Tuesday, July 18, 2017

Appellate Court: East Orange under no duty to pay $300K excessive force verdict against police officers.

In a July 16, 2017 decision, the New Jersey Superior Court, Appellate Division, affirmed an Essex County trial judge's ruling that the City of East Orange is not responsible for paying a $300,000 verdict a woman obtained against two city police officers in 2009. 

Esmay Parchment, then 62, had claimed that the two officers, William Flood and Kim Johnson, had barged into her home in February 2001 when she answered her door wrapped only in a towel. According to February 4, 2012 Star Ledger article, when Parchment wasn't quick enough to answer the officers' questions, they allegedly slapped and kicked her "even after the towel fell away and she lay naked on her kitchen floor."

The appeals court, as well as the trial court, found that the City had decided to "go bare" by electing not to purchase insurance or participate in a joint insurance fund.  Both courts found that the City's decision to defend the officers in court did not force it to indemnify those officers if a judgment was entered against them.  Also, the Star Ledger article quotes an assistant city attorney as saying that "the city has no obligation to pay the settlement because the officers were found individually liable."

Monday, July 17, 2017

Cumberland SPCA discloses invoices. Discounts not passed on to taxpayer in some cases.

In response to a court order, the Cumberland County Society for Prevention of Cruelty to Animals (CCSPCA) disclosed unredacted versions of invoices that it had received from a veterinary clinic and submitted for reimbursement to the City of Millville.  In some cases, the unredacted invoices show that the clinic had given the CCSPCA a 50% discount that the CCSPCA's redacted versions, which were submitted to the City, did not reflect.  In sum, the CCSPCA in certain cases received discounts from the clinic that it did not pass along to Millville taxpayers.

As an illustration, I have posted a five-page document here.  The first page shows that CCSPCA invoiced the City of Millville for, among other items, $48 and $101 for exam and euthanasia cases SC34786 and SC34788, respectively.  Pages 2 and 4 are redacted versions of the clinic's invoices for cases SC34786 and SC34788, respectively, that Millville provided in response to an Open Public Records Act (OPRA) request.  Millville claimed that those invoices, which disclosed only the $48 and $101 figures and not any discounts, were redacted by the CCSPCA prior to having been submitted to the City for payment.  Pages 3 and 5 are unredacted versions of Pages 2 and 4 and show that the $48 and $101 charges were actually discounted by $24 and $50.50 respectively.

There is no evidence that the CCSPCA's decision to not pass the discounts along to Millville violated any law or its contract with the City.  Also, some of the invoices disclosed in response to the court order were redacted only to remove information related to other towns for which the CCSPCA performed services.  

Readers who want to compare the unredacted invoices that the CCSPCA disclosed in response to the lawsuit and the redacted versions of those same invoices may find them here and here.  For more information on the lawsuit out of which the court order arose, click here.

Tuesday, July 11, 2017

Burlington judge affirms bridge cop's firing.

In a May 8, 2017 order, Burlington County Superior Court Judge Janet Z. Smith affirmed the Burlington County Bridge Commission's September 13, 2016 decision to terminate one of its police officers for failing to pass a random urinalysis.

According to a September 1, 2016 report written by Hearing Officer James D. Fattorini, Officer Garry S. Church, Jr. (also referred to as Gary S. Church, Jr.) was served with departmental charges on April 21, 2016 because he tested positive for amphetamines as a result of an April 12, 2016 random drug screen.  Fattorini, who also serves as Burlington County Bridge Commission's vice-chairman, found that 6,870 ng/ml of amphetamines were found in Church's urine which was well above cut off level of 500 ng/ml.  Fattorini's report is one of several exhibits attached to Church's civil complaint.

Four days after having been advised of the presence of amphetamines in his urine, Church reportedly told Bridge Commission officials that he had taken some of his father's medicine when he had a sore throat.  During an administrative hearing, Church said that he thought that his father's medicine bottle contained Amoxicillin, an antibiotic, so he took two pills a day from the bottle for five days during April 2016.  According to Fattorini's report, the medicine bottle that that Church offered as evidence during his hearing "was a bottle of Adderall prescribed to his father."  Adderall is an amphetamine. Church reportedly testified that he never read the labels on the bottle and conceded that the label also instructed him that "Federal Law prohibits the transfer of this drug to any other person than the patient for whom it was prescribed."

According to a July 8, 2016 letter from the Commission's Human Resources Director, Church submitted a hair follicle test result to the Commission in early June 2016.  Church apparently believed that the test would prove his innocence. But, the Commission "determined that the hair follicle test did not establish a defense to the violation in this matter, nor did it absolve [Church] of liability."  Yet, Fattorini's report stated: "On May 19, 2016, Officer Church submitted to a hair follicle test which resulted in a negative testing for amphetamines."

In his report, Fattorini wrote: "I [] find that based upon Officer Church's actions and inactions in blindly consuming ten (10) pills, his inaction in not responding with his explanation for a period of four days, his inaction in not getting a hair follicle test for a period of one month, and his action of taking not one, but ten pills admittedly not belonging to him in clear violation of the State statute and according to the bottle, a Violation of Federal law, all lead to the determination that termination is the appropriate disciplinary sanction."

In her May 8, 2017 Order, Judge Smith wrote that she had heard testimony from both Church and his father at an April 12, 2017 hearing.  Based on reasons she orally placed on the record during that hearing, she affirmed Church's termination.

Appellate Division affirms dismissal of insurer's lawsuit against Elizabeth woman and her lawyer for violating "confidentiality clause" in settlement agreement.

It all started with a parking ticket that was issued to Lorraine Selecky in 2009 for parking in a handicapped spot.  The ticket, which was mailed to Selecky, was issued by James Cantrell, an off-duty Roselle Park Borough (Union County) police officer with whom Selecky engaged in an argument at a Redbox video vending machine outside a 7-Eleven store in the Borough.

Selecky was convicted of the offense by a municipal court judge and the conviction was affirmed by a Union County Superior Court judge.  On January 11, 2012, the Appellate Division reversed the conviction and ordered a new trial in a different municipal court.  After the new court acquitted Selecky of the parking offense, her lawyer, Joel I. Rachmiel of Springfield, filed a civil, malicious prosecution action against Cantrell and the Roselle Park Police Department.  That lawsuit resulted in a $15,000 settlement being paid to Selecky by the New Jersey Intergovernmental Insurance Fund (NJIIF)--the Borough's insurer.  But, the settlement imposed a confidentiality clause that forbade Selecky and Rachmiel from disclosing the terms or even the existence of the settlement agreement.

On May 20, 2014, I learned of the settlement through an Open Public Record Act (OPRA) request and published it on my NJ Civil Settlements blog.  That blog article drew the interest of Star Ledger reporter Tom Haydon who wrote a June 1, 2014 article entitled "Elizabeth woman wins five-year battle over parking ticket."

Both Selecky and Rachmiel were interviewed by Haydon and the quotes attributed to them in Haydon's article referred to the underlying parking ticket rather than the settlement agreement.  Still, the NJIIF sued both Selecky and Rachmiel and argued that by speaking with Haydon, they violated the settlement agreement's confidentiality clause.

A Union County Superior Court judge granted Selecky's and Rachmiel's motion for summary judgment after finding that their comments "did not discuss" the malicious prosecution action and that the comments had "nothing to do with" the Borough or the police officer.  The judge found that the only statement that violated the confidentiality clause was made by Borough Attorney Richard Huxford, who was also quoted in the article.  The NJIIF appealed the trial judge's grant of Selecky's and Rachmiel's summary judgment motion and the Appellate Division, in a July 11, 2017 opinion, affirmed that ruling.

Saturday, July 1, 2017

Mullica (again) seeks to pass illegal "Peace and Good Order" ordinance.

On July 11, 2017, the Mullica Township (Atlantic County) Committee will consider enacting Ordinance No. 6-2017 which seeks to establish a "Peace and Good Order" code in the Township.  Among other things, the ordinance will prohibit "participat[ing] in any practice having a tendency to annoy, disturb or frighten any person or animal in any public place."  Also prohibited will be "[a]ll other riotous, indecent or disorderly conduct, breach of the peace and vagrancy not hereinabove specifically mentioned."

These prohibitions are almost certainly unconstitutional because they are overly broad and vague.  The ability to conduct oneself in public without being arrested cannot depend on whether ones conduct might annoy or disturb somebody else.  Otherwise, everyone would be required to conform their conduct to the preferences of the most sensitive person in town.  Penal codes, especially those governing speech and assembly, need to be narrowly tailored to prohibit specific conduct while preserving citizens' rights to lawfully express themselves.

However, according to Committeeman Christopher Silva, the Township's main intention is not to directly enforce the ordinance.  Rather, as Silva stated at the May 23, 2017 Committee meeting, "the focus of the Ordinance is a catch-all to plead out a lesser statute in municipal court."  So, Mullica probably realizes that it can't enforce the ordinance but still wants to have it on the books so that municipal court defendants can plead down their statutory offenses to violations of the ordinance. 

For example, a person charged with simple assault, a violation of the New Jersey Criminal Code, could plea-bargain the charge down to an ordinance violation.  This would allow the defendant to avoid having an assault conviction on his or her record and from having to pay mandatory assessments to the Violent Crimes Compensation Board and Safe Neighborhood Services Fund.

The apparent goal is to entice defendants to not demand costly and time-consuming trials but to instead plea bargain their charges and line up at the Court Administrator's payment window with checkbooks in hand.

Beyond raising troubling policy concerns (e.g. Isn't saddling a violent assailant with an assault conviction on his or her criminal record a good thing?  Isn't it wrong for Mullica to let defendants evade paying into the Violent Crimes and Safe Neighborhood Funds?), Mullica's proposal also runs afoul of a 1998 Attorney General Directive that prohibits municipal court prosecutors from pleading down statutory offenses to ordinance violations when the ordinance is pre-empted by state law.  Since everything prohibited by the ordinance is either unconstitutional or already prohibited by Chapter 33 in Title 2C of the New Jersey Criminal Code, using the ordinance in the manner that Silva suggests would violate the 1998 Directive.

Over the years, I, as chairman of the New Jersey Libertarian Party's Preempted Ordinance Repeal Project, have notified six county prosecutors of violations of Directive and in each case the prosecutor has agreed with me and told the town to stop the improper plea bargains.  Here is the proof:

Bergen (my letter and the reply)
Burlington (my letter and the reply)
Cumberland (my letter and the reply)
Gloucester (my letter and the reply)
Morris (my letter and the reply)
Somerset (my letter and the reply)

Yet, engaging in these prohibited plea bargains is exactly what Silva and the other members of Township Committee have in mind. 

Mullica attempted to pass a similar version of this ordinance in late 2014.  After being roundly criticized by the public and press, the Committee decided to abandon the effort.  See "'Peace and Good Order' / Misguided in Mullica." Press of Atlantic City, December 16, 2014.  The Committee should take a similar tack this time.

Thursday, June 22, 2017

Ethics Complaint alleges that two Council members in Middlesex County town voted to declare five police vacancies when their blood relatives were on the police hire list.

On May 1, 2017, two members of the Sayreville Borough Council voted to declare five vacancies in the Borough's police department while both Council members had blood relatives--a son and a brother--on the certified list of eligible candidates from which those vacant police positions would be filled.  The Council members claimed that the Borough Attorney said that their votes did not violate the Local Government Ethics Law because neither blood relative was financially dependent upon the Council members.

With all due respect to the Borough Attorney, I believe that the Council members had at least a "indirect . . . personal" relationship with their blood relatives which "might reasonably be expected to impair [their] objectivity or independence of judgment." This is the criteria set forth in the Local Government Ethics Law.  Accordingly, I (and the New Jersey Libertarian Party) have filed a formal ethics complaint (see below) with the Local Finance Board against both Council members.

Unfortunately, the public won't know the result of this complaint any time soon. It typically takes two to four years for the Local Finance Board to resolve ethics complaints.

-------------------------------------------
Patricia Parkin McNamara
Local Finance Board
101 S Broad St – PO Box 803
Trenton, NJ 08625-0803
(via e-mail only to Patricia.McNamara@dca.state.nj.us)

Dear Ms. McNamara:

We intend this e-mail to be our complaint against Victoria Kilpatrick and Mary Novak who, at all times relevant to the activities alleged below, served both as members of the Sayreville Borough Council (Middlesex County).  At issue is whether Kilpatrick and Novak violated the Local Government Ethics Law by voting to declare five vacancies in the Borough's police department while their relatives (i.e. Kilpatrick's brother and Novak's son) were on the list of prospective employees from which the five officers who would fill those vacancies would be selected.

In accordance with N.J.A.C. 5:35-1.1(b), following are the required elements of the complaint:

1. State the point of the Local Government Ethics Law (LGEL) alleged to be violated. 

N.J.S.A. 40A:9-22.5(c) and (d).

2. State the name(s) and title(s) of the parties involved in the action and against whom the complaint is filed. 

Complainants John Paff and the New Jersey Libertarian Party and Respondents Council member Victoria Kilpatrick and Council member Mary Novak.

3. Set forth in detail the pertinent facts surrounding the alleged violative action. 

Relevant to this complaint is the video recording of the May 1, 2017 meeting of the Sayreville Borough Council, which is on-line here.  Also relevant is an article entitled "Residents question practices behind hiring Sayreville officers" authored by Staff Writer Matthew Sockol and published by Greater Media Newspapers on May 16, 2017, which is on-line here.

FACTS:

The following facts are apparent from the video and article.

a. Novak and Kilpatrick both have blood relatives on the current list of eligible applicants from which the five vacant police officer positions will be filled.  (Article: According to Mayor O'Brien, "Novak’s son and Kilpatrick’s brother were on the employment list.") (Video: Time stamp 11:40 through 13:09).

b. According to Novak, Borough Attorney Michael DuPont, who was not present at the May 1, 2017 meeting, told her that participating in and voting on a matter impacting on her son's potential employment as a Borough police officer did not run afoul of the Local Government Ethics Law because her son was not her dependent. (Article: "Novak said she was told by borough attorney Michael DuPont, who was not in attendance at the meeting, that she could vote on the matter because it was not an ethical problem as long as the child is not a dependent.") (Video: Time stamp 11:56 through 12:17; 12:45 through 12:53)

c. Kilpatrick asserted that since her brother was not her dependent, she also was not prohibited by the Local Government Ethics Law from participating in and voting on a matter that impacted on her brother's potential employment as a Borough police officer. (Article: "Kilpatrick stated that her brother was not a dependent of hers.")(Video: Time stamp 12:54 through 13:09)

d. During the May 1, 2017 closed session, a straw vote was taken that declared five vacancies in the police department which would be filled by the candidates on the list that included Novak's son and Kilpatrick's brother. (Video: Time stamp 1:39:11 through 1:39:34)

e. When questioned by a representative of the police union regarding the ethical propriety of Novak and Kilpatrick participating and voting on the declaration of five police department vacancies, Labor Attorney Bob Clarke said that while he did not research it himself, Borough Attorney DuPont had said that there was a "solid legal ground" for his conclusion that Novak's and Kilpatrick's participation and voting were not unethical.  (Video: Time stamp 1:39:50 through 1:41:30)

f. The current list of candidates contained no veterans.  (Video: Time stamp 1:45:38 through 1:45:48; 1:48:46 through 1:49:02)

g. As of May 1, 2017, there were veterans eligible to be hired as a Borough police officer, but they could not be placed on the eligibility list unless and until the existing list was returned and new list was created. (Video: Time stamp 1:44:42 through 1:47:12)

h. Any veterans placed on the eligibility list would have been given preference over the other non-veteran applicants when hiring decisions were made. (Video: Time stamp 1:47:45 through 1:48:02)

i. Both Novak and Kilpatrick voted in favor of the public motion to declare the five vacancies. (Video: Time stamp 1:57:53 through 2:00:30)

j. The creation of the vacancies prevented the Council from a new list--one that would include veterans--from being created. (Video: Time stamp 2:00:40 through 2:01:57)

From listening to the recording at 1:49:35 through 1:57:32 and the vote at 1:57:53 through 2:00:30, it becomes apparent that i) by declaring the five vacancies, the Council forced itself to fill those vacancies within a 45-day period; ii) had the Council not then declared the five vacancies, it could have had a new eligibility list certified that would have included veterans who would have been accorded hiring priority over the non-veterans on the list.  Thus, Novak's and Kilpatrick's "aye" votes on the motion to declare the five vacancies inured to the benefit of their blood relatives by helping insure that veterans were excluded from the eligibility list.  In sum, Novak's and Kilpatrick's "aye" votes helped prevent veterans from getting in the hiring queue in front of their blood relatives.

ANALYSIS:

N.J.S.A. 40A:9-22.5(d) states that "No local government officer or employee shall act in his official capacity in 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 or personal involvement that might reasonably be expected to impair his objectivity or independence of judgment."

Novak and Kilpatrick appear to argue that N.J.S.A. 40A:9-22.5(i), which defines a "Member of immediate family" as "the spouse or dependent child of a local government officer or employee residing in the same household," somehow exempts them from the scope of N.J.S.A. 40A:9-22.5(d).

Whether or not Novak's son or Kilpatrick's brother resided with these municipal council members or were financially dependent upon them is irrelevant.  Rather, the question turns on whether Novak and Kilpatrick had, at the time of the vote, a "direct or indirect financial or personal involvement that might reasonably be expected to impair [their] objectivity or independence of judgment."  It is plain that a mother (or a sister) has at least an indirect personal involvement in seeing that her son (or brother) receives a desirable position.  And, it is equally plain that a local government officer's relationship with a blood relative "might reasonably be expected to impair [her] objectivity or independence of judgment."  Accordingly, if the Local Government Ethics Law means anything at all, it should not countenance a mother (or sister) voting to give her son (or brother) who seeks public employment an advantage over anyone, especially military veterans.

Further, N.J.S.A. 40A:9-22.5(c) states that "No local government officer or employee shall use or attempt to use his official position to secure unwarranted privileges or advantages for himself or others."  Had the military veterans been allowed onto the list, Novak's son and Kilpatrick's brother would have moved down in hiring priority on the eligibility list.  Their vote allowed Novak's son and Kilpatrick's brother to keep their higher position on the list which is an "unwarranted privilege or advantage."

4. Indicate whether the complaint concerns the complainant in any way and what, if any, relationship the complainant has to the subject of the complaint. 

Complainants have no interest in or relationship to this complaint greater than any other citizen or organization who wishes for all government officers and employees to comply fully with the Local Government Ethics Law.

5. Indicate any other action previously taken in an attempt to resolve the issue and indicate whether the issue is the subject of pending litigation elsewhere. 

No other action has been taken previously in an attempt to resolve this issue and, as far as we know, this issue is not the subject of any pending litigation.

Thank you for your attention to this matter. I ask that you please acknowledge your receipt of this complaint within 30 days.

Sincerely,

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

Wednesday, May 24, 2017

Ethics complaint arising out of 2007 transaction filed against New Brunswick attorney in 2017.

A New Brunswick attorney is facing ethics charges for allegedly misleading a judge during a September 17, 2007 hearing regarding the identity of the payee of a $160,000 settlement check.  The attorney is claiming that his "constitutional right to due process is compromised" because length of time that has passed since the hearing and because of malfunctions of the tape recorder that recorded the hearing.

Frank J. Shamy, who maintains an office at 22 Kirkpatrick Street, New Brunswick, is the subject of March 29, 2017 complaint being prosecuted on behalf of the District VI Ethics Committee by attorney Daniel P. D'Alessandro of the Newark law firm of McCarter & English, LLP.  According to the complaint, Shamy successfully negotiated a $240,000 settlement in July 2007 that resolved his client's lawsuit against its insurance carrier.  Although the policyholder was Belov Technology, a dormant corporation that was founded by Dr. Valery Belov, Shamy allegedly remitted $160,000 of the settlement to Dr. Belov personally, rather than the corporation, after having retained his $80,000, one-third share. 

The underlying lawsuit was not initiated by Shamy.  Rather, it was filed by another attorney named Robert Kenny who, according to the complaint, filed the lawsuit but withdrew as counsel in 2006.  The complaint was brought in the name of Sunstone, Inc., another dormant corporation founded by Dr. Belov.

Despite having withdrawn from the matter, Kenny believed that he was entitled to be paid for the work he put into the case.  In order to collect for his work, he filed suit against Dr. Belov, Belov's son and the two corporations (Sunstone and Belov Technology) in February 2007--prior to the $240,000 settlement being negotiated.  Shamy represented the defendants in the fee lawsuit and claimed that Kenny was due nothing because of he withdrew from the case.

Shamy's alleged ethics infraction arose out of what he said and did not say during a September 17, 2007 hearing where Kenny sought to prevent Shamy from distributing the settlement so that Kenny could collect his fee, as determined by the court, from the settlement proceeds.  Even though Shamy had already disbursed the settlement funds to Belov personally, the complaint, referring to the hearing's transcript, quotes Shamy as having told the judge that he disbursed the funds "to the corporations."  This, according to the complaint, misled the court into believing that an order preventing the corporations from disbursing the funds would benefit Kenny when in fact the corporations were merely empty shells with no assets. 

The crux of the complaint against Shamy is that he did not "correct the Court or clarify any confusion that may have been caused by [Shamy's] statement that the settlement proceeds were disbursed to Belov Technology or Sunstone and not Dr. Belov."  D'Alessandro claimed that Shamy's alleged concealment was a "knowing and intentional misrepresentation" that violated several of the Rules of Professional Conduct.

Shamy, in his answer (at the link above, following the complaint), admitted that he disbursed the $160,000 to Dr. Belov personally rather than the corporations and that the transcripts did record him saying "Judge, it was disbursed to the corporations."  But, he noted that immediately prior to his statement to the judge, the transcript reflects that "Tape begins to malfunction."  Shamy wrote that he "had misspoken" but that he never intended to mislead the Court or Kenny.

In his defense, Shamy wrote that he went into the September 17th hearing believing that the critical issue for the court to determine was whether he still had the money in his trust account or whether he disbursed it.  He wrote that he "did not believe whether the check was written to Dr. Belov or the corporations was material to" the hearing.  Since the Court dissolved all restraints that protected the settlement funds at the conclusion of the hearing, Shamy argued, "I don't understand how my statement could have materially misled the Court." "The Court lifted all restraints," he wrote. "Therefore, even if I had written the check to the corporations, at the conclusion of the hearing, those entities were free to disburse the monies as they saw fit."

Shamy is being represented by Donald M. Lomurro of Freehold.

On April 15, 2008, Shamy was admonished by ethics authorities in a separate matter for signing his client's name to a release and for making small, interest-free loans to three clients without first advising them to consult with independent counsel.

What is written above is just a summary and the complaint and Shamy's answer, should be read in their entirety in order to obtain the best understanding of the case.  The ethics charges are only allegations--nothing has been proven. Shamy has a right to a hearing and the burden of proof is on disciplinary officials to prove that he violated the Rules of Professional Conduct.

Since 1995, attorney disciplinary hearings have been open to the public. Anyone who is interested in being notified in advance of any hearings on Shamy's matter may complete and send a hearing request form to the District VI Ethics Committee Secretary Jack Jay Wind via fax to 201-333-1110.