New Jersey Libertarian Party

In a 25-page opinion issued on July 13, 2010, Union County Superior Court Judge Kathryn A. Brock ruled that while I am not entitled to a police surveillance video under the Open Public Records Act (OPRA), I am entitled to it under the common law right of access.

Previously we reported on the antics of former police officer Genaro Mirabella. Last year he was arrested for vandalizing vending machines and breaking into the Garwood municipal hall while on duty. We reported on his charges getting dropped "in the interests of justice."

Now he has been arrested for shoplifting deodorant from a Frenchtown, NJ IGA.

We are currently waiting for a decision in Paff versus the Borough of Garwood concerning their denial in allowing us to have a copy of the videotape of Genaro Mirabella breaking into the municipal hall.

Today, June 11, 2010, Judge Kathryn Brock heard more argument in my OPRA and common law access case against the Borough of Garwood. At issue, readers may recall, is a DVD of former Garwood Police Officer Gennaro J. Mirabella, while in uniform, entering the locked office of Garwood's Chief Financial Officer and opening her desk drawers.

Background on the case can be found at OPRA Case To Be Heard In Union County and Interesting Friday In Judge Brock's Courtroom.

First, Judge Brock decided that Mirabella, since he has not contacted the court with a request to be heard, is not interested in the case and thereby has conceded that he has no claim that his privacy would be violated by release of the DVD.

Sometimes I receive questions that I believe may be of general interest. Here is one such question and my answer to it.

Question:

I have a question for you on OPRA and executive session minutes. My municipal council regularly meets in executive session. But, when I submit an OPRA request for those executive session minutes, my request is denied because the municipal clerk hasn't yet written up the executive session minutes even though several months have passed since the executive meeting was held. The clerk tells me that this doesn't violate OPRA because she's not required to give me records that don't exist. What can I do about this?

Answer:

As previously announced, my Attorney Rick Gutman and I appeared before the Hon. Kathryn A. Brock at the Union County Courthouse on Friday, April 30th, to argue entitlement to a surveillance video that reportedly showed former Garwood Police Officer (and brother of a Union County Freeholder) Gennaro J. Mirabella entering the locked office of Garwood's Chief Financial Officer and opening her desk drawers. The hearing lasted nearly three hours.

We lost on our Open Public Records Act claim because Judge Brock held that the tape is exempt a) as a "criminal investigative record" and b) because disclosure may improperly reveal security measures and surveillance techniques.

As a result of a March 19, 2010 request from the New Jersey Libertarian Party's Open Government Advocacy Project (OGAP), the City of Clifton has assigned official "cliftonnj.org" e-mail addresses to Mayor and City Council members. Previously, the Mayor and Council were using their personal e-mail (e.g. Yahoo or Gmail) addresses for City business.

On April 17, 2010, the Express-Times published an article on Warren County school board's refusal to publicize its meeting agendas until ten minutes before the start of the meeting. I am quoted in the article as a representative of the New Jersey Libertarian Party.

"When you announce your agenda in advance, it gives people an opportunity to research the issues and come to the meeting prepared with cogent comments and questions," said John Paff, who chairs the New Jersey Libertarian Party's Open Government Advocacy Project.

By DEREK HARPER Staff Writer, Press of Atlantic City

Municipalities and schools will no longer be able to charge more for copies of public records than what it costs to copy them, a state appeals court recently ruled.

Open-records advocates applauded the decision.

“You couldn’t possibly say the cost comes out to 75 cents a page” said John Paff, chairman of the New Jersey Libertarian Party’s Open Government Advocacy Project. “As a libertarian, I know government is inefficient, but I would hope that New Jersey governments can produce a photocopy at least within 10 times the cost of a private vendor.”

Read the full article...

The NJLP Open Government Task Force joined forces with the Union County Watchdog Association to ask why Gennaro Mirabella, a 17 year veteran of the Garwood Borough Police Department (and brother of a Union County Freeholder) was not prosecuted after reportedly having been caught on videotape breaking the law.

I recently settled my civil suit against the Lumberton Township (Burlington County) Committee that demanded prompter public access to the nonexempt portions of its executive session minutes. My lawsuit and the settlement agreement are on-line here. The following is an article on the settlement that appeared in today's Burlington County Times.

Lumberton agrees to quick release meeting minutes
By: Mark Zimmaro
Burlington County Times

The Township Committee has agreed to make the minutes from its executive sessions available to the public in a more prompt manner.

A civil lawsuit filed in State Superior Court by John Paff, Chair of the NJ Libertarian Party's Open Government Advocacy Project, accused the Lumberton Township Committee of withholding minutes from their meetings that occur behind closed doors.

Read the full story...

On September 13, 2009 I posted concerning the City of Margate's (Atlantic County) policy of requiring its officers and employees who use e-mail for municipal business to use their "margate-nj.com" e-mail addresses and not their personal e-mail addresses (e.g. Yahoo.com, Gmail.com, Verizon.net, etc.). That posting is on my blog.

Today, I learned that the Township of Andover (Sussex County) has drafted--but not yet implemented--a more comprehensive policy designed to a) ensure that all official e-mails are preserved on the Township's server and b) prevent e-mail conversation from becoming "meetings" as defined by the Sen. Byron M. Baer Open Public Meetings Act. That draft policy is on-line here.

While it's not perfect, Andover's draft policy is the best I've seen so far. Readers may want to forward it to their own municipalities and school boards and suggest that they adopt something similar.

The Courier Post recently picked up on an issue uncovered by the NJ Libertarian Party Open Government Taskforce.

LAWNSIDE — The borough and a local police officer have settled a discrimination suit for $350,000, court papers show.

Carmen Chapman, who became Lawnside's first female police officer in 2002, alleged in her federal suit that she was harassed by a superior and that she faced "irrational and arbitrary" discipline. Chapman also contended she was treated differently than other officers, notably after sustaining a disabling knee injury.

Carmen's complaint and the settlement were posted online by the Jersey Libertarian Party's Open Government Advocacy Project.

John Paff, a representative of the project, said the settlement requires both Chapman and the borough to refrain from disclosing the agreement's terms.

Read the full story...

I posted the following today on a few blogs. It's a bit unsettling because it my research reveals that, in addition to the police abuse matter, two Atlantic City officers, while on duty, gave an underage female a strong painkiller (Tramadol) and then went into a nightclub with her where she drank alcohol.

While the Press of Atlantic City reported that the officers were suspended without pay because of the incident, there is no indication that any criminal charges were filed against the officers. It would appear that giving a non-prescribed drug to an twenty-year old violates the criminal code.

On June 2, 2009, the Open Government Advocacy Project filed a complaint with the Hasbrouck Heights (Bergen County) Ethical Standards Board alleging that twenty-six Borough officials failed to file the Financial Disclosure Statements that were due on April 30, 2008.

I recently was informed that the Ethical Standards Board will meet on August 10, 2009 to "determine the penalty that shall be imposed upon those who were charged with respect to violation of the 2008 Financial Disclosure Statement." The meeting, which will start at 8 p.m. and be held at Borough Hall, 320 Boulevard, is open to the public.

The officials could each be fined between $100 and $500.

The complaint and notice of the meeting are on-line at http://ogtf.lpcnj.org/2009208PC//HHEthComplaint.pdf

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