NJ, US: Libertarian Open Government Model Project

http://njopengovt.blogspot.com/

This is a simple and exemplary project where volunteers write letters, attend meetings on adherence to laws already there and maintain documentation in this simple free blog. We hope to see projects like this for every few million population in time worldwide. The focus is local government.

Tuesday, May 1, 2012

Closed session resolutions in the minutes are different than those passed at the meeting.

 
I have threatened to sue the Clinton Township (Hunterdon County) Board of Education for violating the Open Public Meetings Actin a way that is new to me–by passing a verbal, closed session motion/resolution during a public meeting that differs substantially from the version of the motion/resolution that is recorded in the meeting’s minutes.By comparing the audio of the Board’s meetings with the written minutes, I have found several examples where the Board passed a simple motion, in the nature of “I move that we go into executive session,” but then recorded a much more verbose version of the motion in the meeting minutes. One of the main purposes of N.J.S.A. 10:4-13, which requires that public body pass a resolution in public before going into executive or closed session, is to inform the members of the public in attendance of nature of the matters that the body is going to privately discuss. For a public body to simply say that it’s going into executive session and then include the details of what topics were privately discussed in the meeting’s minutes–which won’t be publicly available until weeks later–works against that purpose.To make matters worse, the resolutions that eventually appear in the Clinton Board’s public minutes are themselves defective because they give the public no meaningful sense of what topics were privately discussed. For example, the Board’s March 26, 2012 resolution simply states that “matters of personnel and legal rendered confidential” were discussed in closed session.

My threatened lawsuit is on-line here and a Word 2007 version of it is on-line here.

I have invited the Board to discuss the proposed lawsuit at its May 14, 2012 meeting and have suggested that it could resolve the matter by agreeing to use my “model form” of closed resolution which is on-line here.

 

Monday, April 16, 2012

Atlantic County Prosecutor’s letter on OPMA

 
For the first time in my experience, the Atlantic County Prosecutor has taken a position on an Open Public Meetings Act (OPMA) issue. In a March 27, 2012 letter, Chief Assistant Prosecutor Diane M. Ruberton advised that the Absecon Board of Education would have violated the OPMA if it had voted “through an exchange of e-mails to amend the budget to appropriate money for an increase in high school tuition.” But, Ruberton opined that since “no vote was ever taken and the matter was scheduled to be addressed at a public meeting, . . . no violation of the Open Public Meeting Act ever actually occurred.” Ruberton’s letter is on-line here and the complainant’s letter to the prosecutor’s office is on-line here.

 

Are “private prisons” subject to OPRA?

 
On Friday, April 20, 2012, at 9 a.m., Essex County Superior Court Judge Rachel N. Davidson will conduct an Order to Show Cause hearing in the case of John Paff v. Community Educational Centers, Inc., Docket No. ESX-L-1658-12. This case presents an issue of first impression in New Jersey–whether taxpayers lose their right to access government records when the government “contracts out” a traditional governmental function–in this case correctional services–to a private entity.In New Jersey, 11.4% of non-federal prisoners are housed in private facilities. Yet, as currently applied, the Open Public Records Act (OPRA), while allowing citizens access to certain categories of records held by government-run prisons, denies access to those very same categories when held by private prisons. It seems to me that the public’s rights under OPRA shouldn’t turn on the government’s decision to privatize its functions rather than executing them through government employees.The hearing, which is open to the press and public, will be held in Courtroom 302 at the Historic Courthouse at 470 Dr. Martin Luther King, Jr. Blvd in Newark. Plaintiff’s lawyer is Richard Gutman of Montclair (973-744-6038) and the private prison’s lawyers are Debra Shannon and Nichoele Johnson of West Caldwell (973-226-2900). The briefs filed by both parties are on-line here. Anyone who wishes to attend the hearing is cautioned to telephone the court at 973-693-6716 on Thursday to ensure that it hasn’t been postponed.

 

Wednesday, April 4, 2012

Mercer Prosecutor criticizes Trenton Council over tardy minutes

 
In a March 27, 2012 letter, Mercer County Prosecutor Joseph L. Bocchini, Jr. took the Trenton City Councilto task for not making “available to the public written minutes of [Council] meetings for a substantial period of time.”Citing N.J.S.A. 10:4-14, Bocchini told the Council that going forward, minutes “should be made ‘promptly available’ to the public and noted that a 1986 court decision defined “promptly available” as meaning within two weeks after the meeting.As for the Council’s backlog of minutes from previous meetings, Bocchini asked the Council to provide him “with a timetable when minutes from past meetings will be complete and available to the public.”

Bocchini’s letter is on-line here.

I wish to thank Trenton resident Jim Carluccifor bringing this matter to the prosecutor’s attention and for sharing Bocchini’s letter with me. It’s not often that a county prosecutor enforces the Open Public Meetings Act. Bocchini’s letter is refreshing and may help convince other prosecutors around New Jersey to take action on complaints about tardy disclosure of meeting minutes.

 

Monday, April 2, 2012

Lavallette to investigate taxpayer organization critical of Borough operations

 
According to the ninth page of its March 12, 2012 minutes, the Lavallette Borough Council (Ocean County) voted to have its Borough attorney “investigate the non-profit, non-partisan status” of the Lavallette Voters & Taxpayers Association.The decision came after Mayor Walter G. LaCiceroreceived the Association’s recent newsletter and found it “pretty disturbing and filled with a lot of inaccuracies.” Mayor LaCicero said that he investigated the Association and found it to be run by a cabal of Democrats who “commandeered” the Association in order to mount “a partisan attack against the Republican Council.”As evidence of the Association’s evil intent, Mayor LaCicero noted that the Association “brought in” an open government advocate from Somerset County which “resulted in thousands of dollars in costs to the Borough to comply” with the Open Public Records Act. (The Government Records Council (GRC) decision, which found that Lavallette failed to abide by OPRA as well as the GRC’s December 18, 2008 Interim Order is on-line here.)

Monday, April 2, 2012

Weinberg: Filing of OPMA lawsuits could have “negative impact”

 
In an April 1, 2012 article in the Record (“Meetings violation claimed,” by Melissa Hayes) Senator Loretta Weinberg is quoted as stating that my filing of Open Public Meetings Act (OPMA)enforcement lawsuits has “a negative impact because it makes municipalities not want to cooperate.” I disagree with the Senator.A large part of the problem is that even though the OPMA has been in effect for nearly forty years, some very basic terms remain unclear. For example, reasonable minds can differ on the amount of detail “reasonably comprehensible” meeting minutes must contain or what period of time must elapse after which meeting minutes are no longer considered to have been made “promptly available to the public.”The fuzziness of these terms allows public bodies to plausibly provide a level of transparency that falls short of what open government proponents believe the Legislature intended. Other than clarifying legislation, which Senator Weinberg is admirably pursuing, the only way to sharpen up these fuzzy definitions is through litigation.

If a Bergen County judge, in response to the fourth count of my lawsuit against the Englewood Cliffs school board, issues a written opinion holding that the board’s executive session minutes must “contain enough detail and context to allow a reader to understand and get good sense of each matter discussed, the various sides of and points of view regarding those matters and any conclusions that the Board reached regarding those matters,” I believe that the willingness of other public bodies to voluntarily comply with that ruling will increase rather than decrease as the Senator argues. (Quote taken from paragraph M of my complaint) If, however, the judge rules that the school board’s present, terse executive session minutes comport with the OPMA, then the need for Senator Weinberg’s curative legislation will be underscored. (The Board’s minutes are attached to my complaint at the above link.)

In sum, I don’t see any negative impact arising from my efforts to use litigation to more clearly define the contours of the OPMA.

 

 

Thursday, March 22, 2012

Court: Bayonne “intentionally violated OPRA.”

 
In its March 22, 2012 decision in Mark’s Advanced Towing, Inc. v. City of Bayonne, Robert Sloan et al, the Appellate Division referred to an April 1, 2010 order entered by Hudson County Superior Court Judge Bernadette N. DeCastro that found that the City of Bayonne “intentionally violated” the Open Public Records Act (OPRA).

 

Sunday, March 18, 2012

Florence Township’s improper OPRA denial

 
On December 1, 2011, I submitted an Open Public Records Act (OPRA) request to Florence Township (Burlington County) to gain information regarding Nicholas J. Costa, Esq.’s payment for serving as the Township’s municipal prosecutor during 2010. Part of my requestsought copies of “both sides of any check written to Mr. Costa for prosecutorial services performed during 2010.”In his December 15, 2011 letter, Township Administrator Richard A. Brook informed me that Mr. Costa received $22,814.04 during 2010 but opined that my request for copies of the checks was “outside the bounds of the intent of the OPRA law.” According to Mr. Brook, my request “essentially equates to prying into someone’s personal private accounts.” Mr. Brook further observed that since backs of checks “deal with personal bank account numbers, personal signatures and possible routing numbers,” my request raised “issues dealing with an employee’s identity, identity theft and information that is really personal in nature.” In denying my request for the check copies, Mr. Brook intoned that “even people who work in the public sector deserve a measured and reasonable degree of privacy.”Of course, Mr. Brook could have simply redacted the account numbers and other “really personal” information from Mr. Costa’s payroll checks. This is what N.J.S.A. 47:1A-5(g) requires. (“If the custodian of a government record asserts that part of a particular record is exempt from public access . . . the custodian shall delete or excise from a copy of the record that portion which the custodian asserts is exempt from access and shall promptly permit access to the remainder of the record.”) Instead, he elected to suppress the checks in their entirety, which resulted in me, represented by Walter M. Luers, Esq., filing an OPRA lawsuit (Paff v. Township of Florence, et al, Docket No. BUR-323-12).

What Mr. Brook didn’t realize is that I did have a legitimate need to see Mr. Costa’s payroll checks. I had previously learned that Mr. Costa, who also serves as municipal attorney for the Borough of Wrightstown (as well as in several other positions in Burlington County) failed to report Florence Township as a source of income on the Financial Disclosure Statement that he filed with Wrightstown. The only arguable justification for failing to report this source of income would be if Florence paid Mr. Costa’s law firm, instead of Mr. Costa personally, for his prosecutorial services. Thus, I needed to see the actual checks to see who received the taxpayer’s money.

Florence was represented in the OPRA suit by Anthony H. Ogozalok, Esq. of Capehart Scatchard. Mr. Ogozalok didn’t even fight the lawsuit. Instead, he simply sent my attorneys copies of the checks “in lieu of filing an Answer to the Complaint.” Mr. Luers is currently sending his bill for attorney fees and court costs to Florence for payment.

Almost comically, the versions of the checks Mr. Ogozalok provided contained Mr. Costa’s personal bank account number. One might think that given Mr. Brook’s alleged concern over revealing this “really personal” information, the Township’s lawyer would have redacted the account numbers before releasing the checks to me. No worries, however, as I have taken it upon myself to excise the account numbers and and have uploaded Mr. Ogozalok’s letter and the redacted check here.

Mr. Brook’s decision to deny my request, while a foolish waste of taxpayer money, doesn’t rise to the “knowing and willful” level that OPRA requires before “civil penalties” are imposed upon a government official who unreasonably denies a request. But, Senate Bill 1452, if enacted into law, would lower the “knowing and willful” requirement to “grossly negligent.” This would make it easier to impose $1,000 fines against records custodians and other government officials who subvert OPRA. Perhaps officials would be less cavalier in denying OPRA requests if they were held personally accountable for their poor decisions.

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

P.S. Now that I have seen the checks, I filed a complaintagainst Mr. Costa with the Local Finance Board for failing to report Florence Township as a source of income on the 2011 Financial Disclosure Statement he filed with Wrightstown.

 

Friday, March 16, 2012

OPMA lawsuit filed against Englewood Cliffs school board

 
On March 12, 2012, I filed a four-count lawsuit against the Englewood Cliffs (Bergen County) Board of Education alleging violations of New Jersey’s Open Public Meetings Act. The lawsuit, which is on-line here, concerns the school board’s nonpublic (closed or executive) meeting minutes and resolutions. While I still need to formally serve the Board with the lawsuit, I already e-mailed the Board an advance copy of it.

 

Thursday, March 8, 2012

Haddon Heights settles OPMA lawsuit

 
On February 21, 2012, Susan Scoblin-O’Neill settled her pro se Open Public Meetings Act (OPMA)lawsuit against Haddon Heights Borough (Camden County). In exchange for dismissal of her lawsuit, the Borough has agreed, among other things, to ensure that its future closed session resolutions “disclose as much information as possible without harming the public interest or the Borough’s interest in keeping the matter private.” The Borough also agreed to reimburse Susan her $260 in out-of-pocket court costs.The agreement, which is in the form a release, and not an order filed with the court, is on-line here.It is important for citizens to learn how to file OPMA lawsuits. Since the OPMA does not contain any provision requiring public bodies to pay successful plaintiffs’ attorney’s fees, most citizens are understandably reluctant to hire lawyers to bring OPMA cases. Absent a legislative amendment, the OPMA will remain largely unenforced unless citizens file their own lawsuits. Thanks to Susan for stepping up to the plate.

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

 

Tuesday, March 6, 2012

Elk Township passes Open Public Meetings Act policy.

 
On December 14, 2011, as part of a ruling in an Open Public Meetings Act (OPMA) case, Superior Court Assignment Judge Georgia M. Curio ordered the Elk Township (Gloucester County) Committee to “implement an effective [OPMA] policy . . . within sixty (60) days.” Mayor Philip A. Barbaro and the Committee adopted the policy on March 1, 2012 and a copy of it is on-line here.The majority of the policy summarizes the OPMA and doesn’t add any additional protections to the public’s interest beyond what is provided by the OPMA itself. The policy does, however, establish an e-mail usage policy. It also requires closed meeting minutes to be a “general summary of the matters discussed” and states that an “advisory body” is subject to the OPMA if it “has the power to eliminate options available to a decision-making body.”The policy applies to the Township Committee as well as the Township’s land use boards and other agencies and boards of the Township.

 

Sunday, February 12, 2012

Mostly a win in Camden

 
At 10 a.m. on Friday, February 10, 2012, Jose Delgado and I appeared before Camden County Assignment Judge F. J. Fernandez-Vina to pursue our Sen. Byron M. Baer Open Public Meetings Act case against the Camden City Board of Education. I appeared in person and Jose, who was on vacation, appeared by way of speakerphone. Background and case documents are available here. (Three open government activists, as well as a member of the board attended and observed. I appreciate the activists’ support.)Follow are the five issues that we presented (as set forth in the blog entry at the link above) and the result for each:1. How promptly must a government agency publicly disclose the nonexempt portions of its nonpublic (i.e. “closed” or “executive”) meeting minutes?

Going forward, the Camden Board of Education must make the minutes of its closed meetings, redacted only as necessary, publicly available within thirty days of the meeting or three days prior to its next public meeting, whichever comes first. This will require the board to significantly depart from its current practice. As it is, closed session minutes from as early as June 21, 2011 are not publicly available at the present time, even though nearly eight months have elapsed.

2. Does the agency’s claim that it must first “approve” its nonpublic meeting minutes prior to publicly disclosing even redacted versions of them have a basis in law?

No. Since the board must disclose the minutes at least three days prior to its next meeting, it cannot “approve” them prior to disclosure.

3. Must an agency pass a separate, free-standing resolution in order to satisfy the requirements of 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?

No. Despite our best efforts, Judge Fernandez-Vina found no basis in law for requiring “free standing” resolutions as opposed to recording the motions in the public meeting minutes.

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

The board must ensure that the motions or resolutions describe each topic to be privately discussed in sufficient detail and with sufficient specificity to allow the public to identify those topics. Judge Fernandez-Vina agreed with Jose and me that descriptions such “Legal Update, Contract Negotiations, Suspensions, Acting Principal-Vets, Resignations, Stipend Production Manager,” which were included in the board’s February 15, 2011 motion, are inadequate.

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

Judge Fernandez-Vina did not address this question.

In addition, Judge Fernandez-Vina ordered the board to pay Jose’s and my costs of court.

At this point, Jose and I are working with the board’s attorney, Lester Taylor, to hammer out the exact language that will be in the court’s order. We’re also submitting our bill of court costs. When that order and bill become available, I’ll post them on-line and notify readers of the links.

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

 

When Joseph Ardito, a member of the Association, attempted to address the mayor’s comments and the council’s action, Mayor LaCicero did not permit him to speak.

 
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