Open Government Advocacy Project
The Open Government Advocacy Project is a committee of the NJ Libertarian Party. Its goal is to ensure transparency and accountability at all levels of government. Articles posted here are a subset of the work of the committee. For more information visit the Open Government Advocacy Project blog.
If you would like to demand accountability and ensure that your local governing body or school board adheres to the Open Public Records Act we can help you request information from them. Contact John Paff, the project chair here.
On June 10, 2014, Montclair Attorney Richard M. Gutman filed a lawsuit on my behalf challenging the Ocean County Prosecutor's denial of my Open Public Records Act (OPRA) request for a video that allegedly depicts a police officer intentionally siccing his police dog on a 57-year-old woman. The lawsuit and brief, captioned Paff v. Ocean County Prosecutor, Docket No. OCN-L-1645-14, is on-line here.
I requested the video after reading about Tuckerton Police Corporal Justin Cherry being charged with second-degree official misconduct and third-degree aggravated assault after he "allegedly allowed a K-9 to attack and bite a woman following a traffic stop earlier this year." The dog attack allegedly occurred on January 29, 2014 and was filmed by a security video camera on the outside of the Barnegat municipal building. An April 21, 2014 Star Ledger article on the alleged attack is on-line here.
Should people who write to a judge to request leniency for a criminal defendant have their identities shielded from public view?
June 5, 2014
Ann Rizzi, ACDM
Middlesex County Courthouse
56 Paterson Street, PO Box 964
New Brunswick, New Jersey 08903
Dear Ms. Rizzi:
I am writing to you at the suggestion of Ombudsman Luis Hernandez, who is copied on this e-mail.
I had previously made a records request to the Middlesex County Criminal Records Division seeking letters of support and requests for leniency regarding Anthony Morales, who was convicted of and sentenced to three years in prison for having a sexual relationship with a female student. See a January 7, 2014 nj.com article on-line here.
In an Order distributed today, May 1, 2014, the Government Records Council (GRC) ruled that a volunteer fire department in Franklin Township (Somerset County), which is within a Fire District, is a "public agency" that must respond to Open Public Records Act (OPRA) requests.
In Robert A. Verry v. Franklin Fire District No. 1, GRC Complaint No. 2013-196 (on-line here), the GRC held:
Notwithstanding that [Millstone Valley Fire Department] was likely created by the volunteer membership, is clear that member companies within a fire district exercise a government duty and are under the supervision and control of the district, which is clearly a "public agency." In essence, although the creation of a volunteer fire company is reserved only for the membership, said company organizing within a fire district is expressly required to apply to the district. As the Court noted in [Paff v. New Jersey State Firemen's Ass'n], the relationship between the Association and its existence are owed to state law, as is the relationship between the creation and function of a volunteer fire company within a fire district. Thus, in applying the Court's decision in Firemen's Ass'n, to the facts of this complaint, the GRC is satisfied that [Millstone Valley Fire Department] is a "public agency" for purposes of OPRA.
Therefore, because [Millstone Valley Fire Department] is a member of the [Franklin Fire District] per N.J.S.A. 40A:14-70.1 and thus serves a governmental function under the supervision and control of the [Franklin Fire District], it is a public agency for purposes of OPRA.
This is the first decision of its kind that I am aware of in New Jersey.
Verry's attorney in the matter is John A. Bermingham, Jr., Esq. and the Fire District was represented by Dominic DiYanni . The Fire District has 45 days within which to appeal the ruling.
Wayne D. Pelura, Committeeman
Township of Carneys Point
Dear Committeeman Pelura:
I note from your 2013 Financial Disclosure Statement (on-line here) that you listed no source of income for either you or your wife Patricia. Given that your home on Johnson Avenue is assessed at $290,800 and has taxes levied against in in the amount of $7,287.45 (property detail sheet on-line here), it seems very unlikely that neither you nor your wife have a source of income greater than $2,000.
The entire point of the Financial Disclosure Statement filing is to help citizens learn whether public officials have conflicts of interest. Suppose for example, the Township Committee was considering whether to award a contract to a company that employed your wife Patricia. Clearly, it would be violation of the Local Government Ethics Law (LGEL) for you to vote on or participate in the discussion regarding that contract. Yet, absent your wife's employer being listed as a source of income on your Financial Disclosure Form, a member of the public (unless he or she knew or was familiar with you and your family) would likely not be aware that you would be conflicted from voting on that contract. Thus, when public officials decline or refuse to identify the sources of income for them and their family members, they are frustrating citizens' ability to detect violations of the LGEL.
On April 2, 2014, Administrative Law Judge Susan M. Scarola recommended acceptance of a settlement of an Open Public Record Act (OPRA) case filed with the Government Records Council. Judge Scarola's recommendation and the Settlement Agreement in the case of George F. Burdick, Jr. v. Township of Franklin (Hunterdon County) are on-line here.
According to the agreement, Franklin Township Clerk Ursula Stryker agreed to "personally pay a fine of $1,000 to the Government Records Council" within 60 days of Scarola's order. The agreement recites that the Township acknowledged that it was able to comply with an Interim Order of the GRC, but attributed its failure to do so to "the intentional acts of at least one of its professionals which directly affected [Stryker's] ability to comply with the Interim Order." The agreement also recites that the Township "has already made adjustments to its Open Public Records protocol to ensure continual compliance with the GRC's ruling" and that the Township "wishes to resolve this matter without having to expend additional counsel fees for one or more days of hearings."
On January 27, 2014, the Town Council of Hammonton, an Atlantic County community with a 2010 population 14,791, resolved to appoint a separate deputy records custodian for each of ten principal departments in the municipality. The same resolution also appointed nine "Alternate Records Custodians"--one for each of the ten departments except for the Recreation Department.
According to Resolution 023-2014, which is on-line here, "the Open Public Records Act does not preclude the Municipality from developing reasonable and practical measures for responding to OPRA requests which may include the designation of deputy custodians for particular types of records."
On July 12, 2011, Glenn A. Grant, Director of the Administrative Office of the Courts (AOC) issued Directive #03-11 which states in its preamble that:
An open and transparent court system is an integral part of our democratic government. The public has a right of access not only to our courts, but also to court records. Public access to court records allows citizens to understand the system and to judge its effectiveness.
This lofty goal, however, does not actually play out in practice.
On September 6, 2013, New Jersey enacted L.2013, Chapter 158 which established a conditional discharge program for municipal courts that allows first time offenders to avoid prosecution for a large variety of disorderly and petty disorderly offenses if they enter into a supervisory program. The new law, which became effective on January 4, 2014, requires applicants to pay $75 into a "non-lapsing fund to be known as the 'Municipal Court Diversion Fund,' which shall be administered by the Administrative Office of the Courts."
Name: John Paff
Hometown: Franklin Township, Somerset County
Family: Wife Diane, children Alex, 16, and Katie, 12
Best known as: New Jersey's busiest open-government activist
How he got started: "I guess I've always been interested in how things work, how the system works." But it's not just how things work. A lifelong New Jerseyan -- he grew up in Cumberland County and moved to the Middlesex/Somerset area when he went to college at Rutgers University -- he wants to make sure that state government works as well as possible.
Paff started working with the Forfeiture Endangers American Rights, a group looking to reform federal and state asset forfeiture laws, in 1992, and then moved to trying to improve attorney ethics before landing on open government issues. He now chairs the New Jersey Libertarian Party's Open Government Advocacy Project and is a member of the board of directors of the New Jersey Foundation for Open Government.
In his February 7, 2014 letter, Somerset County Counsel William T. Cooper III defended the Somerset County Freeholder Board's decisions to conduct seven matters in nonpublic (i.e. closed or executive) session instead of publicly. Cooper's letter is on-line here and the minutes of the executive meeting in question are on-line here. (My letter of complaint about the executive session discussions is on-line here.)
With all due respect to Mr. Cooper, I believe that his position is flawed.
As just one example, the minutes of the January 14, 2014 closed meeting state:
Mike Amorosa addressed concerns and complaints received about employees utilizing e-cigarettes indoors. The Board endorsed the inclusion of e-cigarettes to the policy.
January 31, 2014
Hon. Patrick Scaglione, Director, and members of the
Somerset County Board of Chosen Freeholders
Dear Director Scaglione and Board members:
In response to my Open Public Records Act (OPRA) request, I obtained the minutes of five of the Board's recent nonpublic (executive or closed) meetings. For your ready reference, I have placed those minutes on-line here.
Several of the matter discussed do not appears to fall within any of the N.J.S.A. 10:4-12(b) exceptions. As you are aware, the Open Public Meetings Act requires all Board discussions to be held in public unless one or more of the N.J.S.A. 10:4-12(b) exceptions, construed strictly against closure, apply. Following is a list of some of the topics that I believe could have been discussed with the public in attendance.
Donna Faulkenberry, President and members of the
Spotswood Board of Education
105 Summerhill Road
Spotswood, NJ 08884
Dear President Faulkenberry:
While I appreciate the fact that the Board posts its nonpublic (i.e. closed or executive session) minutes on its web site (most public bodies do not), I think that the minutes themselves fall far short of the "reasonably comprehensible" standard required by N.J.S.A. 10:4-14. As an example, please see the Board's April 23, 2013 nonpublic meeting minutes here.
First, they are not even labeled "Minutes" but rather as a "Resolution for Executive Session."
Second, they contain some boilerplate language followed by the only substantive portion which reads, in its entirety, "The Board discussed a contractual matter." Do you think that the "reasonably comprehensible" language in N.J.S.A. 10:4-14 requires, at a minimum, the identities of the parties to the contract under discussion?
Judge O'Connor significantly revises her "generator" decision
Judge O'Connor called both attorneys in Paff v. Warren County Prosecutor's Office today and held a Case Management Conference via telephone at 4 p.m. today (Monday, December 23, 2013). The judge's purpose in calling the conference was to modify her previous order so that the identities of the official(s) who misused the county-owned generators would also be redacted from the documents that will provided in the case.
O'Connor's December 18, 2013 order stated that the Prosecutor's office "shall redact from the documents the names of any person who provided a statement to [the Prosecutor's office], as well as his or her position of employment, birth date, home and cellular telephone numbers, home address, and any personal identifier."
Mayor Carl Groon, and members of the
Wildwood Crest Borough Commission
Dear Mayor Groon and Commissioners:
In response to a recent Open Public Records Act request, I received redacted minutes from the Board's November 18, 2013 nonpublic (i.e. executive or closed session). I have placed these minutes on-line here.
I invite your attention to the sentence within the minutes that states that "[d]iscussion was also had regarding the hiring of a special investigator." As you know, this special investigator was hired to investigate a police internal affairs matter. The rumors circulating throughout the Borough are that the investigation relates to a police employee who has earned the rank of lieutenant or higher. Regardless of the truth of these rumors, this is a matter of great public interest and it's very important that there is sufficient information available so that Borough voters and taxpayers, at least at some point in the future, can understand the nature of the investigation and draw their own conclusions as to whether the Borough's elected and appointed officials acted reasonably.