Monday, January 16, 2017

Board Attorney: OK for Board to hire public relations firm that worked for majority of Board members' campaigns.

The 17th page of the Elizabeth (Union County) Board of Education's May 12, 2016 meeting minutes show that the Board retained by a 6-2 vote Strategic Message Management, Inc. as a vendor at a cost not to exceed $50,000.  According to Board member Daniel Nina, the firm was hired "on as-needed basis" at "an hourly rate when we need the firm to represent the district."

After a motion was made and seconded to hire the firm, Board member Carlos Trujillo wanted the record to reflect that the firm has done "political consulting work for seven members of this Board of Education."  Trujillo asked Board Counsel Jonathan Williams of DeCotiis, Fitzpatrick & Cole to confirm that there was no conflict "for anyone voting in the affirmative for this even though [the firm] has done work on the campaigns, the political campaigns of the Board members."  Williams assured Trujillo that no such conflict existed. 

Mr. Williams undoubtedly knows far more about the School Ethics Law than me, but it seems to me that public officials ought to be prohibited from voting to award public money to businesses that do work for them individually.  The law on the subject, N.J.S.A. 18A:12-24(c), prohibits a school official from officially acting on "any matter where he, a member of his immediate family, or a business organization in which he has an interest, has a direct or indirect financial involvement that might reasonably be expected to impair his objectivity or independence of judgment."  I think that a board member's business relationship with his or her campaign consultant is at least an indirect financial involvement that the public could reasonably expect to impair the Board member's objectivity.

To see all the pages of the May 12, 2016 minutes, as well as the minutes of other Board meetings, visit the Board's website.

Sunday, January 15, 2017

Cop's "whistleblower" complaint against Washington Township scheduled for March trial.

Assemblyman Paul Moriarty
A Conscientious Employee Protection Act (CEPA) lawsuit filed in 2013 by a Washington Township (Gloucester County) police officer who himself was indicted after arresting a member of the New Jersey General Assembly for drunk driving is scheduled to be tried before Gloucester County Superior Court Judge David W. Morgan on March 13, 2017.  Defendants in the suit include Bob Smith, the Township's former administrator who also did a stint as acting mayor, and recently-retired police chief Rafael Muniz.

In his lawsuit, Joseph DiBuonaventura, who remains suspended from the police department but is seeking reinstatement in a separate court action, claims that Township officials retaliated against him for reporting unknown officers for "fixing" traffic tickets that he had issued in September 2011 to "the relative of retired WTPD Captain John Vanonni."  DiBuonaventura's lawsuit also claimed that Muniz attempted to subvert an investigation into allegations that Muniz's son Lorenzo stole more than $7,000 worth of jewelry from a resident's home.  According to media reports, the younger Muniz was ultimately entered into the Pretrial Intervention (PTI) program.

DiBuonaventura's lawsuit also claimed that he was retaliated against for having arrested former Washington Township mayor (and current member of the New Jersey General Assembly) Paul Moriarty on July 31, 2012 for drunk driving and refusing a submit to an Alcotest.  According to the court filing, in October 2012 Moriarty met with Muniz and others for assistance "in drafting and filing criminal charges against" DiBuonaventura.  With the alleged assistance of Muniz and members of his staff, Moriarty filed twenty-seven criminal charges with the Washington Township Municipal Court.  DiBuonaventura was formally served with thirteen charges on November 19, 2012 and was indicted on May 1, 2013. 

A jury acquitted DiBuonaventura on all charges on March 3, 2015 and the Prosecutor's office also dropped the drunk driving and other charges against Moriarty.  In September 2016, Moriarty received a $50,000 settlement of his civil suit against DiBuonaventura from the Tri-County Joint Insurance Fund, Washington Township's insurer.

The March 27, 2017 trial will likely be postponed because depositions are still being taken.

JIF picks up tab in Assemblyman's $50,000 settlement.

On January 12, 2017, I wrote an article about Assemblyman Paul D. Moriarty settling his lawsuit against Washington Township (Gloucester County) Patrol Officer Joseph DiBuonaventura for $50,000.  In the article, I stated that it was "unclear whether the $50,000 was paid for by DiBuonaventura, Washington Township or the Township's insurance carrier."

Yesterday, Mr. DiBuonaventura reached out to me and waived confidentiality to two September 13, 2016 letters from his attorney, Robert A. Baxter, revealing that the $50,000 was paid by the Tri-County Joint Insurance Fund which insures Washington Township.  DiBuonaventura also told me that the settlement was paid without his consent and that if he had been given an opportunity, he would have fought the settlement and required Moriarty to prove his case in court.

I don't fully understand why the Township's insurer paid the $50,000.  On March 30, 2015, the court dismissed Moriarty's case against the Township and against DiBuonaventura acting "in his official capacity."  According to an April 11, 2015 Philadelphia Inquirer article, the dismissal did not affect Moriarty's case against DiBuonaventura in his "individual capacity" and William C. Popjoy, III, Moriarty's attorney, is quoted as having said "Certainly, the federal court is recognizing our ability to go after Officer DiBuonaventura directly."

If the March 30, 2015 order ended the Township's (and thus the JIF's) responsibility to pay Moriarty, why did the JIF ultimately pay?

Thursday, December 22, 2016

Police union complains that Sea Isle City police chief is "demeaning and insulting."

In a December 10, 2016 letter to Sea Isle City (Cape May County) Mayor Len Desiderio, the Cape May County Fraternal Order of Police Lodge #7 stated that "we have come to a point where we no longer have confidence in the leadership of Chief of Police Thomas J. D'Intino."

The letter goes on to state that the chief "has regularly engaged in conduct toward members of the department that can be described as both demeaning and insulting" and cites "markedly low morale, lack of positive dialogue and [a] failure to address situations involving training, equipment and grievances."

The letter, which requests a meeting with the Mayor and City Council, states that the union does "not intend to make these issues a public spectacle."

Middletown taxpayers must reimburse teachers pension fund $3.8 million.

An appeals court today affirmed a ruling requiring the Middletown Board of Education (Monmouth County) to reimburse its pension fund $3,815,600 for offering Board employees an "illegal" early retirement incentive.

According to the Appellate Division's December 22, 2016 opinion, the Middletown school board approved a "sidebar agreement" with the local teachers union on October 22, 2007 that offered tenured teachers who retired or resigned prior to June 30, 2008 $225 for each unused sick day up to a maximum of $40,000.  The agreement similarly offered non-certified union members $125 per sick day up to a maximum of $20,000. 

The next day, an Audit Supervisor with the Division of Pensions and Benefits, who had heard about the offering, said that the offering needed to be reviewed by the Division and asked the Board for specific information which the Board provided on November 5, 2007.  By then, five teachers and a secretary had exercised their rights under the sidebar agreement. 

On August 1, 2008, the Division informed the Board that the early retirement benefit was "impermissible" and directed the Board to "provide a final list of all individuals" that had taken advantage of it so that a Division actuary could "develop the acceleration cost of this incentive which in turn will be billed to [the Board]."  Although the Board responded to the Division on August 11, 2008, the Division did not get back to the Board until February 6, 2014.  On that date, the Division informed the Board that it was "responsible for the additional pension liabilities created" by its unauthorized early retirement incentive.  The Division calculated the present value of those pension liabilities at $5,429,900 and invoiced the Board for that amount.

The Board appealed the Division's decision and invoice to Teachers' Pension and Annuity Fund (TPFA) Board of Trustees.  On December 14, 2014, the TPFA affirmed the Division's ruling that the early retirement incentive was illegal but reduced the assessment to $3,815,600 and allowed the Board to pay that amount over a five year period at no interest.

The Board filed another appeal which was resolved by the TPFA's March 13, 2015 written decision.  That decision held that 41 employees ultimately took advantage of the sidebar agreement's early retirement incentive and that those early retirements burdened the pension fund. 

The Appellate Division rejected the Board's appeal of the TPFA's ruling.  The court found that the Board "approved the Sidebar Agreement without consulting the Division or obtaining approval and then implemented the Sidebar Agreement after receiving a letter from the Division stating approval was required before such a plan could be implemented."  The court also noted that the Board failed to provide any actuarial evidence to contest the findings of the Division's actuary.

Wednesday, December 21, 2016

Pennsauken school employee accused of breaking leg of bullied student.

In a lawsuit filed in September 2015, a male seventh-grader who claimed to have been bullied since the fourth grade said that a math teacher threw him to the ground and broke his leg while he was trying to defend himself from a bully's attack.

In their lawsuit, the student, identified as Z.B., and his parents said that Z.B. constant exposure to bullying was reported but that school officials failed to protect him.  According to the lawsuit, the bullying worsened in 7th grade when a another student, N.G. "pointed a realistic looking toy gun at Z.B. in school," an act which allegedly netted N.G. eighteen months of probation.  Z.B. claimed that when two other students threatened him, he received detention for being threatened.

According to the suit, Z.B. was "sucker punched" in the face on June 9, 2014 by student D.B. and that "while D.B. was physically attacking Z.B., Pennsauken School employee John DelGrippo violently pulled Z.B. away from the scene and threw Z.B. to the ground" causing Z.B. to "incur a bone fracture" and other injuries.  An employee named "John DelGrippo" is listed on the school board's website as being a math teacher at Phifer Middle School.

The lawsuit is presently in discovery phase and no proceedings are currently scheduled.  Z.B. and his parents are being represented by Gregg L. Zeff of Mount Laurel and the school district is being defended by William S. Donio of Cooper Levenson of Atlantic City.

Monday, December 12, 2016

Actions that "may" cause emotional harm justify revocation of license to run a home for the developmentally disabled even if those actions do not cause actual emotional harm.

Today, the Appellate Division upheld a decision by the Department of Human Services to revoke a woman's license to operate a residence for developmentally disabled people.  According to the decision, licensee Alice Wilkins, after days of having dealt with a defiant 20-year-old patient who had been "crying, cursing, screaming, and punching the walls," told the patient that she would have her "locked up in Ancora [Psychiatric Hospital]."  She also admitted to having locked the front door of the residence after the patient left with a packed bag, even though she did immediately let the patient back into the house after she banged on the door.  According to the decision, the patient, identified only as F.D, "had a history of disagreements with her caregivers" and "there were several reports of documented instances of F.D. falsely accusing other mentors and their family members of misconduct," including false claims about a teacher making advances toward her and a mentor's family member raping her.

An Administrative Law Judge reversed the Department's decision to revoke Wilkins' license.  The judge found that events occurring during the days leading up to the "Ancora" threat "amply portrayed F.D.'s deteriorating behavior and tendency to provoke, manipulate or lie."  The judge also noted that Wilkins had reached out to her employer and the Department of Developmental Disabilities for help with F.D. but that neither assisted her.  The judge ultimately found that Wilkins did not lock F.D. out of the house and that her "Ancora" comment was "not abusive when viewed in context."

The Department reversed the Administrative Law Judge's decision because "the fact that Wilkins' actions were not intention did not excuse them," that "verbal threats and demeaning statements . . . may cause emotional harm" and that "it is not relevant that there is no actual emotional harm, as long as the actions . . . are of a type that may cause emotional harm."  The Department also ruled that that neither Wilkins' remorse nor the amount of stress that she was under excused her actions.

The Appellate Division, which is required to uphold the Department's decision unless it is arbitrary, capricious or unreasonable, upheld Wilkins' license revocation.  The two-judge panel said that while it "appreciate[d] the [judge's] concerns regarding the harshness of the revocation of Wilkins' license based upon the actions of a single day when she acted under stress, especially where the blame for the incident should be shared with those who ignored her prior pleas for help," it also recognized "that the primary concern of the agency and the applicable regulations are to protect very vulnerable, developmentally disabled individuals, who are frequently difficult to manage from even unintentional abuse and neglect."