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.



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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
Freeholders
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
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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.)