012 (after the article was published in the Courier Post) "requesting that the appropriate tickets be issued to [him]." DiNatale's magnanimous gesture (i.e. deigning to accept a traffic summons, just like us common folk), in the LFB's eyes, warranted mercy.

After receiving the LFB's dismissal letter, I submitted an Open Public Records Act (OPRA) request to Berlin Township for the e-mails back and forth between DiNatale and Berlin Police Chief Jackson, as well as copies of the traffic tickets that were ultimately issued to DiNatale. In response, I was given a copy of DiNatale's e-mail to Jackson and was told that no summonses against DiNatale were on file. I conclude from this that while DiNatale may have asked to be ticketed, he didn't actually receive any tickets.

So, the way I understand the LFB's view of the ethics law, if a public official is caught trying to use his or her official position to beat a traffic ticket, he or she will be excused from an ethics violation provided that he or she, after being caught, contritely asks for the ticket to be issued. It matters not, however, whether any tickets are actually issued against the public official. Rather, it's the thought that counts.

My ethics complaint, Neff's dismissal letter, the Courier Post article, my OPRA request to Berlin and Berlin's response are all on-line here.

A win, a loss and an adjournment in Belvidere yesterday

noreply@blogger.com (John Paff) — Sat, 02 Feb 2013 19:17:00 +0000

On Friday, February 1, 2013, Warren County Superior Court Judge Amy O'Connor ruled on two Open Public Records Act (OPRA) cases. A third hearing originally scheduled for the same day was postponed. The plaintiff in all three cases was represented by Walter M. Luers of Clinton.

Carroll v. Warren County Community College Foundation
Docket no. WRN-L-385-12

At issue: Whether the Warren County Community College Foundation (WCCCF) is a government agency subject to OPRA. The WCCCF is a non-profit agency that is closely associated with the Warren County Community College (WCCC) and secures grants and donations to fund scholarships for WCCC students. (More information on the suit is set forth in the Express-Times' October 24, 2012 news article.)

Result: Judge O'Connor ruled that the WCCCF is a "public agency" as defined by OPRA. The chief reason for her ruling was that WCCC, under the WCCCF's bylaws, retains the power to approve or reject nominees to the WCCCF's board of trustees. This fact, along with others, caused Judge O'Connor to rule that "the Foundation, in essence, is an instrumentality of the College."

Among the records the plaintiff requested were the minutes of the Foundation's Board of Trustee meetings. The WCCCF's attorney, Suzanne M. Marasco, said that although she had not seen the requested minutes, she felt that it might be unfair for them to be publicly released because the WCCCF Board, when those meetings were held, was operating under the assumption that the minutes would never be made public. Luers countered that the minutes should be treated like a public body's executive session minutes, i.e. they were presumed to be publicly disclosable, but that certain portions may need to be redacted to protect legitimate confidentiality and privacy concerns. O'Connor directed both attorneys to submit briefs on whether or not the minutes should be disclosed.

Carroll v. Phillipsburg Town
Docket no. WRN-L-397-12

At issue: Plaintiff requested a machine readable computer file of the town's 2011 payroll report. The town offered to provide plaintiff, at no cost, with its report in PDF format, which, unlike a report provided in Excel, CSV or a delimited text file, is not easily searchable, sortable or capable of being filtered. According to the town, its third-party payroll administrator, ADP, assesses the town a $150 fee to produce the report in the requested machine readable format--which would need to be paid by the plaintiff in order to get the report in that format.

Result: Judge O'Connor ruled that PDF is a "meaningful medium" in accordance with N.J.S.A. 47:1A-5(d) and satisfied plaintiff's request, even though plaintiff would have to retype the data contained in the report in order to create her own machine readable and manipulable file. Given this holding, the issue of whether the $150 fee was excessive was not reached.

Carroll v. Pohatcong Township
Docket no. WRN-L-413-12

At issue: In a sworn statement, Francesco Pagano, a former Township police officer testified that a police lieutenant "sexually assault[ed] two officers at work." Is the report and other records related to this alleged assault subject to disclosure under OPRA or the common law? Also, is the written agreement that Pagano and Pohatcong entered into at the time of his separation from employment disclosable as a public record?

Result: Hearing postponed until February 15, 2013.

Wrightstown Mayor, wife again cleared of ethics charge.

noreply@blogger.com (John Paff) — Thu, 24 Jan 2013 21:06:00 +0000

On July 10, 2012, I blogged about the New Jersey Local Finance Board (LFB) clearing Wrightstown (Burlington County) Mayor Thomas Harper and his wife Mary Karen Harper of violating the Local Government Ethic Law (LGEL). I had filed a complaint against the Harpers because they, while members of Local Land Use Board, testified on April 14, 2009 in support of a land use application that a) was pending before the same land use board upon which they served, and b) concerned a property that was adjacent to their residence. I argued that even through they recused themselves from the land use hearing, it was still inappropriate for them to testify in support of their neighbor's application in their capacity as private citizens.

On July 24, 2012, two weeks after the LFB dismissed my complaint, the New Jersey Libertarian Party and I filed another complaint against the Harpers based on the same set of facts, plus one more: That Mrs. Harper had received, the year prior to her testimony, in excess of $2,000 from one of the "partner and clients" of the applicant. I felt that Mrs. Harper testifying in support of an applicant after having recently having been on the applicant's "partner's or client's" payroll constituted a clear violation of the LGEL.

The LFB, however, disagreed. In his January 18, 2013 letter, LFB Chairman Thomas H. Neff reported that the LFB had held that public officials are "not prohibited from representing themselves in negotiations or proceedings concerning their own interests" and that such "[s]elf-representation is permitted under the [LGEL] regardless of whether Mrs. Harper is an employee of a company that is allegedly a 'partner and client' of the applicant." Accordingly, the LFB dismissed the complaint as "having no reasonable factual basis for violation of the Local Government Ethics Law."

The Libertarian Party's complaint and the Local Finance Board's dismissal letter are on-line here. We hope that publication of this matter will help local government officers better determine the contours of the Local Government Ethics Law.

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

P.S. The Harpers have beat a total of three ethics charges I have brought against them. Information on the third complaint is on-line here.

Mixed bag in Camden today

noreply@blogger.com (John Paff) — Fri, 11 Jan 2013 22:05:00 +0000

I attended my Open Public Meetings Act (OPMA) hearing today, January 11, 2013, before Judge Stephen M. Holden in Camden. (Background information and case documents are available here.) Following are the court's main holdings:

1. Even though the February 5, 2008 order that I sought to enforce required Lawnside to keep "reasonably comprehensive" minutes of its future closed meetings, Judge Holden decided, based on the context of the order, that Judge Orlando (now retired), who had entered the order, used the word "comprehensive" by error and actually meant to use the work "comprehensible." This ruling resulted in significant harm to my case because "comprehensive" minutes are much more complete than ones that are "comprehensible."

2. Even under the lower "comprehensible" standard, the minutes of the Lawnside Borough Council's March 28, 2011, May 30, 2012 and June 6, 2012 closed session minutes (on-line here, here and here) were insufficient because they did not include: a) the location of the meeting and b) any decisions made (as opposed to "action taken") at the meeting. Further, the March 28, 2011 minutes were not comprehensible because it was impossible to tell from them what a discussion regarding "Public Works - Hours of Operation" entailed, and it wasn't even clear if the matter that was privately discussed legally qualified for discussion outside of the public view.

3. Even though the May 30, 2012 and June 6, 2012 closed meetings lasted, respectively, for 1.5 and 1 hours, Judge Holden found that other than the deficiencies noted in #2 above, they were reasonably "comprehensible" and consistent with the law.

My lawyer, Walter M. Luers, argued that boiling two and a half hours of closed session discussion to the words "discussion ensued" appearing in the minutes was not enough, and that the minutes need to set forth at least a summary of the discussion that actually occurred. Minutes should, for example, state: "The lawsuit plaintiff tendered a settlement offer of $100,000 and all except for Councilman Doe felt that the Borough's attorney should be authorized to offer plaintiff $85,000 and go as high as $100,000 if negotiations failed."

Mr. Luers also offered that in some situations, the detail in the minutes may need to be redacted before public disclosure in order to keep the adverse party from gaining a strategical advantage. Luers then argued that even if closed minutes would forever be redacted, it is preferable to have minutes from which details are redacted rather than minutes from which those details are absent. This is because more verbose minutes would aid future members of the Borough Council who would, of course, be allowed to read the minutes unredacted.

Judge Holden then made what I consider to be an erroneous ruling. He held that a conversation between an attorney and his public body client was so "sacrosanct" that the possibility that some unauthorized person might wrongfully get a copy of an unredacted version of the closed minutes justifies the Borough Council's refusal to record anything regarding the nature of its attorney-client discussions within those minutes. According to Judge Holden, attorney client discussions are so sensitive that they should not even be written down.

4. Mr. Luers argued that since our motion caused the Borough to change its minute recording process, I was the prevailing party and the court should exercise its discretion to award me my attorney fees. Morris G. Smith, Lawnside's attorney, took this opportunity to launch personal attacks against me and to also argue that since I failed to achieve what he alleged was the main point of my motion--to get some details of attorney client conversation captioned in the minutes--that I was not the prevailing party. Judge Holden agreed with Smith and declined to award me my attorney fees. Yet, he did find that my motion met with enough success to warrant an order requiring Lawnside to pay my and Mr. Luers' out-of-pocket costs in filing and prosecuting the motion.

Open Public Meetings Act Showdown tomorrow in Camden

noreply@blogger.com (John Paff) — Thu, 10 Jan 2013 19:02:00 +0000

On Friday, January 11, 2013, at 11 a.m. Camden County Superior Court Judge Stephen M. Holden will hear my "Motion to Enforce Litigant's Rights" against the Lawnside Borough Council. I blogged about the case on November 19, 2012, and that article is available here. In sum, I am trying to get the court to force Lawnside to obey a court order I obtained in 2008 that requires the Borough, among other things, to keep "reasonably comprehensive" minutes of its executive sessions. (Note that this standard is apparently stricter than the "reasonably comprehensible" standard required by N.J.S.A. 10:4-14.)

Lawnside's attorney, Morris Smith, has been particularly hostile toward my application, claiming that it is "frivolous and apparently intended to cause the Borough of Lawnside needless expense." Lawnside has asked the court to make me pay the Borough's attorney's fees and court costs, given the alleged frivolity of my attempt to make the Council obey the 2008 court order.

Readers who are in the Camden area tomorrow may want to stop by and observe this contest. Judge Holden's courtroom is at 101 S. 5th Avenue, Camden, and I am being represented by Walter M. Luers of Clinton. The motion paperwork, Smith's opposition and my reply are available here.

Neptune Cop Car Crash Reports On-line

noreply@blogger.com (John Paff) — Wed, 09 Jan 2013 21:44:00 +0000

On December 20, 2012, I posted an article that demonstrated how readers could, using publicly available, on-line data, sort and filter that data to identify motor vehicle accidents that met certain, specific criteria. The criteria used in my article were motor vehicle crashes a) occurring during 2011 in Neptune Township (Monmouth County) and in which b) at least one police vehicle was involved. In my article, I identified nine motor vehicle crash report numbers that met these criteria.

I recently received redacted versions of the nine crash reports and have placed them on-line here. Readers may be interested in seeing the details and circumstances surrounding these police car crashes.

I've made a few observations:

In five of the crashes (Reports 2011-27802, 2011-28768, 2011-15664, 2011-21507 and 2011-18050) it is fairly clear that the police officer was not at fault. In three of these crashes (Reports 2011-28768, 2011-21507 and 2011-18050), the other driver (i.e. the driver who was not a police officer) was issued at least one motor vehicle summons.
2011-18052 involved two police cars driven by Ocean Township police officers. Both Ocean officers, Mark J. Deltin and Matthew R. Guido, were responding to back up Neptune Township officers who were at the scene of a "large fight." When approaching the scene, Officer Guido "slowed and began to stop" while Officer Deltin, "didn't see [Guido] stopping in front of him," striking him in the rear. Both officers were transported to the hospital and both police cars were towed away. Officer Deltin was not issued a motor vehicle summons.
In three of the crashes (2011-32388, 2011-23592 and 2011-35222), either the officer looked to be at fault or there was a factual dispute between the drivers noted in the report:

In 2011-32388, Neptune Township Police Officer Marques J. Alston stuck a civilian's car in the rear. Alston claimed that the civilian "suddenly changed lanes into his lane and then abruptly stopped" while the civilian reported that he was simply waiting at a red light when Officer Alston struck him in the rear. Neither driver received a motor vehicle summons.

In 2011-22592, Neptune Township Police Officer Joseph J. Grabas was travelling east on Highway 33 and made a left turn when he was struck by a civilian vehicle travelling in the opposite direction. Officer Grabas said that he saw the civilian's vehicle "but thought that he had enough time to make the turn." The civilian said that she was travelling west on Highway 33 when the police vehicle "suddenly turned left in front of her" causing her to strike the police vehicle which "forced her into" another vehicle that was waiting at a stop sign. None of the three drivers received a motor vehicle summons.

In 2011-35222, Asbury Park Police Officer Antonio Martinez was responding to an emergency and, with lights and sirens activated, passed the civilian's car on the left and then made a right turn in front of the civilian's car when impact occurred. The civilian said that when she saw Officer Martinez's patrol car approaching from the rear, she "pulled to the right side of the road." She said that Officer Martinez, when executing his right turn in front of her vehicle, struck "her stopped vehicle on the front driver's side." Officer Martinez, however, claimed that while the civilian initially stopped, she started to pull forward while he was executing his right turn, which caused the collision. The civilian was issued a summons for failing to yield to an emergency vehicle.

Government Records Council declines to issue advisory opinion

noreply@blogger.com (John Paff) — Mon, 07 Jan 2013 20:10:00 +0000

The Government Records Council (GRC) was created in 2002 when the Open Public Records Act (OPRA) was signed into law. One of the things that OPRA requires the GRC to do is "issue advisory opinions, on its own initiative, as to whether a particular type of record is a government record which is accessible to the public." (N.J.S.A. 47:1A-7(b))

Since its creation, however, the GRC has issued only one advisory opinion and it had nothing to do with "whether a particular type of record is a government record which is accessible to the public." Rather, the advisory opinion, rendered in 2006 (and numbered Advisory Opinion No. 2006-1), forced requestors to use an agency's particular OPRA form, if the agency had adopted one. As can be seen by my blog entry here, this requirement caused practical problems for requestors when an agency declined to make its request form available on its Internet site. Fortunately, the GRC was forced to repeal 2006-1 after it was overruled by the Appellate Division in Tina Renna v. County of Union, 407 N.J. Super. 230 (App. Div. 2009).

So, as it stands now, the GRC has not issued a single advisory opinion that is still in force since its establishment over ten years ago.

I believe that state agencies, like the GRC, ought to honor and fulfill their statutory mandates. Also, I think that well reasoned advisory opinions by the GRC would really help both requestors and custodians navigate and better understand OPRA. To that end, on October 9, 2012, I sent the GRC a rather straightforward request for an advisory opinion. My request sought to clarify the position taken by some school districts that they had to redact students' names and identifying information from civil lawsuits even though undredacted versions of those lawsuits were available from the court clerk. I've put my request on-line here. I felt, and still feel, that it's silly for one government agency to suppress information that is readily available from another government agency, and thought that the GRC might be able to inject some sense into this matter through an advisory opinion.

But, unfortunately, GRC Acting Executive Director Karyn G. Gordon informed me today that the Council considered my request at its December 18, 2012 meeting and, without further explanation, "declines to issue an advisory opinion on this issue." Gordon's e-mail is on-line here. Perhaps the issue I presented wasn't important enough to warrant the GRC's attention. Or, perhaps the GRC doesn't want to break its ten-year streak of not issuing valid advisory opinions, even though issuance of such opinions is mandated by state law.

Warren Prosecutor: My "generalized interest" insufficient to identify officers who took county owned generators.

noreply@blogger.com (John Paff) — Sun, 06 Jan 2013 21:04:00 +0000

I had recently requested records from the Warren County Prosecutor that would identify the Warren County jail officers who took county-owned generators for their personal use in the aftermath of Superstorm Sandy. Today, I received a polite brush-off from Assistant Prosecutor Tara J. Kirkendall. My records request and Kirkendall's response are on-line here.

Kirkendall disclosed that her office's Major Crimes Unit initiated an investigation into this matter on November 19, 2012 and opened up Investigation Case Number IN12-096. Kirkendall was also good enough to identify thirteen documents within the file that she said could not be released, mainly because they are claimed to be covered by the Open Public Records Act's (OPRA) "criminal investigatory record" exception. She did, however, disclose two documents--an "Investigative Closeout Review" and Prosecutor Richard T. Burke's December 21, 2012 letter informing Sheriff David Gallant that there was "insufficient evidence to continue [his] investigation at this time." The accused officer's name, however, was redacted from both records.

As to my right to documents under the common law right of access, Assistant Prosecutor Kirkendall advised me:

As you are aware, under the common law, the right to examine documents rests upon a showing of some personal or particular interest in the material sought, balanced against the public's interest in the confidentiality of the material. You indicate that you are a "citizen keenly interested in openness and transparency in all parts of New Jersey" and you believe that the individuals involved should be "publicly identified". As no criminal charges were filed and the matter was handled as an internal affairs/personnel matter, the public's interest in the confidentiality of the material is not outweighed by your generalized interest in the documents under the common law.

I am considering litigating this matter.

20 years later: Still Unclear on Local Prosecutors' and PDs' Duty to File Financials

noreply@blogger.com (John Paff) — Fri, 28 Dec 2012 00:54:00 +0000

By statute (N.J.S.A. 2B:25-4 and 2B:24-3), every New Jersey municipal court must have at least one municipal prosecutor and at least one municipal public defender. Since these positions are common to almost every municipality in the state, one would think that question of whether the holders of these offices are "local government officers" who are required by the New Jersey Local Government Ethics Law (LGEL) to file an annual "Financial Disclosure Statement" has long ago been settled. Unfortunately, there is still confusion regarding the prosecutors' and public defenders' filing requirements, which is distressing since the LGEL became effective on May 21, 1991--over twenty years ago. Simply put, I don't think that it's unreasonable to expect most towns to be on the same page as to what the law requires after that law has been in existence for over twenty years.

But, if you submit an Open Public Records Act (OPRA) request with your town, as I did with Morris Township (Morris County), seeking the Financial Disclosure Statements filed by the prosecutors and public defenders, don't be surprised if you are told, as I was, that the prosecutor and defender are exempt from the filing requirement because the Attorney General, in 1991, deemed them to be "court personnel" who are not required to file. But, the Attorney General Opinion Letter that these towns invariably rely upon, AO-91-0096, contains a very important footnote on page 6 stating that "a municipal court prosecutor and a municipal court public defender are not considered part of the judicial branch of government." In other words, while municipal court judges and administrators are exempted by the Opinion Letter from the filing requirement, prosecutors and defenders are not.

When I first realized, in 2008, that many municipal governments had not read AO-91-0096 correctly, I wrote to the Local Finance Board within the Division of Local Government Services and suggested that "there shouldn't be such uncertainty over this rather straightforward issue" and invited the Board to "clearly decide the question and to publicly disseminate its decision so that municipal clerks and prosecutors around New Jersey can be properly guided." My August 21, 2008 letter to the Board, which is available here, has never received a response.

Accordingly, more than four years later, I am still slugging it out--one municipality at a time--over the issue of whether prosecutors and public defenders are required to file. I frequently find cases like Morris Township, where the officials genuinely are confused by the ambiguity in the law and, after reading my correspondence, decided that I was right and required their prosecutor and public defender to make their financial filings. My letter to Morris Township and the Township's response are on-line here. (I don't mean to impugn Morris Township officials by this posting as they were simply abiding by the vague and incomplete information that the state gave them and are probably as frustrated as I am over state agencies' inability or unwillingness to clarify the policies that the agencies expect the municipalities to enforce.)

What does concerns me, however, is that it shouldn't be so difficult for a citizen who recognizes a general problem with the execution of a statute to get the agency in charge of that statute to resolve the problem. All the Local Finance Board would need to do is issue a simple bulletin (or Local Finance Notice) to each municipality in the state (the Board issues such notices regularly) advising them of the ambiguity and instructing the municipalities on how to deal with it. And, while the filing or non-filing of a Financial Disclosure Statement by municipal prosecutors and defenders may not be the biggest problem confronting New Jersey, it does underscore a problem that plagues us in New Jersey and beyond--a total lack of expectation for anything resembling excellence, or even competence, within many of the institutions that churn out the reams of the sometimes conflicting, and often vague, regulations that we are required to live under.

I am sending a copy of this posting to the Local Finance Board, in hopes that they will deem it appropriate to issue the Local Finance Notice that would clarify this matter. In the meantime, I'll keep proceeding as I have--one town at a time.

Publishing the "amount" of no-bid government contracts

noreply@blogger.com (John Paff) — Sun, 23 Dec 2012 20:11:00 +0000

Many local governments, annoyingly, do not publish the "amount" of their no-bid government contracts in the newspaper, even though such is required by statute. Following is my letter to the Division of Local Government Services (within the Department of Community Affairs), seeking across-the-board enforcement of this requirement.

I explain in my letter how citizen enforcement of New Jersey's so-called "Pay to Play" laws is stymied when local governments do not publish the "amounts" of their no-bid contracts.
----------------------------------------------------------------------------------------------------------------

December 23, 2012

Thomas Neff, Director
Division of Local Government Services
(via e-mail only)

Dear Mr. Neff:

As you are aware, N.J.S.A. 40A:11-5(a) requires local governments, each time they award a no-bid contract for professional services, to place a notice of the award in the local newspaper. The statute specifies that the notice shall contain "the nature, duration, service and amount of the contract." (Emphasis added).

Unfortunately, many municipalities do not report the "amount" of the no-bid contracts they award and instead only advise the public, through the local paper, that the no-bid contracts, which would disclose the amount, are available for inspection at the town clerk's office.

An example of this is found in the January 13, 2011 public notice published in the Gloucester County Times by the Township of Deptford (on-line here). As you can see, the notice recites a number of no-bid contracts awarded to professionals, but does not disclose the "amount" of any of them.

Since the statute requires the "amount" of each no-bid contract to be published, your office, without more, should be willing to enforce that requirement against entities, such as Deptford, that violate the rule. But, I would like to explain the practical difficulties that I--as well as others--face when this requirement is not obeyed.

One of the professionals to which Deptford awarded a contract is Michael J. Silvanio, Esq., who was appointed on January 3, 2011 as Deptford's "conflict prosecutor." Yet, Silvanio, on October 14, 2010, contributed $500 to Deptford Township Democratic Executive Committee (see the Election Law Enforcement Commission report, on-line here).

If Silvanio was awarded the contract under a "non fair and open process" (i.e. one without competitive proposals being received), then it would be legal for him to have made this contribution only if the amount of the awarded contract did not exceed $17,500. Thus, in order for me or others to know whether or not the so-called "Pay-to-Play" laws have been violated, we need to know the "amount" of each no-bid contract that is awarded.

Since Deptford has not abided by the statutory requirement, anyone who wants to determine whether or not the law has been violated needs to submit an OPRA request to Deptford in order to learn the amount of Silviano's contract--something that we should be able to learn simply by reading the newspaper.

Would the Division distribute a Local Finance Notice, or otherwise remind local governments of the statutory requirement to include the "amount" of each professional services contract they award within the legal notice published in the local newspaper? If not, would the Division at least remind Deptford of this responsibility?

Thank you for your attention to this matter. I look forward to hearing from you.

Sincerely,

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

cc. Hon. Paul Medany, Mayor and members of the Deptford Township Council (via e-mail to dzawadski@deptford-nj.org)

My letter to Glassboro's auditor

noreply@blogger.com (John Paff) — Sun, 23 Dec 2012 03:23:00 +0000

I question whether Glassboro Borough (Gloucester County) is appropriately awarding Conflict Public Defender positions to local attorneys without (apparently) entering into written contracts with them or publishing the awards in the newspaper. So, I took some time today to write to the Borough's auditor about this problem (see my letter below).

Funny thing. Not until I was almost done with the letter did I happen to check the Election Law Enforcement Commission (ELEC) website and learn that the auditor himself recently contributed $3,000 to the campaign of two incumbent Glassboro council members. See the third page of the document that is on-line here.

This financial connection made me lose a bit confidence in the auditor's ability to objectively review Glassboro's policy!

--forwarded message

December 22, 2012

Nick L. Petroni, RMA
Petroni & Associates
21 W. High St.
Glassboro, NJ 08028
via e-mail only to nlp@petroni.com

RE: Borough of Glassboro--Conflict Public Defenders

Dear Mr. Petroni:

I understand that you are the auditor for the Borough of Glassboro in Gloucester County. I reach out to you in that capacity because I believe that the Borough may not be appointing its Conflict Public Defenders in a proper manner.

As can be seen by the purchase orders (on-line here), the Borough is paying out thousands of dollars for Conflict Public Defenders. (The purchase orders at the link above, submitted by Michael Silvanio, Esq. and John C. Iannelli, Esq., are illustrative only, and represent only part of the $6,800 that was paid out so far in 2012 for Conflict Public Defenders.)

Yet, as can be seen by the Borough's hand-written responses to paragraphs 2 and 3 of my OPRA request (on-line here), there are no contracts, resolutions or published newspaper advertisements relating to the Borough's award of Conflict Public Defender jobs to Silvanio and Iannelli. As you can see from the legal advertisements (on-line here), other municipalities, including nearby Franklin Township, formally award Conflict Public Defender positions and advertise those appointments in the newspaper.

Glassboro's policy of having no apparent formal process for awarding taxpayer money to Silvanio and Iannelli is troubling for at least two reasons. First, according to the purchase orders, both Silvanio and Iannelli are charging the taxpayers $200 per case or hour. But, what writing establishes that the correct rate is $200 as opposed to $150 or some other number? (Note that according to its public notice, Egg Harbor is paying its Conflict Public Defender only $95/hour.) Also, both Silvanio and Iannelli are frequent contributors to area political campaigns, as shown by the Election Law Enforcement Commission reports (on-line here) While neither reportedly gave money directly to Glassboro municipal candidates, their donations show that they are participants in local party politics, which is all the more reason that the public should be informed of the fact that these attorneys are being paid with public dollars.

I hope that you will evaluate the propriety of Glassboro's practice. If you find that Glassboro's procedure is not legal or appropriate, I ask that your audit report recommend an amendment.

Very truly yours,

John Paff

cc. Mayor McCabe and the Borough Council, (via e-mail to the Borough Clerk at PFrontino@glassboro.org)

NJ Motor Vehicle Crash data on-line

noreply@blogger.com (John Paff) — Fri, 21 Dec 2012 02:50:00 +0000

At last night's New Jersey Foundation for Open Government (NJFOG) meeting, I learned that New Jersey keeps a comprehensive database of motor vehicle accident data on the Internet here. I'm posting this for those might find it useful to know, for instance, how many school bus accidents occurred in a given county or town within a given year.

I played with the data for a while to see if it might help me isolate accidents in which government vehicles were involved. Just for fun, I decided to see how many car accidents took place in Neptune Township (Monmouth County) during 2011 in which at least one of the vehicles was a police car. I found ten such accidents and have listed them in the PDF file I've placed on-line here. If I wanted to, I could now OPRA each of the accident reports to learn more about what exactly occurred in these accidents.

I didn't need any special software to do this, I used a text editor, a text sorting program, both of which I got for free off the Internet, and Excel (which I already have) to format the PDF file. Without getting into too much detail, here are the basic steps I took:

1. Went to the above listed site and downloaded the "raw data" from Monmouth County in 2011. I downloaded two files, "Accident" and "Vehicle."

2. Using the "Vehicle Table" and "Accident Table" on the same site, I learned the various column positions within each file at which certain data fields began.

3. Also at the site, I looked up "County and Municipal Codes" and learned that Neptune Township's code is 1334.

4. I sorted the "Vehicle" file on columns 4-7. Then I opened up the "Vehicle" file in my text editor and deleted all the accidents that happened somewhere other than 1334 (Neptune Twp). This gave me a more manageable file to work with that contained only vehicles involved in accidents in Neptune Township.

5. I sorted the resulting file on columns 130-131, which is the two digit code for "Special Function Vehicles." This allowed me to filter for police cars ("02"), fire/rescue ("04"), ambulances ("05"), school buses ("09"), etc.

6. I then boiled the file down to just 10 entries in which police cars were involved. I then searched the "Accident" file for each of the unique "Police report number" from those 10 entries to get more information for the attached table. If I wanted, I could have searched the "Driver" file in the same manner and gotten other information, such as the drivers' dates of birth, whether summonses were issued, etc.

There are probably better ways to do this, but this is what I can do with my limited computer skills.

Unpublished trial court OPRA opinion

noreply@blogger.com (John Paff) — Wed, 12 Dec 2012 18:19:00 +0000

"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.

Rivera v. Bergen County Prosecutor's office
Bergen County, Docket No. BER-L-4310-12
Hon. Peter E. Doyne, A.J.S.C.
December 11, 2012
Click here for the opinion.

Judge Doyne's opinion clearly and comprehensively explains the law regarding attorney fee awards to successful Open Public Records Act (OPRA) plaintiffs. Among the issues discussed are: a) paying a lawyer's full hourly rate for work that can be done by a secretary or paralegal, b) paying a lawyer's hourly rate for travelling back and forth to the courthouse, c) paying a lawyer for the time it takes to prepare the lawyer's fee application, d) reducing a lawyer's fee when he or she is less than 100% successful and e) paying a lawyer a "contingency fee enhancement" in addition to his or her regular hourly rate multiplied by the number of hours worked.

State: Parsippany Mayor's letter, on Township letterhead, asking judge for "leniency" was within ethical bounds.

noreply@blogger.com (John Paff) — Tue, 11 Dec 2012 02:35:00 +0000

In a November 21, 2012 letter, Local Finance Board Chairman Thomas H. Neff reported that Board cleared Parsippany Mayor James Barberio of ethical wrongdoing for writing a Superior Court judge a letter on Township letterhead asking for leniency for a friend's 26-year old son who was facing drug charges. In his letter, Neff noted that "Mayors have no direct statutory involvement with the selection of Superior Court judges or county prosecutors." Neff further stated that "elected officials do not, upon taking office, give up their right to support friends and neighbors that other community members may provide." After finding that Mayor's letter did not violate the Local Government Ethics Law, the Board "voted to dismiss the complaint as having no factual basis."

The ethics matter was initiated by a January 19, 2012 complaint by John Paff, Chairman of the New Jersey Libertarian Party's Open Government Advocacy Project. Paff's complaint was based on two articles (here and here) that he had read in the Parsippany Patch. According to the articles, Barberio wrote to Superior Court Judge David H. Ironson on behalf of Daniel Moses, the son of Barberio's friend, who was facing sentencing after pleading guilty to conspiracy to distribute eight pounds of marijuana. According to the articles, the letter, which was written on Township letterhead, said "I hope the court will be as lenient as possible when sentencing Daniel ..." A member of the public criticized Barberio for using Township letterhead because the leniency request "does not represent the citizens of Parsippany." Also, according to the articles, an unnamed Morris County assistant prosecutor stated that the letter was inappropriate because the Parsippany-Troy Hills Police Department was involved in the investigation and prosecution of Moses.

According to the articles, Township attorney John Inglesino wrote that questioning the appropriateness of the letter revealed a lack of knowledge regarding how the legal system works. Justin Marchetta, an associate in Inglesino's law firm, is quoted as saying that Mayor Barberio's letter was "legal, ethical and appropriate."

The complaint and the Local Finance Board's determination are on-line here.

Court invalidates action taken at Development Board's special meeting

noreply@blogger.com (John Paff) — Mon, 26 Nov 2012 21:37:00 +0000

In a October 26, 2012 decision, Hunterdon County Superior Court Judge Peter A. Buchsbaum voided the findings and resolutions the Hunterdon County Agriculture Development Board made at its August 9, 2012 meeting. Buchsbaum faulted the Board's meeting notice which did not: a) inform the public "whether formal action may or may not be taken" and b) did not include the agenda of the meeting "to the extent known." Both of these requirements are set forth in N.J.S.A. 10:4-8(d). In ruling on the agenda, Buchsbaum found that the Board's "agenda is not merely deficient -— it is nonexistent." The opinion in this case, Bailey v. Hunterdon County Agriculture Development Bd., 2012 WL 5830158, Docket No. HNT-L-354-12, is on-line here.

Unfortunately, Buchsbaum did not award the pro se plaintiff, Marie Bailey, her costs resulting in her being reimbursed the $250 or so that she paid in filing fees to bring this action. In so ruling, Buchsbaum held that "[u]nlike the Open Public Records Act, OPMA provides no provision for attorney’s fees. Compare N.J.S.A. 47:1A-6. Plaintiff cites to no rule which provides any basis for said reimbursement." With all due respect, I believe that the judge erred. I have been awarded costs in many of my pro se OPMA lawsuits under the authority of Gallo v. Salesian Soc., Inc., 290 N.J. Super. 616, 660 (App. Div. 1996) in which the Appellate Division stated:

R 4:42-8(a) provides: “Unless otherwise provided by law, these rules or court order, costs shall be allowed as of course to the prevailing party.” The judge here expressly found that plaintiff was a prevailing party. He should have awarded her costs “as of course” under the rule.

OPMA suit filed in Hunterdon County

noreply@blogger.com (John Paff) — Mon, 26 Nov 2012 20:27:00 +0000

On November 8, 2012, a Pittstown woman, working without an attorney, filed an Open Public Meetings Act (OPMA) lawsuit against the Franklin Township (Hunterdon County) Land Use Board. A copy of the lawsuit, captioned Bailey v. Franklin Township Land Use Board, Docket No. HNT-L-617-12, is on-line here.

In her suit, Marie Bailey alleges that the Board notified only one newspaper, instead of the two required by N.J.S.A. 10:4-8(d), of an upcoming special meeting. She also alleges that the Board violated the OPMA by not providing her with draft minutes of the special meetings when she requested them over a month after the meeting took place.

The matter has been assigned to Hon. Peter A. Buchsbaum and there are currently no proceedings scheduled.

Fire District found to have violated Meetings Act, ordered to pay attorney fees

noreply@blogger.com (John Paff) — Sat, 24 Nov 2012 16:07:00 +0000

On November 15, 2012, a Superior Court judge declared that the Franklin Township (Somerset County) Fire District No. 2 Board of Commissioners violated the Open Public Meetings Act (OPMA) by failing to prepare public work-session meeting minutes from April 13, 2011 through August 2, 2012.

In Carroll v. Fire District No. 2, Docket No. SOM-L-1274-12, Assignment Judge Yolanda Ciccone declared that the Board's failure to prepare or produce these minutes violated the OPMA, but declined to order the Board to comply with the OPMA going forward. Ciccone also ordered the Fire District to give the plaintiff audio tapes it had on file for six of the meetings for which minutes were not produced, and held that the plaintiff was the "prevailing party" under the Open Public Records Act (OPRA) and ordered the Fire District to pay her court costs and attorney fees.

A copy of Ciccone's order is on-line here.

Unpublished Trial Court OPRA opinion

noreply@blogger.com (John Paff) — Sat, 24 Nov 2012 14:35:00 +0000

"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.

I have converted the scanned opinion to a searchable text version. A link to the scan is contained within the footer to the live document.

    Paff v. Atlantic County Alliance
    Atlantic County, Docket No. ATL-L-4089-12
    Hon. James P. Savio, J.S.C.
    November 16, 2012
    Click here for the opinion.

Primary Holding: the Atlantic City Alliance, a private, not-for-profit corporation that the Casino Reinvestment Development Authority, a government agency, is statutorily required to contract with, is not a "public agency" as defined by the Open Public Records Act (OPRA).

Are police incident reports subject to disclosure under OPRA?

noreply@blogger.com (John Paff) — Wed, 21 Nov 2012 22:55:00 +0000

On November 21, 2012, I filed an Open Public Records Act (OPRA) lawsuit against the Borough of Manville in Somerset County. Attorney Richard Gutman is representing me in this lawsuit, which is on-line here.

My suit challenges the Borough's denial of access to police incident reports relating to two men being charged with public consumption of alcohol. The Borough posits that the reports are "criminal investigatory records" and thereby exempt from disclosure. But, OPRA defines "criminal investigatory records" as those that "pertain to any criminal investigation or related civil enforcement proceeding." I believe that this exemption doesn't cover records of investigations of municipal ordinance violations.

Further, the definition excludes police records that are "required by law to be made, maintained or kept on file." The New Jersey Destruction of Public Records Law and the regulations and scheduled adopted under that law require police incident reports to be maintained for a specific period of time. Accordingly, the requirement that police reports be "maintained" take those reports out of the scope of the "criminal investigatory record" definition. This argument has been accepted by the Bergen County Superior Court, which was affirmed by the Appellate Division, in North Jersey Media v. Paramus but was rejected by the Union County Superior Court in Renna v. Union County. Hopefully, my lawsuit against Manville will help clarify this point of law. (Both the Bergen and Union cases are attached as exhibits to my lawsuit.)

What to do if a public body disobeys a court order?

noreply@blogger.com (John Paff) — Tue, 20 Nov 2012 02:00:00 +0000

As regular readers know, I sue public bodies for violating the Open Public Meetings Act (OPMA) and sometimes obtain a court order, either by settlement or the judge's adjudication, requiring the public body, going forward, to take better minutes, produce its meeting minutes more promptly or otherwise improve its OPMA compliance. But, what can a citizen-plaintiff do when a public body subject to such an order elects to disobey it?

In February of 2008, I obtained a court order requiring the Lawnside Borough Council (Camden County), among other things, to record "reasonably comprehensive" executive session minutes that "contain an account and identification of matter discussed and action taken." I filed my suit because the Council's executive minutes were so terse and vague that they were useless. Background and case documents on my suit are available here.

In December 2011, after learning that the Lawnside Council, despite the court order, was still recording vague and terse executive minutes, I wrote to the Borough Attorney, Morris Smith, and advised him that if the Council didn't make its minutes compliant with the court's 2008 order, I would take enforcement action against it. Unfortunately, the Lawnside Council's May 30, 2012 and June 6, 2012 minutes were still noncompliant, so attorney Walter M. Luers, on by behalf, filed a "Motion to Enforce Litigants' Rights" against the Borough. That motion and supporting documents are on-line here.

The court rule that provides for such motions, fortunately, permits the court to make Lawnside pay my costs and attorney fees for filing and prosecuting this motion. While the award of costs and fees is within the court's discretion, I hope that the court does order the town to pay since that will encourage me and other OPMA plaintiffs to seek the court's assistance to ensure that the court's orders are followed. If, however, the court declines to make the town pay my costs, that will burden successful OPMA plaintiffs with the costs of enforcement, thus allowing public bodies to more easily ignore court orders.

Unless Lawnside and I come to a mutually acceptable agreement, my motion will be heard in Camden on Friday, December 21, 2012. The hearing, of course, is open to the public, but those who wish to attend are cautioned to telephone the court at 856- 379-2234 the day before the hearing to make sure that it hasn't been postponed or cancelled. Refer to Paff v. Lawnside, Docket No. CAM-L-7027-06.

OPMA hearing in Woodbury, November 29, 2012

noreply@blogger.com (John Paff) — Wed, 10 Oct 2012 14:54:00 +0000

On Thursday, November 29, 2012 at 9:30 a.m., Superior Court Assignment Judge Georgia M. Curio will conduct an Order to Show Cause hearing at the courthouse in Woodbury in a local citizen's Open Public Meetings Act (OPMA) lawsuit against the Washington Township (Gloucester County) Board of Education. At issue in the suit is the legality of the school board's closed session discussion of a board member's receipt of campaign contributions from an engineering firm hired by the school district. The lawsuit and related paperwork is on-line here.

The hearing is open to the public, but those who wish to go are advised to call Judge Curio's office at 856-686-7533 the day prior to the hearing to ensure that the hearing hasn't been postponed. Refer to Mello v. Murphy, Docket No. GLO-L-1403-12.

The Port Authority is not subject to OPRA

noreply@blogger.com (John Paff) — Thu, 04 Oct 2012 17:18:00 +0000

Today, October 4, 2012, the Appellate Division ruled that the Port Authority of New York and New Jersey is not subject to the Open Public Records Act (OPRA). In its ten-page opinion, available here, the court found that since the Authority was created jointly by both New York and New Jersey, it is not subject to the statutory law of only one state. This decision, of course, is not good for open government.

The Port Authority recently denied me access to the settlement agreement arising out of Hannah Shostack v. Port Authority, Federal Case No. 2:11-cv-00177. Shostack, who used to work for the Authority, was fired "without notice or cause" on August 11, 2010. While the Port Authority told her that her position was being eliminated, Shostack claimed in her lawsuit, which is available on-line here, that the real reason she was fired was because "she is not affiliated with the Republican Party and/or the administration of Republican Governor Chris Christie." In her lawsuit, Shostack alleged that her supervisor "Chris Russell informed her that the decision to discharge her came straight from Governor Christie's office and there was nothing he could do to save her job." Her suit claims that at about the same time she was fired, several other employees who were not affiliated with the Republican Party were also fired.

New Jersey Courts have held that disclosure of lawsuit settlement agreements serves the public interest. Burnett v. County of Gloucester, 415 N.J. Super. 506, 517 (App. Div. 2010) ("We find the public interest in settlements to be a significant one, since such settlements may provide valuable information regarding the conduct of governmental officials and the condition of government property.") Yet, the Port Authority's records custodian, Daniel D. Duffy, in his September 5, 2012 denial letter, claimed that the settlement agreement was "exempt from disclosure pursuant to Exemption (3) of the [Port Authority's Freedom of Information] Code" which exempts sensitive records that "are compiled for public safety, law enforcement or official investigatory (internal or external) purposes." This is clearly erroneous, but according to the Authority's FOIA code, Duffy's decisions are "final."

Knowing the amount of money that Shostack received in her lawsuit settlement for is especially important because she alleges, in essence, that the Port Authority is filled with political patronage jobs that the sitting governor can award to his supporters and cronies. If Shostack received, say, a $500,000 settlement, the public could reasonably draw an inference that there was some truth to her allegations. If she received, however, $10,000, the public could reasonably disregard her claims as nothing more than sour grapes.

Unfortunately, the Port Authority doesn't want the public to know the settlement information and New Jersey courts, in today's ruling, have upheld the Port Authority's ability keep the public in the dark.