Tuesday, December 29, 2015

State: Fire Board failed to properly account for over $100K in enforcement penalties.

After reporting on a $150,000 settlement in Dwayne Breeden's whistleblower and discrimination lawsuit against Neptune Township (Monmouth County) Fire District No. 1, I decided to request a Division of Fire Safety report that, according to Breeden, found a number of "regulatory violations" and "financial and budgetary irregularities" in the Fire District.  I've placed the Division's October 28, 2013 "Field Monitoring Visit" on-line.

The report essentially backs up Breeden's lawsuit's claims.  While it lists a number of regulatory paperwork violations, the report most notably points out that the Neptune Board failed to properly account for $101,900.35 it received in enforcement penalties.  The report also found that Breeden was placed in the position of "Temporary Fire Official" for longer than permitted.

Thursday, December 24, 2015

Tabernacle school board's lawyer sanctioned for hearing no-show.

An administrative judge ordered an attorney from the Mount Laurel law firm of Parker McCay to pay his adversary $2,626.68 for missing one court hearing and being late to another.

In his December 21, 2015 ruling, Administrative Law Judge John R. Futey ordered lawyer Cameron R. Morgan to pay $2,626.68 to reimburse attorney Jamie Epstein for the time he wasted attending a May 14, 2015 hearing for which Morgan failed to appear and for arriving one hour and twenty minutes late to another hearing.  Morgan's lapses occurred during his representation of the Tabernacle Township (Burlington County) Board of Education in a special education matter.  Futey characterized Morgan's excuse for failing to attend the May hearing as "lame at best."

Friday, December 18, 2015

The renewal of Jersey City Superintendent Marcia Lyles' Contract

First, I'm opposed to a state law that automatically grants school superintendents multi-year contracts unless the school board votes to NOT renew.  Second, I'm having a hard time understanding how Jersey City's school board's lawyer determined that its superintendent's contract was renewed by a non-vote in this particular case.  So, here's my letter to the Hudson County Superintendent of Schools.
December 18, 2015

Monica M. Tone
Interim Executive County Superintendent
of Hudson County
via Email to Monica.Tone@doe.state.nj.us and 
Fax to 201-369-5288 

In re the renewal of Jersey City Superintendent Marcia Lyles' Contract

Dear Superintendent Tone:

An article was published today, December 18, 2015, in the Hudson County View entitled "Jersey City Superintendent Lyles receives new 4-year contract with schools."  According to the article, Jersey City Superintendent Marcia Lyles, whose present contract expires on June 30, 2016, received a four year renewal of her contract because there were not five board members eligible to vote at the December 17, 2015 school board meeting at which a resolution that would have rejected renewal of Lyle's contract was offered.  

According to the article, of the nine members who serve on the school board, only seven were present at the December 17th meeting.  Of those seven members, "three were ineligible to vote due to family members who work in the district."  This left four members which, according to board counsel Ramon Rivera, prevented the board from voting on a resolution that would have rejected the contract renewal.

I have two questions and hope that you can provide some clarification.

1. N.J.S.A. 18A:17-20.1, which presumably supersedes Lyles' contract (see #2 below), doesn't require the board to decide whether or not to renew the contract until March 1, 2016.

N.J.S.A. 18A:17-20.1 states:
At the conclusion of the term of the initial contract or of any subsequent contract as hereinafter provided, the superintendent shall be deemed reappointed for another contracted term of the same duration as the previous contract unless either: a. the board by contract reappoints him for a different term which term shall be not less than three nor more than five years, in which event reappointments thereafter shall be deemed for the new term unless a different term is again specified; or b. the board notifies the superintendent in writing that he will not be reappointed at the end of the current term, in which event his employment shall cease at the expiration of that term , provided that such notification shall be given prior to the expiration of the first or any subsequent contract by a length of time equal to 30 days for each year in the term of the current contract.
My reading of this statute gives the Board until 120 days (i.e. 30 days for each of year of Lyle's four-year contract) prior to June 30, 2016 to notify Lyles that her contract will not be renewed.  According to my calculations, this gives the Board until March 1, 2016 to decide whether or not to renew Lyles' contract.  If this is so, then why would a lack of five eligible voters at the December 17, 2015 meeting foreclose the possibility that five or more eligible voters might attend a meeting prior to March 1, 2016 and vote on a resolution to not renew Lyle's contract?

2. Lyles' contract, if it somehow supersedes the statute, does not provide for renewal of her contract unless the board affirmatively votes to renew it.

Paragraph 11 The unsigned version of Lyles' present contract that I found on the Board's website states:
The parties agree that prior to October 31, 2015, the Superintendent shall notify the Board of her desire to extend her employment on the terms offered or upon other terms upon which the parties may agree. The Board agrees that by December 31, 2015 it shall notify the Superintendent in writing whether it desires to renew this Agreement for an additional period of time, and of the terms and conditions proposed for that period. Failure to notify the Superintendent by that date of an intention to renew will mean that an offer of renewal is not being made.
Assuming that Lyles stated her desire to renew in a timely manner, the board's failure to notify her by December 31, 2015 of its decision to renew would appear to signal the board decision to not renew.  

I look forward to hearing from you.

Very truly yours,

John Paff

cc to all the school board members and the board attorney

Thursday, December 17, 2015

Officer who received disciplinary demotion is suing Medford for passing him over for sergeant position.

According to his July 2015 lawsuit, a former Medford Township (Burlington County) Police Sergeant claimed that he accepted a demotion to the rank of corporal in 2012 in order to accommodate the Township's decision, made for reasons of economy, to decrease the number of police officers and their ranks.  Former Sergeant Troy Chenier said, however, that nothing in the Township's ordinances recognized the "rank of corporal" and that the position was created in the Township's contract with the police union to allow senior patrolmen to receive stipends for performing supervisory duties in the absence of a sergeant or other superior officer.

Chenier claimed that he was entitled to be re-promoted if a sergeant's position opened up.  But, unfortunately for Chenier, he "was formally charged with certain misconduct violations."  According to Chenier's lawsuit, the charges caused him to suffer "demotion from the 'rank of corporal'"--presumably busting him down to patrolman.  He insisted, however, that the the disciplinary penalties did not cause him to lose his right to be promoted to sergeant when that position opened up. Chenier claimed that during the disciplinary proceedings, Township officials assured him that he was not disqualified.

When a sergeant's position was later created, Chenier sought it.  But, Police Chief Richard J. Meder told him that he "would not be automatically promoting you to the rank of Sergeant based upon your previous demotion."

The lawsuit argues that "the demotion from Corporal did not impliedly disqualify [Chenier] from his re-employment rights" and that "if the present promotional process proceeds and is not subjected to immediate judicial review, then another person other than the plaintiff will obtain a vested property interest in the title that the Plaintiff seeks which may prevent the Plaintiff from obtaining the relief that he seeks."

Saturday, November 28, 2015

Open letter to Director of the Office of Attorney Ethics.

November 29, 2015

Charles Centinaro, Director
Office of Attorney Ethics
via e-mail only to Charles.Centinaro@judiciary.state.nj.us

Dear Director Centinaro:

I want to share with you (and the public) my experience being a complainant in an attorney ethics grievance bearing docket numbers IIA-2015-0010E and IIA-2015-0011E.  I have redacted the attorneys' names from all of the documents at the links below and have published this letter to you on my Random notes on NJ government blog.

I hope that you will agree with me that my experience would lead many in the general public to believe that New Jersey's attorney disciplinary system is less than user-friendly.

1. I filed my ethics grievance on February 5, 2013 against two attorneys from a very well known and prominent law firm in Essex County.

2. On March 1, 2013, Deputy Statewide Coordinator William B. Ziff transferred my grievance to the District VI Ethics Committee because "a conflict of interest would exist were this matter to be considered by the VA Ethics Committee."

3. On February 4, 2014, after not having received any further correspondence, I wrote to Jack Jay Wind, Secretary of the District VI Ethics Committee, to follow up.

4. By August 9, 2015, I still had not heard from Mr. Wind.  I reached out to the Chair and Vice Chair of the District VI Ethics Committee in hopes that they would be more responsive than Mr. Wind.

5. The next day, Mr. Wind faxed me his August 10, 2015 letter.  In it, he acknowledged that even though Mr. Ziff had provided him with my grievance with his March 1, 2013 letter, he had "no record of having received the original documentation" and suggested that "obviously somehow it was lost in transmission."

6. By letter of August 12, 2015, Mr. Wind determined that the District VI committee was conflicted because a member of the Committee is employed by the same law firm as the two attorney against whom my grievance was filed.  So, the matter went back to Mr. Ziff.

7. On August 19, 2015, Mr. Ziff reassigned the matter to the District IIA Ethics Committee.

8. In a November 13, 2015 letter,  Nina C. Remson, Secretary of the District IIA Ethics Committee informed me that my grievance was being "administratively dismissed" in accordance with R.1:20-3(f) because of "pending litigation."

Notably, Ms. Remson's letter does not identify the litigation that is the basis for her dismissal.  Being informed of the litigation's caption and docket number would allow me to investigate and perhaps challenge her dismissal decision.  It would also allow me to determine when the litigation concludes so that I know when to refile my grievance.  (You will see that I faxed both you and Ms. Remson a Records Request today for the complaint or other record that will identify the litigation supporting the dismissal decision.)
Question 1: Would you be willing to issue a directive requiring all District Ethics Committee secretaries to inform the grievant of the caption and docket number of any litigation relied upon when dismissing a grievance under R.1:20-3(f)?
Also notable is Ms. Remson's mischaracterization of R.1:20-3(f).  In her letter, she states:
Please be informed that the Supreme Court of New Jersey has established a policy of not considering any grievance received from a litigant in a pending civil matter, either about the conduct of a trial attorney therein or about the underlying conduct of any attorney who is a party to the litigation, until the case is finally concluded, except in rare situations that involve clearly provable ethical violations or where the facts present a substantial threat of imminent harm to the public. 
Yet, R.1:20-3(b), in relevant part, states:
If a grievance alleges facts that, if true, would constitute unethical conduct and if those facts are substantially similar to the material allegations of pending civil or criminal litigation, the grievance shall be docketed and investigated if. in the opinion of the secretary or Director, the facts alleged clearly demonstrate provable ethical violations or if the facts alleged present a substantial threat of imminent harm to the public. 
As you can see, the Rule allows for dismissal only if the grievance's alleged facts "are substantially similar to the material allegations of pending civil or criminal litigation."  Ms. Remson appears be applying a much looser standard and dismisses grievances when the respondent attorney is a party to litigation that may be only tangentially related to facts alleged in the grievance.
Question 2: Would you be willing to issue a directive requiring all District Ethics Committee secretaries to apply the more rigorous "substantially similar to the material allegations" standard before declining or dismissing a grievance in accordance with R.1:20-3(f)?
Thank you for your attention to this matter.  I look forward to hearing from you.

Very truly yours,

John Paff

Tuesday, November 24, 2015

Hunterdon municipal judge jails and sets bail for divorce litigant in violation of statute and court rules.

Edward Romanowski, a pro se litigant in a very contentious Hunterdon County matrimonial action, has complained of mistreatment by the Holland Township Police and the Delaware Valley Municipal Court--a joint municipal court that covers Holland Township.  I've looked into his complaints and believe that they have merit.

At the center of Romanowski's complaint is his April 10, 2015 arrest while he was at the Hunterdon County Courthouse preparing to enter a Family Division courtroom for a hearing in his matrimonial case.  The arrest was effected by the Holland Township Police and arose out of Complaint-Warrant No. 1020-W-2015-000027 that charged Romanowski with harassment and making a false police report--both of which are disorderly person offenses.

There are three troubling things about the Complaint-Warrant.

1. While Romanowski's alleged offenses occurred on December 22, 2014, the Complaint-Warrant form wasn't drafted until April 8, 2015--about three and a half months after the offense--and only two days prior to Romanowski's arrest at the Courthouse.  Also, it was originally written up as a summons and was later replaced with a warrant.  If Romanowski presented a public danger sufficient to justify an arrest warrant, it seems as though the police shouldn't have waited over three months before securing the warrant.

2. As stated on the warrant, Municipal Court Judge Joseph S. Novak set Romanowski's bail at "$4,000/Full" meaning that he would need to deposit $4,000 in cash to secure his release from jail. According to the Bail Recognizance, Romanowski's surety wasn't able to raise that much cash until April 11, 2015 causing Romanowski to be held in jail overnight.  This appears to be wrong for two reasons:

a. New Jersey law, specifically N.J.S.A. 2C:6-1, limits the bail for disorderly persons offenses (Romanowski was charged with two disorderly persons offenses) to $2,500 "unless the court finds that the person presents a serious threat to the physical safety of potential evidence or of persons involved in circumstances surrounding the alleged offense or unless the court finds bail of that amount will not reasonably assure the appearance of the defendant as required.  The court may for good cause shown impose a higher  bail; the court shall specifically place on the record its reasons for imposing bail in an amount exceeding $2,500.00."

Yet, when I sent a written request to Delaware Valley Municipal Court Administrator Barbara Lingsch for Judge Novak's specific findings as to why the bail was more than $2,500, she would not respond to my request despite me calling and faxing that office for a response.  When I appealed Lingsch's refusal to respond to Vicinage 13 Trial Court Administrator Adriana M. Calderon, Calderon informed me that "the court does not have written or oral records as to the reason for the bail amount set."  Accordingly, Judge Novak violated the law by requiring Romanowski to deposit $4,000 bail without setting forth any reasons why the statutory $2,500 bail limit wasn't sufficient to protect the public's interest.

b. Court rule R.7:4-3(g) permits courts to allow a defendant to deposit ten percent of the bail instead of the full cash amount.  The ability to pay ten percent instead of the full cash bail is the default condition and "is presumed to be available to all defendants." State v. Casavina, 163 N.J.Super. 27, 31 (App.Div.1978). Further, "the burden of proving grounds for exclusion by a preponderance of the evidence rests with the State." Ibid. In this case, Judge Novak made no findings, and apparently received no argument from the prosecution, as to why Romanowski should not have been allowed to deposit 10% of the cash bail amount.

Absent specific findings, Judge Novak should have set bail at $2,500 and allowed Romanowski to be released from jail by depositing $250, i.e. ten percent, rather than the $4,000 he was required to deposit.

3.  Beyond the bail amount, there is a question as to the appropriateness of issuing a warrant, rather than a summons, against Romanowski

According to the warrant, Judge Novak considered Holland Township Patrolman Michael D. Bent's application for the warrant telephonically.  Telephone conferences are governed by R.7:2-1(e) which states:
R.7:2-1(e) Arrest Warrant by Electronic Communication. A judge may issue an arrest warrant upon sworn oral testimony of a law enforcement applicant who is not physically present. Such sworn oral testimony may be communicated by the applicant to the judge by telephone, radio, or other means of electronic communication. 
The judge shall administer the oath to the applicant. Subsequent to taking the oath, the applicant must identify himself or herself and read verbatim the Complaint-Warrant (CDR-2) and any supplemental affidavit that establishes probable cause for the issuance of an arrest warrant. If the facts necessary to establish probable cause are contained entirely on the Complaint-Warrant (CDR-2) and/or supplemental affidavit, the judge need not make a contemporaneous written or electronic recordation of the facts in support of probable cause. If the law enforcement applicant provides additional sworn oral testimony in support of probable cause, the judge shall contemporaneously record such sworn oral testimony by means of a tape-recording device or stenographic machine, if such are available; otherwise, adequate longhand notes summarizing the contents of the law enforcement applicant's testimony shall be made by the judge. This sworn testimony shall be deemed to be an affidavit or a supplemental affidavit for the purposes of issuance of an arrest warrant.
An arrest warrant may issue if the judge is satisfied that probable cause exists for issuing the warrant. Upon approval, the judge shall memorialize the date, time, defendant's name, complaint number, the basis for the probable cause determination, and any other specific terms of the authorization. That memorialization shall be either by means of a tape-recording device, stenographic machine, or by adequate longhand notes. Thereafter, the judge shall direct the applicant to print his or her name, the date and time of the warrant, followed by the phrase "By Officer _________________, per telephonic authorization by________________" on the Complaint-Warrant (CDR-2) form. Within 48 hours, the applicant shall deliver to the judge either in person or via facsimile transmission the signed Complaint-Warrant (CDR-2) and supporting affidavit. The judge shall verify the accuracy of these documents by affixing his or her signature to the Complaint-Warrant (CDR-2). 
Procedures authorizing issuance of restraining orders pursuant to N.J.S.A. 2C:35-5.7 (“Drug Offender Restraining Order Act of 1999”) and N.J.S.A. 2C:14-12 (“Nicole’s Law”) by electronic communications are governed by R. 7:4-1(c).
In accordance with this rule, if Patrolman Bent testified as to the need why a warrant--rather than a summons--was needed in Romanowski's case, Judge Novak was required to have made an oral recording or written notes "summarizing the contents of [Bent's] testimony."  Further he should have memorialized why a warrant was justified in an oral recording or written notes.  Additionally, Bent should have provided Judge Novak with another copy of the warrant and any supporting affidavit for the judge to sign to "verify the accuracy of these documents."  According to the response I received from Trial Court Administrator Calderon, however, none of these documents or audio recordings exist.

Monday, November 16, 2015

Terri Gross gets probation, forfeits public office.

In 2012, Terri Gross, a police department clerk in Salem, New Jersey, and Isaac A. Young, the head of the Salem City Housing Authority, were charged with publicly releasing confidential DYFS records in an alleged attempt to derail the mayoral campaign of Charles Washington.

Although the newspapers covered the matter well, I never did see anything written about the disposition of the charges against Gross.

Salem's response to my Open Public Records Act (OPRA) request reveals that on February 6, 2015, Superior Court Judge Timothy G. Farrell sentenced Gross to one year probation and required her to forfeit her ability to hold public office.  She was also required to pay  $280 in various assessments and to submit a DNA sample.

Monday, October 19, 2015

State fails in its bid to make retiree repay $89K in pension benefits.

Today was a end of a nightmare for William Zagorski, a 75-year old who retired in 2006 after having worked as a faculty member at both Rutgers and Union County Community College from 1972 through 1999.  In 1996, he took on an additional job at Mercer County Community College (MCCC) as an overnight classical radio announcer.  His job at MCCC was a post-retirement job that he held until 2012. New Jersey statutes allow a retired pensioner to work in another pensioned position without penalty as long as he earns less than $15,000 per year.

Zagorski's nightmare began when the Public Employees Retirement System (PERS), the state system that was paying Zagorski's pension, discovered that MCCC had failed to properly enroll Zagorski in the PERS pension system.  This discovery caused Michael A. Czyzyk, a PERS supervisor, to write Zagorski in February 2012 and demand that he reimburse PERS $89,113.68 in pension benefits and other payments that Czyzyk claimed were improperly received.

Even though Czyzyk realized "that MCCC was solely responsible for enrolling Zagorski into PERS, but failed to do so," he believed that the pension statutes imposed "'per se liability,' regardless of anyone's intentions or mistakes."

Zagorski appealed PERS' ruling and the Office of Administrative Law (OAL) judge determined that "it is simply unconscionable to lay the entire liability at the feet of [Zagorski] for the failure of the 'system' to detect, for sixteen years, that he was in a PERS-eligible position but was not enrolled."  He added that "equity and fairness in this matter dictate that [Zagorski] cannot be liable for repayment of substantial retirement benefits that were erroneously paid through no fault of [Zagorski's]." PERS, however, rejected the judge's holding and decided to hold Zagorski liable for the full amount.

The Appellate Division of the Superior Court, however, held in an October 19, 2015 opinion that the PERS' "demand for full reimbursement to be unreasonable and excessive."  The court did, however, permit PERS to make adjustments for years where MCCC paid Zagorski in excess of $15,000.

Saturday, October 3, 2015

Middlesex County Land Use Attorney reprimanded by state disciplinary authorities.

On September 28, 2015, the New Jersey Supreme Court reprimanded a Millstone Township attorney who represents land use boards in four Middlesex County municipalities and who regularly contributes to the campaigns of Democratic Party candidates.

According to his Financial Disclosure Statement, Lawrence B. Sachs serves as both Zoning Board and Planning Board attorney for the Sayreville Borough, the Zoning Board attorney for North Brunswick and Old Bridge Townships and the Planning Board attorney for East Brunswick Township.  According to Election Law Enforcement Commission reports, Sachs is a regular contributor to the Democratic Party or its candidates.  This is not unusual for professionals who are appointees to public office.

In its Order, the Supreme Court adopted the July 28, 2015 decision of its Disciplinary Review Board which found that Sachs grossly neglected his clients' real estate matter and failed to communicate with them or return their phone calls.  The Board also noted that Sachs had been previously reprimanded in 2009 for various recordkeeping rules including commingling funds in his trust account with other funds and failing to promptly deliver funds to which his clients were entitled.

The most recent matter arose out a the sale of a South River property owned by two sisters.  Since judgments constituted liens against the property, the title insurance company, Premier Title and Abstract, required that $9,350--the amount of the judgments with interest--be held in escrow before title could pass.  Sachs reportedly told the sisters that he would negotiate with the judgment creditors to get them to accept lesser amounts.

According to the Board's decision, the two judgments were settled for a total of $7,309.02 and the $2,040.98 balance was retained by Premier "as payment for resolving the . . . two judgments."  The decision states that Sachs did not advise his clients during the period of negotiation.  After the judgments were paid, Sachs claimed that he sent one of the sisters a letter to that effect but, in a June 27, 2013 letter to the Office of Attorney Ethics, the sister claimed to have not received it.  In that letter, the sister said that Sachs had told her that "he could probably settle [the judgments] for a couple thousand dollars and forward the remainder of the balance to [her] within three months."  According to the sister's January 25, 2013 letter to Sachs, she had "called [him] repeatedly over the last five years" but that he would "always reply that [he] will look into it and [she] never hears from [him] again."

According to the Board's decision:
After the judgments were paid, [Sachs] did not follow up with Premier or his clients, about the outstanding balance, until the grievance in this matter was filed. He did not inform [his clients] that Premier had retained, as its fee, the difference between the escrowed amount and the monies paid to satisfy the judgments. 

Sunday, September 13, 2015

Wall and nine other towns, six housing authorities and 3 other agencies being penalized by their insurers.

On August 30, 2015, I posted an article showing that three South Jersey townships (Fairfield Township in Cumberland County, Upper Pittsgrove Township in Salem County and Elk Township in Gloucester County) were being penalized by their insurance carrier for not conforming to the insurer's requirements related to having updated written policies governing matters such as sexual harassment, employee complaint investigations and conflicts of interest.  As described in that article, these townships' noncompliance is exposing their taxpayers to up to an extra $430,000 loss for each lawsuit for wrongful termination, sexual harassment, discrimination, invasion of privacy or similar claims.

Today, I learned that the following municipalities and other agencies are also non-compliant:
Wall Township (Monmouth)
South Amboy Borough (Middlesex)
Roosevelt Borough (Monmouth)
Spring Lake Borough (Monmouth)
Downe Township (Cumberland)
Egg Harbor Township (Atlantic)
Bass River Township (Burlington)
Florence Township (Burlington)
Wrightstown Borough (Burlington)
North Bergen Township(Hudson)
North Hudson Fire & Rescue (Hudson)
Carteret Housing Authority (Middlesex)
Morristown Housing Authority (Morris)
Neptune City Housing Authority (Monmouth)
Neptune Housing Authority (Monmouth)
Orange Housing Authority (Essex)
Summit Housing Authority (Union)
North Bergen Municipal Utilities Authority (Hudson)
Evesham Township Fire District (Burlington)
I have identified these municipalities and agencies by examining the Municipal Excess Liability Joint Insurance Fund's compliance lists and determining whether there is a "yes" or "no" in the compliance field.  In the following case, neither a "yes" nor a "no" appears in that field--rather the field is left blank.  I am looking into what this means and will report on it in a future blog article.
Update 09/28/15.  I was informed by Bradford C. Stokes, Account Executive for PERMA Risk Management Services that the agencies listed below which have neither a "yes" nor a "no" in the compliance field only have coverage for workers compensation from their respective joint insurance funds and have secured their Employment Practice Liability (EPL) coverage elsewhere. For this reason, the $20,000 or $100,000 deductibles are not applicable for these agencies.  The lack of a compliance field entry for these agencies should cause no negative inference to be drawn.
Atlantic City Housing Authority (Atlantic)
Boonton Housing Authority (Morris)
Camden Housing Authority (Camden)
Collingswood Housing Authority (Camden)
Dover Housing Authority (Morris)
East Orange Housing Authority (Essex)
Irvington Housing Authority (Essex)
Jersey City Housing Authority (Hudson)
Long Branch Housing Authority (Monmouth)
Penns Grove Housing Authority (Salem)
Perth Amboy Housing Authority (Middlesex)
Plainfield Housing Authority (Union)
Princeton Housing Authority (Mercer)
Trenton Housing Authority (Mercer)
Union City Housing Authority (Hudson)
Nutley Board of Education (Essex)
Manchester Regional High School District (Passaic)

Saturday, September 5, 2015

Hudson County has a StingRay.

According to a September 4, 2015 Reason.com article, police nationwide are using a device called a StingRay that can, by impersonating a cell tower, collect location data from virtually all cell phones within the area where the StingRay is deployed.  In a February 2013 article, the Electronic Frontier Foundation referred to StingRays as "an unconstitutional, all-you-can-eat data buffet."

After I read in an ACLU report that said that the extent of New Jersey's use of StingRay devices was "unknown," I submitted OPRA requests to two county prosecutors--Atlantic and Hudson--to test the waters.  Atlantic claims to have no StingRays while Hudson admits that it has one.

According to documents Hudson provided in response to my request, Executive Assistant Prosecutor Gennaro Rubino on April 16, 2015 sought $215,909.02 to buy a StingRay.  In his requisition paperwork, Rubino said that while "the equipment does not record the content of any transmissions," the StingRay, which is made by the Harris Corporation of Melbourne, Florida "will assist . . . in locating fugitives and similar violent offenders."  On May 14, 2015, the Hudson County Board of Chosen Freeholders unanimously approved the expenditure.

In response to my request for records showing what the StingRay is used for, Assistant Prosecutor Leonardo V. Rinaldi denied access claiming that disclosure "would materially increase the risk or consequence of potential acts of sabotage or terrorism."

Thursday, September 3, 2015

Citizen files suit to compel Zoning Officer to enforce the Zoning Code.

Updated on March 21,  2016.  Click here.

A Bridgewater Township (Somerset County) man has filed suit against the Township's zoning official seeking to compel her to enforce the Township's zoning ordinance against his neighbor.

In his lawsuit, Thomas Coulter v. Zoning Officer Marie L. Broughman, et al., Docket No. SOM-L-279-15, Coulter alleges that a property that abuts his "is littered with dead and dying trees, stumps, roots and obnoxious growths."  He claims that the presence of the dead vegetation "tends to depress the aesthetic value of the neighborhood" and constitutes "a clear violation of the [Bridgewater Township] Code."

Coulter claims to have repeatedly asked Township Zoning Officer Marie L. Broughman to enforce the Code.  According to the lawsuit, Broughman sent him a two-sentence letter on February 9, 2015 in which she said that the Code "is not intended to be applied to fallen trees resulting from a hurricane."

Broughman filed a motion to dismiss the complaint but that attempt was rebuffed by Assignment Judge Yolanda Ciccone on May 29, 2015.  The next action currently scheduled for the case is a Case Management Conference on December 8, 2015.  Coulter is represented by Robert J. Beacham of Nee Beacham in Hillsborough and Broughman is represented by Alexander G. Fisher of the Mauro, Savo, Camerino, Grant & Schalk law firm in Somerville.

Sunday, August 30, 2015

Elk, Fairfield and Upper Pittsgrove penalized by their insurer for not complying with loss prevention measures.

Upper Pittsgrove Township
Municipal Building
The Gloucester, Salem, Cumberland Counties Municipal Joint Insurance Fund (i.e. the Trico JIF) has produced a table showing that three of its thirty-six member municipalities are being penalized for being out of compliance with the JIF's rules. The report, which is dated July 6, 2015, is the most recent report available.  I called Paul Forlenza, the JIF's Deputy Executive Director to find out what that means.  Here's what I learned.
The JIF offers its municipal members different types of insurance coverage. Among them is Employment Practice Liability (EPL) insurance that covers towns sued by an employees for wrongful termination, sexual harassment, discrimination, invasion of privacy or similar claims.

EPL claims can be very costly because many of those claims are brought under statutes that allow or require employers, including municipal employers, to pay the attorney fees of successful claimants.  For example, N.J.S.A. 34:19-5(e) invites courts to make employers pay their employees's attorney fees in successful Conscientious Employee Protection Act (Whistleblower) lawsuits.

The standard deal that the JIF's municipal clients receive on their EPL coverage is a $20,000 deductible and a 20% coinsurance requirement for the first $250,000 of a claim that exceeds the deductible.  Under this plan, a municipality which suffers a $2,000,000 EPL covered loss will have to contribute $20,000 plus 20% of $250,000 for a total of $70,000 toward the $2,000,000 with insurance covering the rest.

But, non-complaint municipal members (i.e. Fairfield Township in Cumberland County, Upper Pittsgrove Township in Salem County and Elk Township in Gloucester County) are penalized with a $100,000 deductible and  20% coinsurance requirement for the next $2,000,000 of a claim. This means that a non-compliant municipality which suffers a $2,000,000 EPL claim must contribute $100,000 plus 20% of $2,000,000 for a total of $500,000 with insurance covering the rest.

Taxpayers clearly should want their town to be complaint with the JIF's rules because non-compliance could cost them up to $500,000 in deductibles and coinsurance for each major EPL lawsuit instead the the $70,000 exposure faced by compliant towns.

So, what would it take for Fairfield, Upper Pittsgrove and Elk to become complaint?  According to the JIF's rules (actually they're the rules of the Municipal Excess Liability Fund (MEL)), every two years each insured municipality must submit a checklist showing that it has adopted and updated written policies governing matters such as sexual harassment, employee complaint investigations and conflicts of interest. It also must distribute a handbook to its employees and provide training for managerial and supervisory personnel.  The MEL believes that clear, written policies and mandatory training helps towns avoid expensive EPL lawsuits.

According to Mr. Forlenza, the JIF and MEL stand ready to lower their deductibles and coinsurance requirements and to also help them with the process.  The checklist that Fairfield, Upper Pittsgrove and Elk would have to complete to be recognized as compliant is on-line here.  Many of written policies that these towns would have to adopt are set forth within the MEL's "Model Employee Handbook" or elsewhere on the MEL's website.


Saturday, August 29, 2015

Some pending (and one recently resolved) lawsuits against the City of Long Branch

As a public service, I obtained records from three pending and one recently resolved New Jersey Superior Court lawsuits against the City of Long Branch (Monmouth County):

Akintoye Laoye v. Long Branch Police Department, et al., Docket No. MON-L-274-12.

Mr. Laoye said that he was at the Headliner on Route 35 in Neptune on January 31, 2011 when Long Branch Police Officer Patrick Joyce, after "showing a badge," struck him with "hands, fists, bottles and other objects."  Trial scheduled for October 26, 2015 before Judge Katie A. Gummer.

Partner Engineering & Science v. City of Long Branch, Docket No. MON­-L-­633­-15.

Partner Engineering & Science, which acquired the assets of Birdsall Engineering Services in bankruptcy court, sued the City of Long Branch for $58,182.56 that the City allegedly owed Birdsall.

Alfred Cistaro v. City, Docket No. MON­-L­-4964­-13

Cistaro, a Long Branch police officer, brought suit against Public Safety Director Alfonse Muolo, Captain Peter Antonucci and Lieutenant John Shea.  Cistaro claims that Shea assaulted him while the pair was at the Cabana Club on Ocean Avenue responding to a report of a riot.  Shea allegedly told Cistaro "I am writing you up and I will make it stick" and "I don't care if you are the P.B.A. president."  After he reported the alleged assault
to several officials, Cistaro claimed that the City "took [him] off duty on an unpaid basis."

Brian Asarnow v. City, Docket MON­-L­-4039­-11.

Litigant's 212-paragraph complaint against the Mayor, Council and several City officials and private businesses, filed in 2011, was tried to a jury on May 19, 2015.  The verdict dismissed the complaint against the defendants who remained and taxed the court costs against Asarow.

West Deptford Municipal Court: Revenue ranked higher than due process of law.

Summons No. 0820-SC-009842, issued on May 30, 2014 by West Deptford (Gloucester County) Patrolman Steven G. Flannery, charged Daniel M. Hollywood with a violation of the Township's nuisance code.  According to the summons, Hollywood allegedly threatened to shoot Flannery during a pedestrian stop.  (Had Hollywood really threatened to shoot Flannery, one would expect that he would have been charged with a more serious crime than a nuisance code violation.  But, this is what the summons says.)

The provision of the nuisance code under which Hollywood was charged is Code Section 112-6(A)(2) which prohibits "any matter, thing, condition or act which is or may become an annoyance, or interfere with the comfort or general well-being of the inhabitants of this municipality."

Language identical to West Deptford's Code Section 112-6(A)(2) was struck down in 2003 by the Appellate Division in State v. Golin, 363 N.J. Super. 474 (App. Div. 2003).  The Appellate Division found that East Windsor's identical version of this code provision "set forth unascertainable standards that encourage arbitrary and discriminatory enforcement . . . [and is] unconstitutionally vague."

Despite having been charged with violating an unconstitutional code provision, Hollywood pled guilty.  The court accepted his guilty plea, despite the unconstitutionality of the underlying charge, and assessed a total of $139 in fines and costs.

One may wonder why, in 2014, West Deptford was still charging people with violating a code provision that was ruled unconstitutional in 2003.  I wonder this myself because I wrote to Gloucester County Prosecutor Sean Dalton on April 23, 2012--my letter was copied to West Deptford's mayor and council as well as to its judge and municipal prosecutor--asking him to make West Deptford stop enforcing Code Section 112-6(A)(2).  So everyone's on notice of the problem, but nobody in authority is willing to do anything about it.

This leaves me to conclude that the West Deptford Municipal Court simply doesn't care that it is enforcing an unconstitutional code provision.  Apparently, the court's interest in revenue exceeds its respect for due process of law.  And, that's a shame.

Thursday, August 27, 2015

Double jeopardy violation in Readington Municipal Court?

On December 2, 2013, a two-count criminal complaint numbered 1022-W-2013-000254 was issued against Brynn E. Kirby for theft (N.J.S.A. 2C:20-2b) and bad check (N.J.S.A. 2C:21-5) offenses. The charges arose out of Kirby having written a $325 dishonored check to Aurora Bianco-Gilliam for the purchase of beef.  Since the check's amount exceeded $200, the Hunterdon County Prosecutor's Office was notified but that office declined to seek an indictment causing the charges to be prosecuted as disorderly persons offenses before the Readington Municipal Court.

Kirby appeared several times before Readington Municipal Court Judge Gerard J. Shamey.  I have obtained the audio recordings of Kirby's appearances on July 24, 2014; December 11, 2014 and February 26, 2015.

  • At the July 24, 2014 hearing, Shamey accepted Kirby's guilty plea to the bad check charge, dismissed the theft charge and assessed a $150 fine, $33 court costs, $75 Safe Neighborhood Fund Assessment and $50 Violent Crime Compensation Assessment for a total of $308. However, since Kirby spent 9 days in jail after her arrest, Shamey credited her time served reducing the amount she owed to zero.
  • At the December 11, 2014 hearing, Shamey "vacated" Kirby's conviction and sentence entered at the July 24, 2014 hearing after Municipal Prosecutor Robert A. Ballard, Jr. stated that Bianco-Gilliam, who apparently had not been notified of the July 24, 2014 hearing, wished to provide the Court with a victim impact statement.  (Since December 5, 1991, the New Jersey Constitution has recognized the right of crime victims. N.J.S.A. 52:4B-36(n) affords those victims the right "to make, prior to sentencing, an in-person statement directly to the sentencing court concerning the impact of the crime.")
  • At the February 26, 2015 hearing, Kirby reappeared for sentencing.  The same fines, costs and assessments were imposed, except that this time Shamey said that the jail time served could only go toward the fine but not toward the court costs and the Safe Neighborhood Fund and Violent Crime Compensation assessments.  In addition, he sentenced Kirby, in accordance with a new plea agreement, to pay Bianco-Gilliam $361 in restitution.  As a result, Kirby was required to pay $519 (i.e. $50 VCCB, $75 SNF, $33 costs and $361 restitution) when she was required to pay zero after the July 24, 2014 hearing.

I question whether Shamey's December 11, 2014 ruling that vacated the July 24, 2014 conviction and sentencing violated Kirby's rights under the Fifth Amendment.  While a victim has a constitutionally-based right to make certain communications to a sentencing court, I don't believe that this right trumps a defendant's constitutional right to not be again exposed to punishment for the same crime for which he or she has already been convicted and sentenced.

This case is similar to the one considered by the New Jersey Supreme Court in State v. Means, 191 N.J. 610 (2007. In Means, the defendant had accepted a plea agreement but prior to sentencing the trial court granted the State's motion to vacate the plea agreement because the victims had not been consulted about the plea.  The defendant later entered into a less advantageous plea agreement and was sentenced in accordance with that agreement.  The Supreme Court, after stating that "the trial court should consider the concerns of the victim or the victim's family, but the court may not impinge on a defendant's constitutional rights," reinstated the defendant's original plea agreement.

In Means, the trial court vacated the plea prior to sentencing. In Kirby, Judge Shamey vacated the plea (as well as the conviction and sentencing) months after sentencing.  Accordingly, it appears that Shamey's act was on shakier constitutional grounds than the trial court's decision in Means.

Saturday, August 22, 2015

Does the Cumberland County Democratic Committee have two chairpersons and two treasurers?

Douglas M. Long
Deputy Director
Cumberland County
Board of Chosen
Update 09/02/15: The Cumberland County Democratic Committee filed a new form with ELEC showing Doug Long as the Committee's chairman and Al Jones as its treasurer.

In response to a recent records request, I received a listing of Democratic and Republican County Committee members elected by partisan voters in accordance with N.J.S.A. 19:5-3. This list shows the following officers of the Democratic Committee: Douglas Long, Chairman; Nancy Sungenis, Vice Chair; Al Jones, Treasurer and Kathy Austino, Secretary. These four officers were presumably elected at the Committee's annual meeting held on June 9, 2015, i.e. the first Tuesday after the June 2, 2015 primary election as required, subject to certain exceptions, by the same statute and Article II, Section 2 of the Committee's bylaws.

The Cumberland County Democratic Committee is, according to the New Jersey Election Law Enforcement Commission (ELEC), a Political Party Committee. As such, it is required by N.J.A.C. 19:25-4.6(a) to "designate on or before July 1 in each year an organizational treasurer and an organizational depository."  The Committee's chairperson and treasurer are required by N.J.A.C. 19:25-4.6(d) to certify "as true and correct" the depository's designation.  The requirements of N.J.A.C. 19:25-4.6 are satisfied by the filing a "Form D-3" with ELEC.

The Cumberland County Democratic Committee, using the name "Cumberland County Democratic Organization," has recently filed two "Form D-3" reports, one on April 6, 2015 and the other on August 13, 2015.  Both filings list the Committee's chairperson as Matthew Zinader and its treasurer as Kelly Redman.  Thus, the chairperson and treasurer reported to ELEC differ from the chairperson and treasurer selected by the Committee at its annual meeting.

A question arises as to whether the Cumberland County Democratic Committee has both a "formal" chairperson and treasurer, i.e. those who are elected by the County Committee at it annual organizational meeting as well as an "administrative" chairperson and treasurer who are "designated" by the Committee to prepare and certify ELEC filings.  If so, then a second question arises as to whether ELEC's regulations require the actual, elected party officers to sign off on ELEC's filings or whether those regulations are broad enough to allow "stand-ins" to execute these functions.

It seems to me that the interpretation most consistent with ELEC's mission is to require the actual, elected party officials to sign and certify to ELEC filings.  Many of the filings, such as the "Form-D3," subject the signatories to "punishment," presumably under Chapter 28 of New Jersey's Criminal Code, if willfully false statements are made. Accurate reporting would be encouraged by subjecting the actual officials elected by the County Committee (in this case, Cumberland County Freeholder Deputy Director Douglas Long is the elected Committee Chair) to punishment for an untruthful filing rather than an administrative designee (in this case, Kelly Redman, who certified to ELEC filings as the Committee's treasurer appears to be employed by Deputy Director Long's Woodbury law office of Long Marmero & Associates, LLP as a "scheduling coordinator").

While I haven't checked to see if Political Party Committees in other counties similarly use "stand in" officers to sign off on ELEC filings, I do note that the officers listed on the Cumberland County Republican Committee's ELEC filings match those on the report that I received from the County.

Friday, August 21, 2015

Cumberland County Democrat and Republican Committee Members on-line.

On-line here is a list of the Democrats and Republicans who serve on the Cumberland County's Committees for terms running from 2015-2019 for the Democrats and 2014-2018 for the Republicans.  I am not aware of this information being on-line anywhere else.

Tuesday, August 18, 2015

EEOC seeks records to show that Long Branch discriminated against African-American police lieutenant.

On July 30, 2015, United States Magistrate Judge Tonianne J. Bongiovanni ordered the City of Long Branch (Monmouth County) to turn over to the Equal Employment Opportunity Commission (EEOC) disciplinary files of Police Lieutenant Lyndon B. Johnson, who is African-American, as well similar files on six Caucasian officers.  The EEOC alleges that Johnson was "subjected to different and harsher disciplinary measures than similarly situated white colleagues who committed the same or similar alleged infractions."  The EEOC claims that it needs the files to determine whether Johnson was in fact treated more harshly because of his race. (While the nature of the conduct that resulted in Johnson's disciplined is undisclosed, the minutes of the Civil Service Commission's November 20, 2013 meeting indicates that he was suspended without pay on December 12, 2012.)

The City claimed that it never resisted disclosure of the disciplinary files.  Rather, it wanted the EEOC to assure the City that it would not let Johnson see the six Caucasian officers' files.  Magistrate Judge Bongiovanni, who expressed that she was "perplexed by the EEOC’s failure to recognize the officers’ privacy interests and its refusal to simply agree to" the City's confidential requests, ordered disclosure of the files to the EEOC but also required the EEOC to prevent Johnson from seeing the other six officers' files.

On August 15, 2015, the EEOC appealed Bongiovanni's ruling, claiming that it should be able to disclose information in the six Caucasian officers' files to Johnson or his attorney.

Woman who claims to have stood up to Long Branch "bully" will get her day in court.

August 28, 2015 Update:
I have placed on-line both the "official memo" and Acerra's reply memo, both of which are referenced in her lawsuit.  I also have uploaded CFO Ronald J. Mehlhorn's most recent contract with the City

Monmouth County Superior Court Judge Thomas F. Scully has scheduled a "Peremptory Trial" in the Conscientious Employee Protection Act (CEPA) or "whistleblower" case of Acerra v. City of Long Branch for September 14, 2015, 9 a.m. in Courtroom 218W in the Monmouth County Courthouse in Freehold. ("Peremptory" means that the trial will proceed on that date without any further opportunity for postponement.  The lawsuit, filed on April 11, 2011, has been pending for a long time and has been listed for trial three times in 2015--on January 26th, March 2nd and May 11th--and each trial was adjourned for various reasons.)

Plaintiff Julie Juliano Acerra's lawsuit has its roots in a November 23, 2003 New York Times article entitled "ON THE JOB; Foiling the Office Bully (With Sand in Your Face)." In that article, Acerra, the former Principal Personnel Clerk for the City of Long Branch (Monmouth County), said that after having "enduring threats, foul language, ridicule and unfounded criticism" for five years from Chief Financial Officer Ron Mehlhorn, Sr. and others, "the bullies backed off" after she and her union documented the bullying and caused an internal investigation.

Unfortunately for Acerra, the respite was short-lived.  According to her lawsuit, the New York Times piece, along with Acerra's cooperation with law enforcement regarding an "Operation Bid Rig" investigation, sparked further hostility and retaliation against her.  Her lawsuit made various claims ranging from being followed while driving her car to having files taken from her office.

In 2007, Acerra said that she questioned Melhorn's receipt of what she approximated to be over $200,000 for cashing out over 400 accrued sick days and subsequently learned that Melhorn's office never deducted the 400 sick days from his account despite the pay out.  This caused Acerra, who "felt a serious crime had taken place" to contact law enforcement officials.  She claimed that she was later advised by the Monmouth County Prosecutor's Office that the matter was under investigation.

Acerra claimed she was fired on February 4, 2011 and that the firing was mischaracterized as a lay-off for "reasons of economy and efficiency.  She said she was replaced by a younger person.

Acerra is being represented in her lawsuit by Richard J. Shaklee of McLaughlin Stauffer & Shaklee, PC in Wall and the City's lawyer is Mitchell B. Jacobs of Cleary Giacobbe Alfieri & Jacobs,LLC in Matawan.

In November 2013, Long Branch offered Acerra $75,001 "exclusive of fees and costs" to settle her lawsuit. That offer was not accepted.

Wednesday, August 5, 2015

Court dismisses Cumberland corrections officers' challenge to new disciplinary policy.

On June 1, 2015, the Policemen's Benevolent Association Local 231, which is the labor union for non-supervisory Cumberland County corrections officers, sued the County and County Jail Warden Robert M. Balicki for requiring corrections officers to serve suspensions while the disciplinary cases underlying those suspensions were still under appeal.

At issue in the lawsuit, captioned PBA Local 231 v. County of Cumberland, Docket No. CUM-L-372-15 and filed by Marlton lawyer Stuart J. Altermann, are eight letters Balicki sent on May 11, 2015 advising the officer who received them that "the Cumberland County Department of Corrections has decided to execute the suspension days currently under appeal."  The letters, which are attached to Altermann's court filing, identify the officers who received them, disclose the suspension terms imposed and, in some cases, disclose the nature of the alleged underlying conduct:

  • Victor Bermudez; 10 days
  • Janitqua Days; 1 day; lateness
  • Anthony Bermudez; 5 days; simple assault
  • Richard Cotto; 10 days; balance from "major discipline settlement agreement."
  • George Bailey; 30 days; see details below.
  • Jason Corley; 1 day "per pay for ten pays"; settlement agreement.
  • Justin Cimino; 6 days, harassment
  • (Victor Bermudez appears to have received two identical letters.) 

Also attached as an exhibit to Altermann's filing was a May 11, 2015 Unfair Practice Charge he filed with the Public Employment Relations Commission (PERC) on behalf of Officer George Bailey.  The PERC charge revealed that Bailey had been disciplined for using his cell phone while in secured area of the jail.

According to the Superior Court's on-line civil access database, Judge Richard J. Geiger dismissed the case on July 30, 2015.  The database also shows that a Case Management Conference was held on July 30, 2015 at 1:30 p.m.  I have submitted additional requests to find out details on the resolutions of this case and will publish what I learn

Sunday, August 2, 2015

"Overdose Protection Act" does not exclude drug evidence from jail guard's disciplinary hearing.

On May 29, 2013 South Jersey Times writer Spencer Kent reported on a Cumberland County correction officer's May 15, 2013 arrest for drug possession after Vineland police found him "in a hotel room with a hypodermic needle and a crack pipe."  Curious as to what ultimately happened to the corrections officer, I went to the Cumberland County Courthouse last week to examine the case file of a lawsuit that the officer filed.

In the file, I found an August 4, 2014 written decision by Superior Court Judge Richard J. Geiger.  According to the decision, the corrections officer, William Burgess, "overdosed after he injected heroin into his arm."  His girlfriend--presumably Amber E. Watson, the woman mentioned in Kent's article--called 9-1-1 for help.  Emergency responders administered Narcon (naloxone) and revived Burgess.

Although Burgess was arrested and was granted a conditional discharge in Vineland Municipal Court, he was later able to vacate the conditional discharge because of New Jersey Overdose Protection Act.  According to a July 2, 2013 New Jersey Attorney General press release, the Act protects "those who, in good faith, seek medical assistance for an overdose victim . . . from arrest and prosecution on a charge of use or simple possession of illegal drugs [and this] immunity also applies to the person suffering the overdose."

In his lawsuit, Burgess sought to stop Cumberland County's Department of Corrections from firing him because of the drug use underlying his arrest.  According to Geiger's decision, Cumberland did fire Burgess and Burgess appealed his termination to the Civil Service Commission.  In his suit, he asked Judge Geiger to rule that the Overdose Protection Act protected him not only from criminal sanctions but also from being fired.  Judge Geiger ruled against Burgess. He held that had the legislature intended to protect drug overdosers from being fired, it would have said so in the law.

Judge Geiger's decision also disclosed that Burgess, after having had his conditional discharge vacated, filed a petition to expunge the whole matter from his criminal record.  Burgess' expungement petition was denied by Superior Court Judge Robert G. Malestein because "the subject matter of the records of the arrest was the object of litigation or judicial proceedings, namely plaintiffs disciplinary appeal pending before the Office of Administrative Law."  Because the denial was "without prejudice" Burgess may renew his expungement petition after his termination appeal becomes final.

(I have submitted OPRA requests for any updates to the actions cited above and will update this blog entry upon receipt.)

Friday, July 24, 2015

Former Millville Detective claims that Prosecutor Webb-McRae punished him for seeking to wiretap her former clients.

Jennifer Webb-McRae
Cumberland County Prosecutor
When Millville Police Detective Jeremy Miller filed his Conscientious Employee Protection Act (CEPA or "Whistleblower) lawsuit against the City of Millville (Cumberland County) in January 2014, it received wide coverage in the South Jersey Times, the Asbury Park Press, the Press of Atlantic City and other news outlets.  The allegations against Cumberland County Prosecutor Jennifer Webb-McRae that Miller made in December 2014 amended lawsuit, however, have not been reported by the media.

In his original lawsuit, Miller alleged that the Millville PD was so dysfunctional that officers would close criminal cases without investigating them and that Lt. Edward Zadroga, the MPD's the main villain, retaliated against Miller when he wouldn't join Zadroga's quest to undermine and eventually overthrow Chief Thomas Haas.  (Readers who want more detail on the suit's allegations are invited to read the three newspaper articles above and/or Judge Richard J. Geiger's June 13, 2014 decision on Millville's motion to dismiss the lawsuit.)

In his amended complaint, Miller claimed that the publicity surrounding the filing of his original suit caused Webb-McRae's office to conduct its own internal affairs investigation into his lawsuit's allegations.  While the investigation was pending, Miller, who investigating a double-homicide, said he requested Webb-McRae's office's permission to conduct a wiretap on certain people who Miller suspected of being involved in the homicide.  Miller claimed that as a result of that request, he was "abruptly and without notice of explanation pulled from his duties as a detective with the Millville Police Department and assigned to patrol duty, night shift, weekend duty."  Miller asserted that his reassignment was punishment for "bad press" Webb-McRae received after Miller's lawsuit was filed and because she had, in private practice, represented some of the people that Miller wanted to wire-tap.

Other items bearing some relevance to this matter:
  • Lt. Zadroga was among the officers sued by a fellow police officer who claimed that Zadroga and the others harassed him because of his sexual orientation.  That lawsuit resulted in a $415,000 settlement reached in May of 2009.
  • In December 2014, Zadroga received $100,000 to settle his CEPA lawsuit that claimed he was punished for reporting alleged ticket-fixing in the Millville Police Department.
  • On April 19, 2015, Zadroga was arrested for drunk driving but remains "officer in charge" of the Millville Police Department.

Thursday, July 23, 2015

Alpine school district sends special needs student to live-in school in Virginia.

On July 13, 2015, I blogged about the Alpine (Bergen County) school district's confidential settlement in which it agreed to pay 73.77% of the $108,449 annual cost of sending a special needs student to an out-of-district school.  In response to a subsequent Open Public Records Act (OPRA) request in which I challenged the district's decision to redact the name of the child's new school, the district provided me with a more narrowly redacted agreement that disclosed that new school is the Little Keswick School in Keswick, Virginia, where the student apparently resides in a dormitory.

The settlement agreement was unanimously approved by the Alpine Board of Education at its October 2, 2014 meeting.  The resolution passed by the Board (shown below) is somewhat vague and does not disclose the cost to the district.
D01364 Moved by Mr. Roura, seconded by Mrs. Kurtz BE IT RESOLVED by the Alpine Board of Education ("the Board") that the terms, stipulations and conditions as established in the Settlement Agreement and Release between the Board and the Parents of a student whose name is on file in the Superintendent's office, which is annexed to this Resolution, are hereby adopted and approved by the Board. The Board President and Superintendent are hereby authorized and directed to execute the Settlement Agreement and Release, and any other documents necessary to effectuate the settlement.
Background: This is a new placement for an existing out of district student. (student #3184213983)  Via Voice: 5 Ayes 0 Nays

Suit alleges Millville police officer pulled gun on dirt bike riding 13 year-old.

In a lawsuit filed on January 12, 2015, a thirteen year old boy, identified only by the initials C.F., claimed that Millville (Cumberland County) Police Officer Michael Thompson pointed "a gun directly at him" for about 30 seconds after Thompson stopped the boy for riding a motorized dirt bike in a wooded area near Magnolia Avenue on September 27, 2014.  The boy and his parent, identified as D.F., claimed that the officer's decision to pull a gun was unwarranted "because  of the lack of severity of the crime at issue, because [the boy] did not pose an immediate threat to the safety of the police officer or others, and because [the boy] was not actively resisting arrest or attempting to evade arrest by flight."  According to the lawsuit, filed by Mount Laurel attorney Kevin M. Costello, the officer's decision to deploy his weapon amounted to excessive force and violated the boy's rights under both the federal and state constitutions.

After learning about this lawsuit, I filed an Open Public Records Act (OPRA) request for the police report, use of force report and other documents related to the event.  The police report that I received gives no indication of a gun being used by Officer Thompson.  Rather, the report depicts a rather benign event where the boy was allowed to walk his dirt bike home after Thompson verified that it wasn't stolen.

Letter to Millville City Commission

July 23, 2015

Hon. Michael Santiago, Mayor and members of the
Millville City Commission
via e-mail

RE: An Ordinance Amending Chapter 46, §§ 63 and 64 of Article XIII (Employee Complaint Policy)

Dear Mayor Santiago and Commissioners:

I understand that the captioned ordinance, which was scheduled for final reading and passage on July 21st, was postponed for further discussion and consideration.  I have reviewed both the original ordinance and the previously proposed amendments and would like to offer my comments.

A critical flaw, in my view, is contained in both the present and previously proposed amendment to § 46-63(b).  That provision requires the City Administrator to advise "the Commissioner in charge of the department where the complainant is employed" upon receipt of a complaint and calls for that Commissioner to choose the person who will investigate the complaint.

The flaw becomes apparent when one considers the following hypothetical: Suppose that an employee in the Department of Public Works files a complaint against Commissioner Ennis. In accordance with § 46-63(b), the City Administrator would advise Ennis--the Commissioner in charge of Public Works--of the complaint's filing and presumably of the complainant's identity.  And, according to § 46-63(b), Ennis would be allowed to choose the person who will investigate his own alleged wrongdoing.

First, if the City believes, as I do, that employees who encounter wrongdoing by their department's Commissioner should be encouraged to report it, § 46-63(b) is counterproductive because it guarantees that that Commissioner will immediately be informed of the complaint and the identify of the complainant.  I believe that complaints--at least against City Commissioners--would be more forthcoming if the complainant's identity--at least in the initial stages--was not disclosed to the Commissioner that oversees the complainant's department.

Second, it seems completely wrong to me for a Commissioner against whom a complaint has been filed to have any role in choosing the complaint's investigator.

Beyond these, there are other provisions in both the original code and the proposed amendment that don't make a great deal of sense.

For example, § 46-63(a) establishes a mandatory reporting procedure when wrongdoing is discovered by an employee.  ("An employee who believes that he or she has been subjected to or is aware of wrongdoing in the workplace shall submit a complaint to the City Administrator within 20 days from the date of the alleged incident.")  Yet, § 46-61 seems to make this optional and allows employees to "make a verbal complaint at their discretion."

There is no procedure in place regarding how verbal complaints are processed and adjudicated.  If an employee's verbal complaints to his or her immediate supervisor about a hostile work environment are ignored, those complaints will likely form the basis of a civil lawsuit against the City.  Better, in my view, would be to require all complaints to submitted in writing and go through a formal complaint process.  A prompt, impartial and meaningful internal process might satisfy the complainant and obviate costly lawsuits.

As another example, one of the proposed additions to § 46-64 states:
In the event, however, the complaint contains allegations of harassment or any other wrongdoing against a Commissioner, then the Board of Commissioners shall discuss the conclusions  contained in the investigator’s report with the City Attorney and render a final decision within 14 days after the receipt of the report.
I think that it would better to explicitly exclude the Commissioner who is under investigation from the discussions and decision-making process.

Thank you for your attention to this matter.

Very truly yours,

John Paff

Update: 07/24/15: Another, more recent amendment to the ordinance has been drafted.  It is somewhat better but still suffers from the same flaws noted above.

Sunday, July 19, 2015

Former Continuing Education Director files "whistleblower" lawsuit against Cumberland County College.

On February 12, 2015, Cumberland County College's former Director of Continuing Education filed a suit claiming that she was fired because she made legitimate complaints against her supervisors.

In her lawsuit, Nancy Pollard said that she had made several complaints to the College's upper management including that her supervisor made changes to the College's Certified Medical Assistant program that allowed unqualified students pass the class.  She also claimed that her supervisor improperly listed students in a graduation program in order of their GPA rankings and demanded that Pollard do work while she was on approved medical leave.

Pollard is being represented by Richard M. Pescatore of Vineland.  The College, which denied all of Pollard's allegations, is being represented by Wendy D. Testa and Karen M. Gottlieb of Philadelphia.

Monday, July 13, 2015

Brick Ethics Committee deflects complaint for technical reasons.

Those who use the services of the Brick Township (Ocean County) Ethics Information Committee must be very careful when completing the "What is your requested remedy for this complaint" section of the Committee's complaint form.  The Committee apparently cares more about a complaint's technical niceties than it does its substance.  If one asks the Committee to "investigate" rather than "review" a complaint, he or she will probably get a rejection letter from the Township Attorney.

On June 15, 2015, I filed my complaint with the Committee because five members of the Township's Tourism Development Committee, which is granted the "exclusive authority to disburse all of the revenues allocated to the Tourist Development Fund," failed to file Financial Disclosure Statements in 2014 and 2015.  This is clearly a violation of the Local Government Ethics Law.  While I could have filed directly with the Local Finance Board in Trenton, I opted to invoke the Brick Committee's process, which is set forth in the Township Code..

In response to the Ethics Committee's question of my "requested remedy" for the complained of matters, I stated: "Investigate whether there is any valid excuse for the failure to file. and if none is found. file a complaint against those named with the Local Finance Board."

In his June 25, 2015 rejection letter, Township Attorney Kevin N. Starkey set me straight on the inadequacies of my complaint.  First, Starkey informed me that the "Brick Township Ethics Information Committee does not conduct investigations, nor does it file complaints with the Local Finance Board."  Rather, the Committee "reviews" complaints and then "forwards" them to the Local Finance Board in appropriate situations.  Due to my complaint's inadequacies, Starkey informed me that my complaint "will not be forwarded to the Local Finance Board" because it "does not seek a valid action by the Ethics Information Committee."

Starkey's letter does not mention anything about the substance of my complaint, i.e. whether Brick's Ethics Committee will do anything to enforce the Local Government Ethics Law against the Tourism Development Committee who have failed to file their Financial Disclosure Statements.  I checked the Local Finance Board's website today and those Committee members still have not filed.

Friday, July 3, 2015

More info on Medford Township Manager's 2014 separation from employment.

On August 23, 2014, I blogged some information that I then had about the reasons underlying Christopher Schultz's abrupt resignation from his position as Medford Township (Burlington County) Manager.  Since then, I have obtained another version of the Council's July 22, 2014 executive session minutes that shed some more light on what had occurred.

Interestingly, I now have three versions of the July 22, 2014 executive minutes, which I have placed on line here.  The first version is heavily redacted.  The second version, which is more narrowly redacted than the second, was the basis of my August 23, 2014 blog post.  The last version (pages 7 - 9 of the PDF at the above link) has the fewest redactions.  I chanced upon the last version, which is marked "draft," by submitting an Open Public Record Act (OPRA) request for OPRA requests filed by another citizen.

The newly available version indicates that there was a "relationship" that was found to "consensual and there being no coercion."  After discussion, the Council heard Township Labor Attorney Robert Merryman "explain discipline regarding the Township Manager under the Faulkner Act."  After discussing its disciplinary options, the Council "agreed on termination, but would give Mr. Schultz the opportunity to resign."  A copy of the confidential Separation Agreement between Schultz and the Township is on-line here.

After his separation from Medford, Schultz was hired as the business administrator and clerk of the Borough of Pine Hill (Camden County).  Prior to working for Medford, Schultz served as Township Manager for Moorestown (Burlington County).  He resigned from Moorestown in May of 2011.

Tuesday, June 16, 2015

LFB Ethics Complaint Roster in Excel format.

In December 2014, the Local Finance Board, which handles the vast majority of Local Government Ethics Law complaints filed against local and county public officials, sent me an Excel version of its roster of closed ethics complaints.  This is the first time I have received the complaint roster in Excel format--previous lists were printed out from an Excel file and then scanned.  Having the roster in Excel is useful because the public can now sort and filter the list which could not be done with the the scanned versions previously offered.

The Excel version is on-line here.  I have just submitted another request for an Excel file of the present version of the complaint roster and I'll update this blog entry to include the new roster upon receipt.  By comparing the two version, one can determine which ethics files were resolved between the dates of the two versions (i.e. during the first six months of 2015) and then, through a separate OPRA request, one can get copies of the newly closed matters and find out if they resulted in a dismissal or a violation.

Five Dismissed ethics complaints on-line

The Local Finance Board (LFB) dismissed ethics complaints against the following public officials.  All of the dismissal notices are on-line here.  Although they are somewhat dated, I decided to put them on-line because the LFB does not provide the public with any on-line information about any of its complaints and I have long believed that the disposition of ethics cases are of public interest regardless of whether they result in a violation or a dismissal.  Following is some information about each complaint in the PDF at the above link.  Details about the nature of the ethics charge is in the body of the dismissal letters.
Englewood Cliffs (Bergen)
Lauren Eastwood v. Joseph Parisi and Joseph Favaro
Complaint No. 13-057
Complaint received December 15,2013
Dismissal letter dated March 24, 2014

Gloucester County
John Alice v. Vincent Nestore and Larry Wallace
Complaint No. 11-054
Complaint received July 28, 2011
Dismissal letter dated April 16, 2014

Haddon Heights (Camden)
Scott Alexander v. Edward Forte, Jr.
Complaint No. 13-056
Complaint received November 8, 2013
Dismissal letter dated March 12, 2014

Elizabeth (Union)
Libera Paolucci v. J. Christian Bollwage, No. 13-052
Complaint No. 13-052
Complaint received November 7, 2013
Dismissal letter dated March 12, 2014

Hoboken (Hudson)
Theresa Castellano, Beth Mason, Michael Russo and Tim Occhiptinti v. Dawn Zimmer and Ravi Bhalla
Complaint No. 13-001
Complaint received November 15, 2013
Dismissal letter dated April 4, 2014