Friday, March 17, 2017

Bridgeton paid $8,800 to one suspended officer, declines to identify second suspended officer.

The Bridgeton City (Cumberland County) Council's November 14, 2016 closed session minutes indicate that two police officers "have been given administrative leave."  Given the timing, one of the officers would have almost certainly been Sergeant Luis Santiago who was arrested on November 10, 2016 for fourth degree sexual contact and offensive touching.  But, the identify of the second suspended officer and the nature of the conduct underlying his or her suspension are not obvious from media reports.

In her May 17, 2017 response to an Open Public Records Act (OPRA) request for the "payroll records" of the two officers, Bridgeton Deputy Clerk Kathleen L. Keen provided a memo from Business Administrator Stephanie R. Bush-Baskette confirming that Santiago was suspended with pay on November 11, 2016 and then was suspended without pay on December 14, 2016.  The memo also disclosed that Santiago was paid $8,072.72 in wages and a $750 uniform allowance during his paid suspension.

In her March 16, 2017 e-mail, Keen wrote that "the City is unable to provide payroll information on the second officer" because it is exempt from disclosure under "N.J.S.A. 47:1A-1.1 (4)."  When interviewed today, Keen said that the investigation against the second officer was still active and that City was relying on OPRA's criminal investigatory records exemption to keep that officer's payroll record confidential.

Friday, March 3, 2017

Elizabeth Board of Education receives $300,000 confidential settlement in its legal malpractice case.

By written agreement which received its final signature on December 22, 2016, the Newark based law firm of McCarter & English agreed to pay $300,000 to settle the Elizabeth Board of Education's (Union County) legal malpractice lawsuit against the firm and one of its lawyers. 

In its malpractice lawsuit, filed on April 24, 2012, the school board claimed that firm attorney Francis A. Kirk negligently advised it to file a defamation lawsuit against "John Doe" defendants in order to find out who authored and disseminated three allegedly defamatory campaign fliers.  The fliers, which were mailed to Elizabeth voters in advance of the June 6, 2006 primary election, contained photographs of Board President Rafael Fajardo and Superintendent Pablo Muñoz and labeled them as "the army of undercover republicans."  According to a May 29, 2013 news article, the mailings also "included a forged letter, purportedly written by Muñoz, urging Fajardo to campaign hard on behalf of the city’s Hispanic candidates to help insure a low turnout of Italian residents leading up to a city council election in 2006."

Kirk allegedly advised the Board, Muñoz and Fajardo to be named as plaintiffs in the lawsuit.  The suit was later dismissed by consent after the New Jersey Department of Education ruled that the $63,621.68 the Board paid McCarter & English for representing the plaintiffs in the defamation suit was an improper expenditure of public money.  The lawsuit also claimed that Kirk was negligent in naming the Board as a plaintiff because "it has been black letter law [since 1964] that a public entity such as the Board had no standing to file a defamation action." 

A concerned taxpayer named Antonio Rivera filed a lawsuit against the Board, Muñoz and Fajardo that resulted in a court order requiring Muñoz and Fajardo to each reimburse the Board half of the legal fees expended to pursue the defamation suit.  According to the above cited news article, Muñoz's and Fajardo's appeal of the court's reimbursement order was unsuccessful.

In 2012, McCarter & English filed a third party complaint against Kirk Nelson, who acted as the school board's attorney during the time the "John Doe" lawsuit was filed.  According to that complaint, Kirk had recommended that the school board adopt a resolution authorizing the filing of the defamation suit but Nelson went against that advice causing the defamation lawsuit to be filed without formal board approval.  McCarter & English claimed that Nelson's decision to allow the suit to be filed without a board resolution was part of the reason why the court ordered Muñoz and Fajardo to reimburse the Board.

Both the lawsuit and the third party complaint were resolved by two confidential settlement agreements signed in 2016.  The settlement of the third party complaint did not require either party to pay money to the other.  Rather, it simply released each party from the other's claims.  The settlement of the main lawsuit required McCarter & English to pay $300,000 to the Board of Education.

The case is captioned Elizabeth Board of Education v. McCarter & English, et al, Union County Superior Court Docket No. UNN-L-3014-12 and the school board's attorney was Michael S. Stein of Hackensack.  Case documents are on-line here

Both settlement agreements contain a confidentiality clause, which prevents the parties to the suit from publicly disclosing the settlement terms.  Fortunately, however, these confidentiality clauses do not trump the public's right to obtain copies of settlement agreements that arise out of lawsuits in which a government agency or official is a party.

None of lawsuit's allegations have been proven or disproven in court.  The settlement agreement states that payment does not constitute an admission of wrongdoing by McCarter & English, Mr. Kirk or Mr. Nelson.  All that is known for sure is that McCarter & English or its insurer, for whatever reason, decided that it would rather pay the school board $300,000 than take the matter to trial. Perhaps McCarter & English's decision was done to save further legal expense and the costs of trying what were in fact exaggerated or meritless claims. Or, perhaps the claims were true and McCarter & English wanted to avoid being embarrassed at trial. This is the problem when cases resolve before trial--it is impossible to know the truth of what really happened.

Thursday, February 9, 2017

Somerset Prosecutor loses appeal of trial court's suppression of 21 bricks of heroin.

On February 8, 2017, a two-judge Appellate Division panel upheld a trial judge's decision to suppress 21 bricks of heroin found in man's BMW because law enforcement officers improperly obtained his consent to search the vehicle. 

According to the decision in State v. Johnny Jones, Docket No. A-0151-16T4, a confidential informant working with the Somerset County Prosecutor's Office's Organized Crime and Narcotics Task arranged in October 2015 to meet Jones in the Blue Star Shopping Center parking lot to purchase a large quantity of heroin.  When Jones arrived in his maroon BMW, he was removed from his vehicle, handcuffed and placed on the ground by hooded Task Force members with their weapons drawn.  According to law enforcement's version of events, Jones gave verbal consent to a request to search his vehicle after he was told that if he refused to give consent, "there was a possibility that a drug-detecting dog would be brought and a search warrant might be sought."

Jones, however, testified that he "shook his head back and forth indicating his refusal" of the request to search his car.  He said that after officers said they'd "get the dogs" or "call the judge this time of night. Get a search warrant . . . we'll be here all night," he decided to consent to the search to keep his girlfriend's car from being damaged by the dogs and the search.  Jones said that Task Force members did not advise him of his right to refuse consent and that he didn't sign the consent to search form until it was presented to him at the prosecutor's office.

The trial judge, Kathy C. Qasim, found in her July 28, 2016 written decision, that while police had a valid reason to stop Jones' vehicle, their decision to immediately arrest him lacked probable cause.  The judge also ruled that the decision by police to aggressively confront and arrest Jones "engendered fear" and indicated that the consent to search was "coerced."  Since Jones' consent was not voluntarily given, the trial judge suppressed the heroin that was the fruit of the search.  (Interestingly, Judge Qasim found on page 12 of her decision that Detective Senel's (presumably Detective Selim Senel's) "assertion that there was information received regarding [Jones] in possession of a gun and was dangerous, to be lacking in credibility.")

The Appellate panel affirmed the trial judge's ruling finding that the ruling was amply supported by the record.

Friday, January 27, 2017

Apparently, the two men who terrorized a woman in her Aberdeen home at 2 a.m. were drunk, off-duty cops.

On December 31, 2016, I wrote "Aberdeen confidentially paid out $15,000 to settle police invasion of privacy lawsuit" about the Township's $15,000 settlement to a local woman named Yolanda Mitter who claimed that police banged on her door and terrorized her at 2 a.m. for no reason.  Since it didn't seem plausible that police would just show up at someone's home at 2 a.m. for no reason, a subsequent Open Public Records Act (OPRA) request was filed to get police reports and other documents that would shed some light on what prompted police to visit Mitter's home.

Today, Aberdeen responded to the OPRA request and, although the documents are heavily redacted, it appears that two intoxicated men did come to Mitter's house at 2 a.m. in their own personal vehicle to menace her.  From one witness statement (presumably Mitter's), the two men were drunk and drove from a tavern to Mitter's home and banged on the door and yelled at her in order to "play a joke on" Mitter's children's' father.  According to the witness' statement, the driver of the vehicle beeped the horn, gunned the engine and said "I know he's in there" and told the witness that he wasn't leaving until she "came downstairs so he can give me what [she] wanted and what [she] needed."

This activity alarmed the witness and caused her to dial 911.  When Aberdeen police arrived in response to the 911 call, the two men were still on the property, but without talking to the witness/resident, the investigating officers and the two men left.  Later in her statement, the witness said that one of the men, who identified himself to the witness' son as a being a police officer, came to the witness' home the next day to apologize.  According to the Mitter's children's father's statement, he was childhood friends with one of the men who frightened Mitter and he described his friend as being a police officer.  He said that this officer told him that he visited the home at 2 a.m. "just to bust [his] balls" and admitted that he "was drinking." 

According to Aberdeen's response to the OPRA request, no criminal charges against anyone arose out of this incident.

Monday, January 23, 2017

Former Commercial CFO fined $300 for Financial Disclosure Statement violations. However, ethics charges against Township Committee members for hiring CFO's company to train Township employee were dismissed.

On December 14, 2016, the Local Finance Board (LFB) fined Commercial Township's (Cumberland County) former Chief Financial Officer Judson Moore a total of $300 for failing to report on his 2014 and 2015 Financial Disclosure Statements (FDS) that he owned a business that conducts training seminars for local government officials and for failing to report the addresses of local real estate he owned on his 2011 FDS.  However, the LFB dismissed a complaint against Moore and Township Committee members George Garrison, William Riggin and Fletcher Jamison for authorizing a $99 payment to Moore's business to provide training for Township Clerk Hannah Nichols.

Both complaints were filed on August 26, 2013.  Complaint No. 13-035 alleged that Moore had simply wrote on his 2011 FDS that he "own[ed] parcels of vacant land in Commercial Township" rather than listing the address, block and lot of each parcel.  This failure netted Moore a Notice of Violation and a $100 fine.  Complaint No. 13-034 alleged that Moore and the three Committee members violated the Local Government Ethics Law by hiring Moore's company, Advance Learning, LLC, to provide training to a township employee.  The LFB tagged Moore with a Notice of Violation and a $200 fine for "declaring 'None' in the field requesting the name and address of all business organizations" in which he held an interest on his 2014 and 2015 FDS filings.

In dismissing the charges that Moore, Garrison, Riggin and Jamison acted unethically by authorizing Township money to go to a company owned by the Township CFO, LFB Chair Timothy J. Cunningham wrote that paying Moore's company was "not an action that could reasonably be expected to impair [Garrison's, Riggin's and Jamison's] objectivity or independence of judgment in the exercise of [their] official duties."  Cunningham noted that Moore advertised Advance Learning, LLC's seminars to New Jersey's southern six counties and that he did not participate in authorizing the payment.

After serving as CFO, Moore became the Township's mayor until his abrupt resignation on March 12, 2016.  It is presently unknown whether he has appealed either Notice of Violation.

After a three and a half year investigation, Local Finance Board says that Commercial's and Lawrence's attempt to keep their municipal lawyer in the pension system was not unethical.

Lawrence Mayor Miletta
On December 14, 2016, the Local Finance Board (LFB) finally resolved Complaint No. 13-013, which I had filed in April 2013.  I had complained that the members of the Lawrence and Commercial Township Committees (both in Cumberland County) had in 2008 created new positions for Thomas E. Seeley, who served as Township Solicitor for both townships. I alleged that those positions were designed to keep Seeley in the state's pension system despite a 2007 law that specifically sought to exclude professional services contractors, such as municipal lawyers, architects and engineers from being in the pension system.

My complaint found support in two documents.  First was an August 23, 2010 letter written to Seeley by Hank Schwedes, Supervising Pensions and Benefits Specialist from the Division of Pensions and Benefits.  Regarding Lawrence Township's appointment of Seeley to the position of "Property Administrator," Schwedes wrote that "the Division concludes that the position of 'Property Administrator' is a position designed to disguise [Seeley's] true relationship, thereby facilitating [Seeley's] continued membership in the PERS."  Schwede's letter concluded with an administrative determination that retroactively removed the pension credits Seeley had received by virtue of the new positions created by both townships.

Second, I presented the LFB with the Commercial Township Committee's August 21, 2008 meeting minutes in which former Township Administrator Judson Moore candidly admitted that the "Property Manager" position was being awarded to Mr. Seeley in direct response to the legislation to ensure that Mr. Seeley remained enrolled in the pension system. ("Mr. Moore said part of it is due to new ordinance mandated by the state Determining Positions Eligible for the Defined Contribution Retirement Program. This is a new form of pension plan for certain municipal employees. Solicitors cannot be paid 'other expenses' and a salary, it either has to be by salary or by other expenses. What this does is take his salary and other expenses figures which were already allocated in the budget and placing it under one category, which is his salary for pension purposes.")

In its December 14, 2016 Notice of Dismissal, Local Finance Board Chairman Timothy J. Cunningham dismissed the complaint against Commercial Township Committee members George W. Garrison, Fletcher Jamison and William Riggin; Lawrence Township Committee members Thomas Sheppard, Elmer Bowman, and Joseph Miletta.  Cunningham's letter also dismissed the complaint against Moore and Seeley even though I had not named them in my complaint.

Cunningham's letter noted that the Pension Division's review had discovered that "Seeley was not entitled to to membership in the [pension system]."  Once discovered, Seeley's "service time was reset."  Cunningham's letter held that the fact that Seeley "did not in fact collect any benefits from the retirement system" precluded a finding that anyone had done anything unethical.

I have written before about Seeley and Moore.  On September 10, 2012 I wrote "Township defends its tax-challenged municipal attorney" about the Internal Revenue Service having served notices of levy seizing the money that Lawrence Township owed Mr. Seeley for his legal services in order to recover hundreds of thousands of dollars in federal tax liens docketed against him.  On September 25, 2016, I wrote "Released documents claim that former Commercial Township Mayor used racial slur against fellow Township Committee member" about documents received in response to an Open Public Records Act (OPRA) lawsuit filed against the Township to discover the real reason that Moore had abruptly resigned as Commercial Township Mayor.

Wednesday, January 18, 2017

Identity of rebuked Hunterdon County Family Part judge disclosed.

The Appellate Division's practice is to not identify, in its written opinions, trial judges whose orders are reversed.  The Division's opinions, however, frequently identify trial judges whose opinions are affirmed.  This unfortunate practice makes it difficult for members of the public to identify trial judges who have a much higher than average reversal rate.

The Appellate Division's December 30, 2016 opinion in a domestic violence case captioned T.G. v. W.C., Docket No. A-5177-14T3 is consistent with the practice. In this case, Appellate Judges Carmen Messano and Michael A. Guadagno harshly rebuked a Hunterdon County Family Court judge who entered a final restraining order (FRO) against a man identified only by his initials W.C.  The opinion criticizes the trial judge for his "troubling statements," "the haphazard manner in which the hearing was conducted" and "erroneous information" given to W.C. about how his testimony would be used.  The details regarding the judge's improper statements and conduct are set forth in the opinion at the link above.

On December 30, 2016, I submitted a records request to the Appellate Division seeking the name of the trial judge.  (Note that the judiciary is not subject to the Open Public Records Act (OPRA) and that record requests need to be submitted according to the judiciary's records access procedure.)  I was informed today by Appellate Division Deputy Clerk John Grant that the trial judge was the Hon. Bradford M. Bury.  According to a January 30, 2013 Patch article, "Watchung, Green Brook Men Nominated for Legislative Positions," Bury hails from Watchung and was appointed by Governor Christie in 2013 and will up for tenure consideration in 2020.  Bury has served as an assistant prosecutor in both Union and Morris Counties.