Friday, December 13, 2013

Let's publicly identify this abusive Superior Court Judge

Today's records request to the Hudson County Judiciary.
 --------------------------
December 13, 2013

Gerald A. Buccafusco, TCA
Hudson County Superior Court
Administration Building
595 Newark Avenue
Jersey City, NJ 07306
(via Fax only to 201-795-6603)

Dear Trial Court Administrator Buccafusco:

I just read the Appellate Division's decision in State v. R.W.H. (on-line here) that arose out of a Hudson County Family Part case bearing Docket No. FO-09-423-09.  As noted by the Appellate Division, the conviction of and two-month jail sentence imposed against the defendant, "who had just been awarded custody of his three children . . . amounted to a prejudicial abuse of discretion."

I am astonished by the cavalier manner in which the trial judge conducted himself and would like to know the trial judge's name so that I can identify him in my blog.  I recognize the Appellate Division's unfortunate policy of never identifying reversed judges in their opinions (while frequently identifying judges whose decisions are affirmed), but I believe that the public has a right to know the names of judges who conduct themselves in such a poor fashion. 

Enclosed is a Judiciary Request form that references this letter. Please consider this request under the common law right of access in addition to the right of access conferred by http://www.judiciary.state.nj.us/rules/r1-38.htm.

Records Requested:

Any record, such a judgment of conviction, order for incarceration, which shows the identify of the judge who presided over the proceedings that resulted in R.W.H.'s August 5, 2009 conviction.  I understand that many Family Court records are confidential, so I just need one document, even if it has everything on it redacted except the caption of the case and the judge's name.

Very truly yours,

John Paff

Friday, November 29, 2013

Wildwood Crest authorizes $9,500 for "special outside investigator."

Something interesting is going on with the Wildwood Crest Police Department.  I've been submitting Open Public Records Act (OPRA) requests to try to find out what's going on, and this is what I've found out so far.

On October 24, 2013, the Wildwood Crest Board of Commissioners passed Resolutions 1131-13 and 1132-13, which, respectively, a) hired Joseph Beisel as a "special outside investigator for purposes of conducting an internal affairs investigation concerning employees administrative proceedings," and b) hired William G. Blaney, Esq. to perform some unspecified, but apparently related, services regarding the same investigation. Yet, according to Borough Clerk Janelle M. Holzmer's November 26, 2013 responsive e-mail "no contract was entered into for Mr. Beisel."

On November 18, 2013, the Commissioners passed Resolution 1144-13 which authorized James Fallon to act as a "special outside investigator for purposes of conducting an internal affairs investigation concerning employees administrative proceedings," apparently replacing Mr. Beisel. (Copy of the resolution and contract with Fallon are on-line here.)  The Board's decision to hire Fallon was made after the Board came out of closed (i.e. private) session and as the only item of business at the November 18, 2013 Board meeting. The resolution that authorized the Board's November 18, 2013 closed session, at the link above, states that the reason for the private meeting was to discuss "long-term administrative strategic plan." 

Anyone who has any information regarding what is really going on here may write to me at paff@pobox.com.  While I will maintain confidentiality, all are welcome to sign up for a free Hushmail account that will virtually assure anonymity.

Monday, November 18, 2013

Lawsuit: Stafford Police Sergeant alleges bias and retaliation.

On March 13, 2013, a sergeant with the Stafford Township (Ocean County) Police Department sued the Department, former Mayor James McMenamin, Township Administrator James Moran, Police Chief Joseph Giberson, III and Police Lieutenant Thomas J. Dellane for retaliating against him because he was not politically aligned with McMenamin and Giberson.

In his suit, a copy of which is on-line here (Linck v. Stafford, Docket No. OCN-L-734-13), Sergeant John L. Linck, said that he was politically aligned and allies with former Police Chiefs Thomas B. Conroy, who retired in 2010, and Larry D. Parker who retired in 2005.  He said that McMenamin, who previously was a Stafford police lieutenant, is politically aligned with Chief Giberson and that McMenamin and Giberson "were on the politically opposite sides of the fence" from Parker and Conroy.

Linck claims that after Conroy's retirement, he was transferred from his position as an administrative sergeant to working the road on the midnight shift, despite there being two sergeants with less seniority who worked the day shift. 

He further alleges that Giberson and Dellane refused to allow him to take a make-up of the "Chief's test" component of a three part exam in which he and six other officers were competing for promotion to lieutenant.  Linck claims that on the day of the "Chief's test," he was bedridden with bronchitis and influenza and that the refusal to allow a make-up was unreasonable given the fact that another officer, Michael Korpon, was allowed to take a make-up when he was ill in 2008.

Linck also claims that he was improperly given a lower evaluation than Sergeant James Vaughn even though he had ranked number one in productivity during 2012 while Vaughn scored last in productivity.  He alleges that the unfair way in which the test was scored, along with Giberson's refusal to let him take a make-up test, caused him to score seventh out of the seven candidates vying for the promotion.  He further claims that Giberson refused to evaluate his performance during the three years prior to the promotional test, causing him getting a lower score than he ought to have received.

Wednesday, November 6, 2013

Ewing Police Sergeant, previously indicted, allowed to retire.

The July 8, 2010 Times of Trenton reported that Ewing Police Sergeant Edward DeBoskey was indicted for official misconduct and theft by deception for allegedly loafing at a private home instead of supervising street patrols.

Today, through an Open Public Records Act request, I was able to determine that on September 24, 2012, DeBoskey and Ewing agreed that DeBoskey would be allowed to retire after being allowed to receive the one month credit he needed to acquire his 20 years of service.  The settlement agreement is on-line here.

According to DataUniverse, DeBoskey, whose final salary was $109,505 is receiving an annual pension of $54,752.64.





Tuesday, August 20, 2013

North Bergen in-house lawyer with questionable work responsibilities identified.

On page 21 of his report, June 25, 2013 report on "Legal Fees Paid by New Jersey Local Governments," Comptroller A. Matthew Boxer wrote:
When we initially asked the [North Bergen] Township Attorney and the Township Administrator about the job duties of the remaining in-house attorney (the “In-House Attorney”), we were informed that he was paid a salary of $18,807 in FY 2011. They stated that they were unsure if he was North Bergen’s Alcohol Beverage Control Board Attorney or its Tenant Advocate. Following our interviews and a follow-up document request, North Bergen advised us that they commenced an internal review to determine whether he was actually performing any job duties for North Bergen.

Immediately after North Bergen commenced its review and requested information from the In-House Attorney regarding his job duties, he submitted a letter resigning from his position. North Bergen subsequently asserted to us that he had received a salary for unknown job duties without the consent of any Township officials. As a result, North Bergen advised us that it would be referring the matter to the Hudson County Prosecutor’s Office to determine whether any criminal violations had been committed by the In-House Attorney.
Yet, the Comptroller's report did not name the In-House Attorney and I could not find any media or other reports that named him or her.  So, I submitted an OPRA request for the In-House Attorney's letter of resignation.

The North Bergen custodian of records returned the letter, click here, which identifies the In-House Attorney as Eric J. Bal of 1435 46th Street, North Bergen.  In the letter, he identifies himself as North Bergen's Housing Attorney.

Friday, August 16, 2013

New Jersey reprimands Cherry Hill psychologist and fines him $500.

On February 14, 2013, the New Jersey Board of Psychological Examiners reprimanded Ronald Gruen, Ed.D., of Cherry Hill, for "making a written submission to a court [which] constituted a violation of confidentiality . . . without the knowledge and consent" of a former patient, identified only by the initials "S.S."

Gruen accepted the reprimand and agreed to pay a $500 civil penalty in lieu of having formal charges filed against him.  The letter from the State and Gruen's statement of acceptance are on-line here.

Friday, August 2, 2013

Gloucester County high school teacher resigns. Claims traumatic brain injury caused alleged misconduct with female students.

By letter of June 27, 2013, a Williamstown High School Special Needs teacher resigned in exchange for his employer, the Monroe Township School District, agreeing to withdraw tenure charges against him and to provide him with a "generic letter of recommendation."  According to filed documents, the teacher had been suspended from his position, with pay, since March 6, 2013.

In his resignation letter, teacher John C. Coulton, who reportedly earned $83,620 in 2012 and was enrolled in the pension plan in 1992, said that he had consulted with a lawyer and tendered his resignation to avoid tenure charges being presented at a Monroe Township Board of Education meeting scheduled for the evening of June 27, 2013.

The tenure charge statement report charged Coulton with six questionable incidents involving female students.  In the first charge, Coulton allegedly asked a student in March 2009 if she would like "to go to dinner with him with candle light and soft music in the background." This incident resulted in a meeting with board officials who told Coulton that "his conduct is not appropriate behavior."

In the second charge, Coulton allegedly asked a female student in 2012 why she wasn't in the football field house "giving head" to the players and coaches.  Coulton explained that he actually told the student to "give them heck."

The third charges involved a March 5, 2013 incident in which Coulton allegedly texted profanity to female student repeatedly because she had forgotten his birthday.  The student reported to school officials that Coulton "gave her gifts such as gift cards, brought her snacks, sent her text messages early in the morning and late at night, invited her to his home, and questioned her about having a boyfriend."

In the fourth charge, Coulton allegedly texted a female student since she was a freshman.  Coulton allegedly asked her to "dog sit at his house" and after she ignored him he allegedly told her that "he would pay her and she could use his pool."

The fifth count charged Coulton with "always text[ing] the girls on the basketball team" and the sixth count charged Coulton with giving one girl two $50 gift cards and another a cell phone.

In his response to the charges, Coulton, through Mount Laurel attorney Keith Waldman, said that he was a "valued employee . . . for ten years" and that the charges were "completely undermined by the fact that the Board and its administrators chose to do nothing with the allegation for four years."  He attributed the later incidents to a December 7, 2012 on the job injury that caused a "very serious concussion" when he was assaulted by a parent at a school function held at the Rowan Football Field."  He claimed that a "well-documented symptom of traumatic brain injury and post-concussion syndrome is loss of inhibitions."  In his response, he threatened to bring a lawsuit under the Americans with Disabilities Act against the school district for refusing to accommodate his disability.

The resignation letter, tenure charges and Coulton's defense are all on-line here.

Monday, June 17, 2013

Letter to Manville - seeking repeal of invalid ordinance

06/27/13 Update: The Manville Council will discuss my repeal request at its July 15, 2013 meeting.  Click here.
June 17, 2013

Hon. Angelo Corradino, Mayor and members of the
Manville Borough Council
325 North Main Street
Manville, NJ 08835 (via e-mail only to ggarwacke@manvillenj.org)

RE: Ordinance #396

Dear Mayor Corradino and Council members:

The object of this letter is to get the Borough Council to finally repeal the captioned ordinance, on-line here, which seeks to prohibit various types of "vice, immorality, drunkenness and disorderly conduct."  I have checked the "New Ordinances" page on your web site and it appears that Ord #396 has yet to be repealed.

On-line here is former Borough Attorney C. Douglas Reina's June 16, 2003 letter in which he opines that "there is no question but that [Ord. #396] has been preempted by the provisions of Title 2C of the New Jersey Statutes."  In the same letter, Mr. Reina promises that Ord. #396 will not be included within the upcoming ordinance codification.  It appears now--10 years later--that neither the repeal nor the codification ever occurred.

On-line here is an August 5, 2011 letter from the Somerset County Prosecutor's Office warning Manville Municipal Prosecutor Matthew C. Dorsi that he might face an "ethical complaint and/or a supercession by this office" if he was again caught improperly downgrading statutory charges to Ord. #396 violations. 

Given that a) the Borough's own attorney has deemed Ord. #396 invalid and b) that the County Prosecutor won't let your local prosecutor downgrade statutory charges to it, do you agree with me that it's high time that Manville repealed this relic from the books?

I ask that you please discuss this during the June 24, 2013 Council meeting.

Very truly yours,

John Paff, Chairman
New Jersey Libertarian Party's
Preempted Ordinance Repeal Project
P.O. Box 5424
Somerset, NJ  08875-5424
Voice: 732-873-1251


Pot defendant gets his watch back

For readers who aren't familiar with asset forfeiture matters, I have uploaded a forfeiture complaint and its settlement from the case of State v. One Breitling Watch/Four Thousand Ninety Five Dollars ($4,095.00), Docket No. MID-L-6295-09 here.

According to the complaint, two men were arrested in Woodbridge on May 12, 2009 for possession of fifty-two pounds of marijuana.  When the men were searched, police seized $4,095 and a Breitling watch found in their possession.  On April 18, 2013, the parties settled the forfeiture action with the prosecutor keeping the cash but returning the watch to its owner in "as in condition."

Readers will note that the complaint is styled as a "civil action" and that the cash and the watch, as opposed to the men themselves, are named as defendants.  Incredibly, New Jersey law (as well as federal law and the laws in most states) allow the government to "resort to a legal fiction" and sue the property itself "as though it were conscious instead of inanimate and insentient.” (See State of New Jersey v. One 1990 Honda Accord, 302 N.J. Super. 225, 229 (App. Div. 1997) affirmed 154 N.J. 373 (1998).

Resorting to this legal fiction allows the state many advantages.  Among them are a) the state only needs to satisfy a civil rather than a criminal burden of proof (preponderance of the evidence v. beyond a reasonable doubt) and b) "the fact that a prosecution involving seized property terminates without a conviction does not preclude forfeiture proceedings against the property."  N.J.S.A. 2C:64-4(b).  Yes, even if you're found not guilty of all crimes, the state still has a shot at forfeiting your stuff.  The state theorizes that a not guilty finding doesn't mean that you didn't do it, only that the prosecution wasn't able to prove a crime beyond a reasonable doubt. An acquittal, of course, should not prevent the state from seeking title to your property under the lower, civil burden of proof.  Got that?

To sweeten the deal even more, the police--in this case the Woodbridge Police--get a cut of the forfeited cash and property.  N.J.S.A. 2C:64-6 authorizes county prosecutors to "divide the forfeited property, any proceeds resulting from the forfeiture or any money seized" with local police departments "in proportion to the [local police department's] contribution to the surveillance, investigation, arrest or prosecution resulting in the forfeiture."  So, in essence, the police have a vested interest in pursuing drug, gambling and other cases where lots of cash is likely to be found.  Not much profit, unfortunately, in solving burglaries, rapes and other crimes where there is an identifiable victim.

Sunday, May 19, 2013

Can parents exempt their kids from Cinnaminson Township's Curfew?


Like many New Jersey municipalities, Cinnaminson Township (Burlington County) has a juvenile curfew ordinance that prohibits juveniles under the age of seventeen from being in public after 10:30 p.m. on week nights and midnight on weekends.  The ordinance is on-line here.

Unlike most curfew ordinances, Cinnaminson's contains an exception for juveniles who are out after hours "exercising First Amendment rights protected by the United States Constitution, such as the free exercise of religion, freedom of speech and the right of assembly. "

In order to qualify for the exemption, however, the juvenile must provide the local police written notice, 24 hours in advance, "signed by the juvenile and countersigned by a parent . . . specifying when, where and in what manner the juvenile will be on the street at night . . .  in the exercise of the First Amendment rights specified in such communication."

Thus, any Cinnaminson parent who objects to the curfew could apparently permanently exempt his or child from the ordinance by simply having the juvenile write a letter to the police stating:  "Starting 24 hours after your receipt of this letter, which is countersigned by my parent, and extending until my seventeenth birthday, will be in public at hours prohibited by the Township's curfew ordinance.  During those hours, I will be speaking to people I meet and urging them to demand from the Cinnaminson mayor and governing body a full repeal of the curfew ordinance.  Since I will be engaging in core political speech, which is protected by both the state and federal constitutions,  I am exempted from the curfew by Ord. section 237-4(c).   Please instruct all Cinnaminson police officers to not interfere with my activity if they observe me in public during prohibited hours."

Sunday, April 21, 2013

Ethics Complaint against Lawrence and Commercial Township officials

01/23/17 UpdateComplaint dismissed.

April 22, 2013

Thomas H. Neff, Chair
Local Finance Board
101 S Broad St – PO Box 803
Trenton, NJ 08625-0803   
(via e-mail only to thomas.neff@dca.state.nj.us)           

Dear Mr. Neff:

I intend this letter to be my complaint against a total of six (6) Local Government Officers in the Townships of Lawrence and Commercial in Cumberland County.  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 alleged to be violated. 

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"

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

Complainant John Paff and the New Jersey Libertarian Party and the following six individuals who served on the Commercial Township and Lawrence Township Committees in 2008:
  • George W. Garrison (Commercial)
  • Fletcher Jamison (Commercial)
  • William Riggin (Commercial)
  • Thomas Sheppard (Lawrence)
  • Elmer Bowman (Lawrence)
  • Joseph Miletta (Lawrence)
3.    Set forth in detail the pertinent facts surrounding the alleged violative action.

By way of background, P.L. 2007, c. 29, which became effective on January 1, 2008, was reform legislation "designed to ensure the system serves career public employees rather than political appointees" and to "cut out the entrenched core of abuse that has been corrupting our pension and benefits systems from within." (See Governor Corzine's press release, on-line here, issued when he signed the legislation into law).  One of the components of the new law, N.J.S.A. 43:15A-7.2,  excluded professional services contractors, such as municipal lawyers, architects and engineers from enrolling in the state's PERS pension system.

Yet, according to an August 23, 2010 letter (on-line here) from the New Jersey Division of Pension and Benefits, both Commercial and Lawrence Townships maintained special job titles (Lawrence Township used "Property Administrator" and Commercial Township used "Property Manager" and "Tax Lien Manager") and awarded those position in 2008 to Thomas E. Seeley, Esq., who served (and still serves) as Township Attorney for Townships.

The Division found that both Townships had engaged in a thinly veiled attempt to circumvent the newly enacted pension reforms.  Indeed, the Division's letter, in reference to Lawrence Township, stated that "the Division concludes that the position of 'Property Administrator' is a position designed to disguise your true relationship, thereby facilitating your continued membership in the PERS."  According to the minutes of the Commercial Township Committee's August 21, 2008 public meeting (the relevant pages are on-line here), 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 sum, we assert that these elected officials acted with an intent to provide Mr. Seeley with an unwarranted financial benefit by creating a subterfuge designed to circumvent the pension reform legislation.  Accordingly, we believe that these officials should be penalized.

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.


Complainant has 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 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,

John Paff, Chairman
New Jersey Libertarian Party's
Open Government Advocacy Project
P.O. Box 5424
Somerset, NJ  08875
Voice: 732-873-1251
Fax: 908-325-0129
e-mail: paff@pobox.com

Thursday, April 11, 2013

Possible Conflict of Interest in Middletown and Union Beach Municipal Courts

UPDATE: 

By letter of April 16, 2013, the Advisory Committee on Judicial Conduct found that Judge Thompson did not violate an Canons of Judicial Ethics.  The letter is on-line here.
 ---------------------------------
April 11, 2013

Hon. Gerald P. Scharfenberger, Mayor, and members of the
Middletown Township Committee
via e-mail only to HBrunt@middletownnj.org

RE:    Possible conflict of interest regarding Municipal Judge Richard B. Thompson, Esq. and Municipal Prosecutor Gerald Massell, Esq.

Dear Mayor Scharfenberger and Committee members:

This is in follow-up to my May 12, 2012 letter, a copy of which is on-line here.   Unfortunately, I received no response from you (nor did I receive any response from Judge Colannino) so I thought that I'd check back with you in hopes that you would grant me the favor of a response--even if it is to simply inform me that you're not willing to entertain any further correspondence on the matter.

As you are aware, Richard B. Thompson, Esq. and Gerald Massell, Esq. serve, respectively, as the Judge and Prosecutor of the Middletown Municipal Courts. In my May 12, 2012 letter, I provided you unverified information that I had obtained from a letter to the editor published in May 11, 2012 Atlantic Highlands Herald.  I have since done my own research and have determined the following to be true.

1.  According to the New Jersey Lawyers Diary and Manual, both Thompson and Massell maintain private law offices at 222 Highway 35 in Middletown.  Their Diary entries on-line here.

2. According to the New Jersey Association of County Tax Boards' web site, the property at 222 Highway 35 is owned by Elizabeth Massell of 34 Concord Court in Red Bank, New Jersey.  The "property card" taken from the NJACT's site is on-line here.

3. According to Prosecutor Massell's Financial Disclosure Statement (on-line here), his wife is Maureen T. Massell, disproving the suggestion in my May 12, 2012 letter that Prosecutor Massell's wife owns 222 Highway 35.

4. According to an obituary published in the August 5, 2011 Asbury Park Press (on-line here), the late Elizabeth Massell, who was presumably the same person who owned 222 Highway 35, was Prosecutor Massell's mother.

I am not informed whether Elizabeth Massell had made a will or whether her estate has been distributed.  Thus, I don't know which of her heirs has an ownership interest in 222 Highway 35.  But, since parents typically make their children heirs of their estates, I cannot rule out the possibility that Prosecutor Massell (and, perhaps his brother Middletown Committeeman Stephen Massell) currently has an ownership interest in 222 Highway 35.  Such would make Prosecutor Massell Judge Thompson's landlord, which I believe would constitute a conflict of interest.

Would you please inquire as to the manner in which Elizabeth Massell's estate was probated or administered?  If it turns out that members of Prosecutor Massell's family (and not the Prosecutor himself) owns or controls 222 Highway 35, I believe that this financial connection still constitutes a conflict even if it is not as stark as the conflict that would arise if Prosecutor Massell himself owns or controls 222 Highway 35

I am sending a copy of this letter to Mayor Paul J. Smith and members of the Union Beach Borough Council since Judge Thompson and Prosecutor Massell also serve in that municipal court.

Thank you for your attention to this matter.


John Paff, Chairman
New Jersey Libertarian Party's
Open Government Advocacy Project
P.O. Box 5424
Somerset, NJ  08875
Voice: 732-873-1251
Fax: 908-325-0129
e-mail: paff@pobox.com


cc. Mayor Paul J. Smith and members of the Union Beach Borough Council
Via e-mail only to ubboroclerk@optonline.net


Monday, April 8, 2013

Why was Ronald C. Aron, who serves as both an Oaklyn Borough Councilman and a Haddon Township Police Officer, busted from sergeant to patrol officer?

According to his Financial Disclosure Statement, Oaklyn Borough (Camden County) Councilman Ronald C. Aron also serves as a Police Sergeant in nearby Haddon Township.   A lawsuit and settlement agreement that I received by way of an Open Public Records Act (OPRA) request shows that a March 23, 2010 administrative hearing found that Aron had violated police department regulations.  Aron challenged the discipline in an April 5, 2010 lawsuit (Aron v. Township of Haddon, Docket No. CAM-L-1759-10) and then appealed to the Appellate Division of the Superior Court (Aron v. Township of Haddon, Docket No. A-4407-10T4). 

In November 2012, Aron settled his lawsuit and appeal with the Township and agreed to: a) plead guilty to "conduct detrimental to the good order of the police department," b) accept a 10 day unpaid, disciplinary suspension, c) forfeit 80 hours of accrued sick time and d) accept a "one year demotion from the rank of sergeant to patrol officer" which had already been served. 

Haddon officials have been mum on the nature of the conduct that landed Aron in disciplinary hot water.  I am attempting to learn those details because I think that Oaklyn voters need to know should Aron decide to run for reelection.  But, Haddon officials will likely hold to their position that the privacy interests of a disciplined police officer who also serves an elected official outweigh the public's right to know.

John Paff, Chairman
New Jersey Libertarian Party's
Police Accountability Project
Somerset, New Jersey



Monday, March 18, 2013

Regarding Readington Township's "Peace and Good Order" ordinance

March 19, 2013

Sharon A. Dragan, Esq.
Ballard & Dragan
260 US Hwy 202-31
Flemington, NJ 08822

RE: Readington Township Ordinance 05-2013

Dear Ms. Dragan:

I am in receipt of, and a bit confused by, your March 18, 2013 letter regarding the captioned ordinance.

First, you correctly state that N.J.S.A. 40:48-1 empowers municipalities to "Prevent vice, drunkenness and immorality; to preserve the public peace and order; to prevent and quell riots, disturbances and disorderly assemblages."  This language, from ¶ 6 of N.J.S.A. 40:48-1 appears to have been enacted well before the New Jersey Criminal Code.  While I'd have to go to the law library to check, it appears that the "riots, disturbances and disorderly assemblages" language was part of the Home Rule Act of 1917, L.1917, c. 152, Art. XIV, § 1.

In any event, the same language is cited in State v. Crawley, 90 N.J. 241 (1982). In Crawley, the New Jersey Supreme Court recognized that

Indeed, N.J.S.A. 40:48-1, reenacted only months before the Criminal Code, specifically authorizes the adoption of municipal ordinances “to preserve the public peace and order; to prevent and quell riots, disturbances and disorderly assemblages; [and] to prevent littering, lounging or sleeping in the streets, parks or public places.” [The New Jersey] Constitution directs that grants of power to municipalities be liberally construed in favor of the local governments. Nevertheless, two principles limit the permissible scope of municipal legislation. First, . . . the grant of legislative powers to municipalities “relates to matters of local concern which may be determined to be necessary and proper for the good and welfare of local inhabitants, and not to those matters involving state policy or in the realm of affairs of general public interest and applicability.” Second, municipalities may not enact ordinances on matters otherwise competent for local legislation if the State has preempted the field.
Id. at 247-48, emphasis supplied.

Thus, according to Crawley, the legislature grants municipalities the power to regulate public peace and order, but only when the regulations are a) needed to address "unique local concerns requiring an individualized response by the municipality" (See, State v. Paserchia, 356 N.J. Super 461, 467 (App. Div. 2003) and, b) not preempted by state law.

So, while the legislature, nearly a century ago, gave municipalities a broad grant of municipal power, that power has been significantly circumscribed by Crawley, Paserchia and other cases. 

The confusing part of your letter is near the end of the second paragraph.
However, your basic points regarding broadness and the fact that municipal law cannot exceed State authority when the State has made it clear that it intends to occupy the field in a certain area are understood. I would hope that the Township's judges, in interpreting municipal law would be cognizant of a person's right to free speech (subject to time, place and manner restrictions) and any overriding State statues; I do believe that this has historically been the case in Readington as I have not heard of any objections to the Township's application of its prior ordinance G-91.
Implicit in your statement is an acknowledgement that at least parts of the ordinance are preempted or unconstitutional.  And, you rely on the municipal court judge to sort the valid parts of the ordinance from the invalid parts in order to ensure that citizens' expressive rights, as well as their rights to be free from preempted laws, are not infringed upon. 

But, the only time that a judge will have an opportunity to interpret this ordinance is when a person who is charged with violating it pleads not guilty.  I think that making citizens endure a prosecution under the ordinance in order to determine its validity is unduly oppressive upon those charged.  I think that it's your job, as Township Attorney, to carefully review the ordinance, identify the invalid parts and recommend repeal of those invalid parts to the Township Committee.  Are you willing to take on that task?

Thank you for your attention to this matter.

Sincerely,

John Paff, Chairman
New Jersey Libertarian Party's
Preempted Ordinance Repeal Project
P.O. Box 5424
Somerset, NJ  08875
Voice: 732-873-1251
Fax: 908-325-0129
e-mail: paff@pobox.com

Thursday, January 31, 2013

Deptford EMT sues for sexual harassment and retaliation

On December 26, 2012, Dawn Law, an Emergency Medical Technician employed by Deptford Township (Gloucester County) sued the Township under the New Jersey Law Against Discrimination (Law v. Township of Deptford, Docket No. GLO-L-1890-12, a copy of which is on-line here.)

Law, who has worked as a Deptford EMT since 2000, claimed that EMT Deputy Chief David Snyder sent her a text message on October 2, 2012 "propositioning her to engage in a sexual relationship."  Law claimed that the invitation was "unanticipated, unwelcomed and unappreciated."  Snyder then allegedly tried to meet with Law for a matter not related to work.

Thereafter, Law claimed she was afraid that she might be forced to work shifts alone with Snyder.  After reporting Snyder's advances to Chief Tom Newman, Snyder was allegedly given a choice between resigning immediately or being suspended pending an investigation. 

Then, a few days later, Law was ordered to meet with Deptford Township Solicitor Doug Long.  According to the complaint, Long told Law that "he had conducted a preliminary investigation and decided that the relationship between plaintiff and Mr. Snyder was consensual."  Long allegedly then gave Law a choice between resigning and receiving a check for unpaid sick and vacation time or to "fight Mr. Long and be suspended for 30 days and then terminated."  Law claims that neither she nor her partner, Paul Reyes, were interviewed during Long's alleged investigation.  After declining Long's offer to resign, Law claims that she was suspended from duty from October 25, 2012 to November 19, 2012. 

Law, who is represented by Kevin Costello, Esq. of Mount Laurel, claims entitlement to damages and attorney fees.

Law's allegations are only that--allegations.  Nothing has been proven and no negative inferences should be drawn against Law, Snyder, Long or anyone else.

Tuesday, January 29, 2013

Stafford Council ignoring its own towing rotation ordinance

January 29, 2013

Hon. John Spodofora, Mayor and Members of the
Stafford Township Council
260 East Bay Ave
Manahawkin, NJ 08050
(via e-mail only to BPark@twp.stafford.nj.us)

Dear Mayor Spodofora and Council members:

I believe that the Township is currently out of compliance with § 192-5 of its municipal code.  That section states:
§ 192-5. Eligibility for rotating list.

In addition to meeting all other criteria of this chapter and in order to be eligible for placement upon the rotating list of authorized towers, the contractor shall supply a certificate of liability insurance by a company licensed to do business in the State of New Jersey, certifying that the contractor maintains workers compensation and garage liability insurance of not less than $1,000,000 combined single limit, garage keepers' liability of not less than $100,000 per vehicle, said garage keepers' legal liability insurance policy to further provide for fire, theft and explosion. All public liability insurance, including garage liability and garage keepers' legal liability coverage, shall name the Township of Stafford, its officers, agents and employees as additional insureds on the policy, shall hold them harmless, indemnify them from any and all claims filed against the Township arising out of any act or failure to act on behalf of the contractor and shall contain an endorsement providing 30 days' notice to the Township in the event of any material changes of the policy or cancellation thereof. Those contractors meeting the eligibility requirements shall be approved and added to the rotating list by resolution of the Township Council, upon advice of the Chief of Police. (Emphasis supplied)
I recently submitted an OPRA request to Clerk Bernadette Park seeking "the most recently passed Township Council resolution that added contractors to the rotating list in accordance with Ord. §. 192-5."  In response, Ms. Park provided me with no resolution but wrote:
In response to your question regarding towing licenses here in Stafford.  The is no current or fixed date or term of any towing licenses here in Stafford.  However, each year towing contractors, in order to be eligible for towing here in Stafford must supply a certificate of liability insurance certifying that the towing contractor maintains worker compensation & garage liability insurance and also names the township of Stafford as additional insured on their policy.  There is a criminal history check and drivers license check done by the Stafford Township Police Department yearly on all employees that are employed by towing contractors.
Yet, the Township Code doesn't permit the Police Department and Township Administration, acting alone, to put towing contractors to be put on the rotation.  Rather, the Code explicitly requires the Police Chief's recommended towing companies to "be approved and added to the rotating list by resolution of the Township Council."  Absent a resolution, none of the towing companies that the Township currently recognizes as being on the rotation list (Mark's Towing & Road Service, Midnite Towing Inc., South Shore Towing Inc. and Stohrer Bros. Inc.) are properly on the towing list for want of an authorizing resolution.

I believe that government needs to turn sharp corners when dealing with the public, especially here, when the Township Committee is, in effect, conferring a towing monopoly on these four towing companies.  If the Township Code calls for a resolution, then your choices are either to pass a resolution or amend the code to remove the resolution requirement.

Beyond that, there is a good policy reason underlying the Code's requirement that resolutions be passed.  Passing resolutions during an open, public meeting informs members of the public of the companies which which the Township has chosen to do business and provides them with an opportunity, during the public portion of the meeting, to criticize or commend the companies selected and also to note and comment on any familial or business affiliations between those companies and the Council members who currently serve.

I look forward to hearing from you on this matter.

John Paff, Chairman
New Jersey Libertarian Party's
Open Government Advocacy Project
P.O. Box 5424
Somerset, NJ  08875
Voice: 732-873-1251
Fax: 908-325-0129
e-mail: paff@pobox.com


Sunday, January 27, 2013

Absecon Police Officer April Kolakowski: Perennial victim or a troublemaker?

According to a December 28, 2012 Press of Atlantic City article ("Police Officer sues Absecon, alleges procedural violation," by Derek Harper), Absecon Police Officer April M. Kolakowski filed suit against the City of Absecon seeking to overturn disciplinary penalties imposed upon her.  Kolakowski's lawsuit, which was filed by Attorney John C. Eastlack of Cherry Hill, is captioned Kolakowski v.; City of Absecon, Docket No. ATL-L-7953-12 and is available on-line here.

According to her suit, Kolakowski (formerly April Van Daley) started with the Absecon Police Department in 2003 as a dispatcher and became a patrol officer in 2008.  She alleges that disciplinary charges were filed against her on September 29, 2009 but that she wasn't afforded a hearing until June 1, 2012.  Kolakowski's lawsuit does not mention the nature of the charges against her or the discipline imposed.  The Press article, however, states that the disciplinary charges arose out an "encounter" Kolakowski had with Absecon Emergency Services Chief Rich Hudson after a tenant at a local motel allegedly received inadequate medical care. 

This is the third time Kolakowski has employed the courts to resolve disputes.   

The 2001 Lawsuit:


In 2001, she filed a lawsuit against Somers Point Police Chief Orville F. Mathis and others alleging sexual harassment and retaliation. (Van Daley v. Richard Cohen Associates, et al, Docket No. ATL-L-1262-01)

In this suit, Kolakowski, who was hired in March 1999, alleged that since she was the first and only female officer at the time, male police officials conspired to have her removed from the department.  They accomplished this, she said, through humiliation, the filing of bogus disciplinary charges and requiring her to undergo a "fitness for duty psychological evaluation." She claimed that the evaluation was not genuine but a pretext to allow officials to documented fabrications that would support their quest to have her fired.

Kolakowski said that senior police officers John Divel and Salvatore Armenia, "abused the [supervisory] authority" they had over her "so as to discriminate against [her]."  For example, Divel, her squad supervisor, allegedly demonstrated a "sexist attitude" toward her, "deliberately humiliat[ed] [her] on the radio" and required her to follow rules to which no male officer was required to follow. Armenia, she claimed, told her "that if she had to utilize the restroom facilities while on duty, she must expressly ask permission to do so and could do so only in the police department." 

Her suit further alleged that Chief Mathis ordered her to go to the "fitness for duty psychological evaluation" which was conducted by Richard Cohen, Ph.D.  During those sessions, Cohen allegedly asked Kolakowski about "intimate sexual details of her life," including whether she ever "made out" with Divel.  She claimed that Mathis "hand-picked" Cohen as the evaluator because he knew "that he would willingly shape his opinion or testimony so as to provide the maximum harm to [Kolakowski's] position."

Kolakowski's suit, which was filed by Cherry Hill attorney Clifford L. Van Syoc, settled on September 23, 2013 for $180,000.  The lawsuit and settlement agreement are on-line here.

(Mathis, who was born in 1942, retired in 2007 and is collecting an $87,349 annual pension. Divel, who was born in 1959, retired in 2011 and is collecting a $62,314 annual pension. Armenia became chief in 2007 after Mathis retired.  He since retired effective December 31, 2011.  In 2011 he collected an annual salary of $142,948.)

The 2005 Lawsuit:

On October 4, 2005, Kolakowski filed a lawsuit against the City of Absecon alleging that the City, despite promises to the contrary, refused to give her a position as a police officer because of the earlier lawsuit she filed against Somers Point.  (Van Daley v. City of Absecon, et al, Docket No. ATL-L-6532-05.)

In the 2005 suit, Kolakowski alleged that Absecon hired her as a police dispatcher in August of 2003 after she had "resigned in good standing" from the Somers Point Police Department.  After a year as working as a dispatcher, she applied for an opening as a full time Absecon Police Officer.  She alleges that Police Chief Charles J. Smith told her that she was "just edged out" by another candidate.  Yet, Smith, according to the lawsuit, refused to show Kolakowski the list of the candidates' rankings.

Thereafter, she applied for another police officer position.  This time, she alleged that she was promised the position.  But, she alleged, Sergeant David Risley and "Henchy" (presumably Officer Robert Henchy), after speaking with a Somers Point officer, determined that Kolakowski was a "troublemaker" and that it would be "a mistake" to hire her.  Ultimately, Joyce H. Lee, an Asian female, was hired instead of Kolakowski even though she was allegedly not qualified for the position. 

Kolakowski's suit settled on March 5, 2008.  Kolakowski received $40,000 for "emotional distress" and her attorney, Clifford L. Van Syoc, received $55,000.  Kolakowski was also allowed to become a Probationary Police Officer and was given a one-month paid leave of absence "as an expression of good faith" so that she could be "fully prepared for the Police Academy." The lawsuit and settlement agreement are on-line here.

(Chief Smith retired at age 53 in 2008, and at the time of this retirement, he was given a 18.9 increase in his pay and his pension, which brought his salary to $104,698 and his pension to $51,342. He was also given a check for $281,874 for unused sick, vacation and personal time.  David Risley, who made $92,592 in 2011, became Absecon's police chief in March 2012 after former chief Joseph J. Cowan abruptly retired on February 1, 2012 at age 48.  Before his retirement, Cowan made $128,700 in 2011.  Robert Henchy retired in 2011, at age 48, at a final salary of $93,676. He will receive an annual pension of $60,889. Joyce Lee was promoted to sergeant in April 2012, and made $81,543 in 2011.)