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.
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.
A new lawsuit was filed yesterday in Camden County Superior Court that seeks answers to the following questions:
- How promptly must a public body publicly disclose the nonexempt portions of its nonpublic (i.e. "closed or executive") meeting minutes?
- Can a public body validly claim that it must first "approve" its nonpublic meeting minutes prior to publicly disclosing even redacted versions of them?
On October 6, 2011, an Open Public Meetings Act (OPMA) case was filed in Gloucester County Superior Court. Cheryl Potter, a local resident, brought the suit against each member of the Elk Township Committee. Potter is being represented by John W. Trimble, Jr., Esq. of Trimble & Armano of Turnersville.
At the May 10, 2011 Runnemede (Camden County) Board of Education executive session, Board Attorney Philip E. Stern, Esq. said that he would contact me and another citizen "requesting that [we] cease and desist [filing OPRA requests] under possible charges of harassment." The minutes of the closed meeting, which I learned about just today, were available on the Board's site as well as here.
According to the minutes, I and two other citizens were filing Open Public Records Act (OPRA) requests "in an effort to find some information to support [a] suspicion . . . that some fraud or unethical events occurred." Board attorney Phillip Stern opined that "the volume and nature [of the OPRA requests] has been expanding and interferes with the ability to administer the district."
In October 2010, Freehold Borough contracted with Jersey Professional Management to prepare a report on the operation of the Freehold Police Department. The report was released to the Borough in June.
Many Open Public Records Requests have been submitted for this report by several organizations. All have been denied with the excuse that the document constitutes "a management and personnel document, which contains strategies and policies regarding public safety and crime prevention. Thus, Freehold Borough is not obligated to release it to the public.”
On September 13, 2011, Gloucester County Prosecutor Sean F. Dalton sent a memorandum to every municipality in the county "strongly urging" them to "adopt an e-mail policy" for local government officials "in order to uphold the high levels of transparency contemplated by the Open Public Meetings Act (OPMA)." The memorandum and the involvement of the New Jersey Libertarian Party Open Advocacy Project has been covered by nj.com.
I have been informed by the Republican Club of Pennsauken Township (Camden County) that the Township is seeking to pass a very restrictive ordinance regulating the use of cameras to video record public Township Committee meetings.
One of the provisions of the proposed ordinance requires that citizens who record meetings, shall, at the end of the meeting, give the original recording to the Clerk for duplication and that the original can be picked up by the citizen within five business days of the meeting.
In an August 4, 2011 decision, Bergen County Superior Assignment Court Judge Peter E. Doyne considered, among other issues, the question of public officials using private e-mails to discuss public business. Judge Doyne ultimately concluded that using personal e-mail accounts for public business "appears highly questionable" and "order[ed] counsel for [the municipality] to circulate a memorandum among all pertinent Borough employees directing they use only their public e-mail accounts, rather than private accounts, when conducting town business."