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.
I recently submitted an Open Public Records Act (OPRA) request for two months worth of Upper Freehold Township Committee meeting minutes as both an effort to learn what is going on in my town and to test my town's adherence to the OPRA law. As a result of my request and findings I wrote a letter to the Township pointing out deficiencies and recommending changes to their process. I've uploaded copies of my correspondence and the responses to http://njlp.org/uploads/UFTOPRARequest.pdf.
I found the township to be deficient in three main areas.
Tardy and Incomplete Responses To OPRA Request
The Borough of Englewood Cliffs (Bergen County) wishes for me to pay up to $339.79 for the audio recording of a December 8, 2010 Borough Council meeting. The Borough posits that the meeting was recorded on audio tape and that since the Borough now uses CD technology, it needs to use a private vendor, at $135 per hour, to duplicate the 2.5 hour meeting recording.
My OPRA request, the Borough's response and my reply to that response are on-line here.
Is it at least an appearance of impropriety for a Township administrator to have his home's roof replaced by the same contractor who was awarded a construction contract by the Township? My letter to Fairfield Township (Cumberland County) Mayor Michael Sharp and the Township Committee, which is referenced in the article below, is on-line at http://ogtf.lpcnj.org/2012/2012130Yr//Fairfield.pdf
Letter raises possible accusations of 'impropriety' against former Fairfield Township administrator Joe Veight
Published: Tuesday, May 08, 2012
By Jason Laday/The News of Cumberland
FAIRFIELD TWP. — A statewide watchdog group on Tuesday released a letter to the township committee regarding what it describes as possible impropriety on part of former Fairfield administrator and clerk Joe Veight.
Written by John Paff, of the New Jersey Libertarian Party’s Open Government Advocacy Project, the letter states that Veight had contracted a local firm for repairs at his Upper Deerfield home a month before that same company was awarded a $14,052 contract with the township.
After receiving my notice of an intended lawsuit, the Downe Township (Cumberland County) Committee passed a May 7, 2012 resolution promising to make draft copies of both its public meeting minutes and the nonexempt portions of its nonpublic (closed or executive) meeting minutes publicly available "the sooner to occur of thirty (30) days after a meeting or prior to the next scheduled meeting, whichever occurs first." My threatened lawsuit, Committee resolution and cover letters are on-line here.
Downe Township is a rural township of about 1,700 inhabitants that borders the Delaware Bay. Some towns, due to their small size, claim that they don't have the staff or resources to keep their minutes up to date. The fact that Downe is able to promise to make both its open and closed minutes publicly available prior to the next meeting challenges the "we're too small" excuse.
I have threatened to sue the Clinton Township (Hunterdon County) Board of Education for violating the Open Public Meetings Act in 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.
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.
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 a March 27, 2012 letter, Mercer County Prosecutor Joseph L. Bocchini, Jr. took the Trenton City Council to 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.
New Jersey scored the highest in the state for the state of its laws and regulations preventing government ethics violations. Part of the high score was attributed to New Jersey's Open Public Record's Act.
My experience, however, is that many towns are still ignoring the law. The work of John Paff and our committee has forced many towns to obey the law.
New Jersey scored well because of its Open Public Records Act, but John Paff said that law doesn't go far enough. Paff, the chairman of New Jersey Libertarian Party's open government advocacy project, said he's filed hundreds of requests for information under OPRA.
Paff said there are too many exemptions. And even though a citizen can appeal when denied access to a record, he said the Government Records Council moves far too slowly.
"It's taking them like 18 months or two years to adjudicate a complaint," Paff said. "So that's an issue because by the time you get the record, even if you prevail, a lot of times whatever it is that you were trying to prove in the first place or whatever case you were trying to make has expired and no longer has any relevance."
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 request sought 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."
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:
I don't recall ever before encountering a public agency misusing the "emergency meeting" exception to the Open Public Meetings Act. I did encounter such a violation today by the Election Law Enforcement Commission (ELEC). After determining that it didn't give 48 hours advance public notice of a rescheduled meeting, ELEC held the meeting anyway, blithely finding that to do otherwise "would result in harm to the public interest."
The text of my letter to the Commission is on-line at:
John Paff, Chairman
New Jersey Libertarian Party's
Open Government Advocacy Project
In yesterday's Appellate Division decision in State v. Heine, the Court ruled that a when a property owner refuses to permit access to a residence for inspection by local officials, the proper remedy is for the municipal inspectors to secure an administrative search warrant. The mere act of refusing access does not constitute a violation of a local ordinance in the absence of a search warrant.
In Heine, a variety of municipal health, construction and fire officials sought to inspect a residential property owned by the defendant. She refused them access to the property, believing it was a violation of her constitutional rights. Following three trials, she was found guilty in municipal court of various local ordinance violations related to the lack of access for the inspections. However, the Appellate Division held that although an administrative search to the warrant requirement exists in closely regulated industries, that exception does not apply in the context of a private home.
See http://www.judiciary.state.nj.us/opinions/a5858-09a1720-10.pdf for a copy of the decision.
Local government agencies and authorities are required to audit their books annually, and one might think that these audits are sufficient to ensure that everything is on the up and up. But the audits merely point out financial reporting deficiencies - sometimes the same deficiencies year after year--and the agency or authority that paid for the audit may elect to take no corrective action.
A case in point is the Borough of Dunellen's (Middlesex County) Parking Authority. While reviewing the auditor's August 30, 2010 cover letter that accompanied the Authority's 2008 and 2009 audits, I was struck by the following sentence: "Because of the inadequacy of accounting system and records for the year ended December 31, 2008, we are unable to form an opinion regarding the amounts at which accounts receivable, accounts payable and deferred parking permit revenues are recorded/not recorded on the balance sheet or accompanying financial statements. The respective amounts are unknown." I felt that this sentence was significant because it said, in essence, that the Parking Authority, which reported $631,305 in net assets and had $124,798 in cash and equivalents on hand as of December 31, 2009, didn't properly record and account for its income during 2008.