Monday, June 27, 2016

Lawyer alleged that Perth Amboy Officer Salazar fabricated the presence of a knife in defendant's hand and that Municipal Court Judge Herman refused to allow two videos into evidence that would have proven the fabrication.

The size of the $850,000 settlement of Edwin Rodriguez's lawsuit against the City of Perth Amboy (Middlesex County) prompted an Open Public Records Act (OPRA) request to the Middlesex County Prosecutor's office for the certifications and briefs filed in Rodriguez's appeal of his May 29, 2014 conviction by Municipal Court Judge Edward H. Herman. 
 I have placed on line:

The following facts are mostly undisputed.  On September 5, 2013, Officer Davis Salazar was dispatched to Rodriguez's home at 188 State Street to investigate a complaint of mini-bikes riding on the street.  188 State Street is a two-family home owned by Rodriguez's family who lives in the second floor unit and rents out the first floor unit.  Salazar who claimed that Rodriguez "was acting a little squirrely" demanded to see his identification.  Rodriguez apparently did not want to converse with Salazar but said that he would go upstairs to get his identification.  Salazar followed Rodriguez to the house where Rodriguez entered a doorway to a vestibule that served both the downstairs and upstairs unit.  Rodriguez attempted to close the door but Salazar had placed his foot in the threshold which prevented the door from closing.

The parties hotly dispute what happened next.  Salazar said that he observed a knife in Rodriguez's hand "as he was walking up the stairs" (apparently away from Salazar) which he "perceived to be a threat to his personal safety."  Salazar claimed that he told Rodriguez that he was under arrest and simultaneously "took [Rodriguez] to the floor."  Rodriguez, however, said that the knife was a fabrication and that both he and downstairs neighbor Orlando Gomez videoed the encounter and that the recordings proved that there was no knife.

Judge Hermann did not permit either video to be entered into evidence even though Rodriguez's attorney, Brian Schiller, claimed that they "would vindicate [Rodriguez] of all charges and clearly set forth Salazar's fabricated police report."  The videos, however, are likely still in the Police Department's or Prosecutor's possession and would likely be subject to disclosure if an OPRA request were to be filed that requested them.

Herman convicted Rodriguez of two disorderly persons charges that were later reversed on appeal.  Rodriguez said that the force of Salazar's take-down resulted in him having a broken right clavicle.  He claimed that after the take-down, Salazar sprayed him with OC spray and dragged him out on to the front porch by his ankles.

Schiller made other allegations regarding Herman's fairness including a comment Herman allegedly made about not wanting to leave the City "vulnerable to [Rodriguez's] civil suit and his alleged, improper urging of Rodriquez to take the prosecutor's plea bargain.

Wednesday, June 15, 2016

Court filings allege that male corrections officers sexually assaulted female inmates. Items were taken from a woman who was allegedly forced to beg and do pushups to get them back.

Two lawsuits allege sexual abuse of female inmates by two male corrections officers at the Edna Mahon Correctional Facility for Woman in Union Township, Hunterdon County.

One lawsuit, presently under appeal, was filed in federal court in 2012 by inmate Christine Bernat. Bernat's suit alleged that Senior Corrections Officer Erick Melgar "sexually assaulted" her by "groping her, pinching her nipples, kissing her, having her position herself in a sexual way, having her perform oral sex, and having her engage in unprotected intercourse."  He also allegedly threw ice at her and hit her with a ruler. 

Bernat also claimed that Melgar was assisted by fellow Corrections Officer Janette Bennett who acted as a look-out when Melgar was in an inmate's cell.  According to Bernat's summary judgment opposition brief, Bennett "would laugh when assisting Melgar and would comment 'this is great, we get paid for this.'"

Bernat said that Edna Mahon Administrator William Hauck and other officials knew that Melgar was having sexual contact with female inmates prior to Bernat's 2009 arrival at the facility but failed to take preventative action.  Hauck vehemently denied this and claimed that the first he knew of any alleged sexual assaults was when he was notified by a staff psychologist.  He said that upon notification he immediately reassigned Melgar to another unit and began termination proceedings that ultimately resulted in Melgar's and Bennett's firing.

After Melgar was reassigned, Sergeant Jeffrey S. Ellis allegedly transmitted Melgar's messages to Bernat and Bennett allegedly convinced other inmates to make positive statements about Melgar in order to interfere with an investigation into Melgar's alleged conduct

Bernat claimed that her reporting of the incidents caused prison officials, including Sergeant Lance Johnson, to retaliate against her.  She alleged that Johnson told her that she would have to "take Officer Melgar's [censored word] out of her mouth" if she wanted the harassment to stop.

Also during Melgar's reassignment, Senior Corrections Officer Alfred E. Smalls allegedly "sexually assaulted" Bernat by kissing her and grabbing her breasts in a private bathroom reserved for correction officers.  Smalls then allegedly bribed Bernat "with prison perks and contraband." 

Document filed with Bernat's lawsuit include a July 2013 Appellate Division decision that upheld Smalls' December 30, 2010 termination from Edna Mahan. According to the decision, the main witness against Smalls was a female inmate identified only by her initials "C.B."  C.B. said that she kissed Smalls in an "officer's bathroom . . . where Smalls grabbed her breast."  She said that there were four incidents where the pair kissed and that she "made a joke out of" smelling like Smalls' cologne after one of the kissing incidents.  She said that Smalls gave her tobacco products that she sold to other inmates.

Smalls denied C.B.'s allegations and pointed to "a prior false allegations" that C.B. had made,  but Administrative Law Judge Laura Sanders found it "to have little probative weight."  Ultimately, Judge Sanders found C.B.'s credibility to be greater than Small's and recommended his removal.  The Civil Service Commission, over Small's objections, agreed and terminated Small's employment.

Bernat's lawsuit was dismissed on summary judgment on April 20, 2016 and she appealed the dismissal on May 19, 2016 and the matter is presently pending in the Third Circuit Court of Appeals.   

In a second lawsuit, pending in Hunterdon County Superior Court, Inmates Therese Afdahl, Tasha Canada, Barbara Clark, Michelle Ellis, Joann Satorious and Robin Streater claimed that Melgar sexually abused them.  For example, Streater claimed that Melgar "slammed her up against the closet and desk area and came close behind her and began rubbing his erect penis on her buttocks."  Streater also claimed that Melgar would ransack her cell, steal food items she purchased and made her beg and do pushups to get them back.  It was Streater who advised the staff psychologist of the alleged abuse who passed that information on to Hauck.

The State has filed a motion for summary judgment that will be heard on June 24, 2016 by Judge Michael F. O'Neill, sitting in Flemington, and a trial is scheduled for August 1, 2016 if the matter survives summary judgment.

Monday, June 13, 2016

Long and Marmero look to "Discipline by Consent" to resolve ethics complaint.

Douglas M. Long
In a September 3, 2014 article, I wrote about an attorney ethics complaint having been filed against then Cumberland County Freeholder (and now Cumberland County Democratic Party Committee Chairman) Douglas M. Long and his law partner Albert K. Marmero that claimed that law firm trust account funds were being "regularly invaded and utilized as a 'line of credit' to fund the firm's operating expenses."  In a subsequent article, I called out Long and Marmero for suggesting in filed documents that the firm's bookkeeper, without Long's or Marmero's knowledge, reached out to Long's brother for a $10,000 cash loan to keep the firm's accounts from being overdrawn.

Today, I was informed by Office of Attorney Ethics (OAE) Director Charles Centinaro that Long and Marmero are looking to throw in the towel.  In a June 13, 2016 e-mail, Centinaro wrote that "[a] Motion for Discipline by Consent has been filed with the Disciplinary Review Board in [Long's and Marmero's] Docket Nos. XIV-2012-0300E and XIV-2012-0301E.  However, the DRB has not yet approved the motion.  Therefore, as you now know, the Motion for Discipline by Consent is not yet available for public inspection."

According to OAE rules, Discipline by Consent is "a procedure whereby a respondent may agree with an investigator, presenter or ethics counsel to admit facts constituting unethical conduct and recommend specific discipline or a range of specific discipline, subject to review by the Disciplinary Review Board." 

Unfortunately, Centinaro's interpretation of the rules, with which I disagree, is that the motion under consideration, which would tell us the quantum of discipline that Long and Marmero agreed to accept, is confidential.  If the motion is granted, however, the terms of the consent and the discipline imposed will be subject to public disclosure.

Ridgewood Mayor and Manager accused of violating Local Government Ethics Law for appearing in video that exhorts a "yes" vote on parking deck referendum.

"The public funds entrusted to the [Village government] belong equally to the proponents and opponents of the proposition, and the use of the funds to finance not the presentation of facts merely but also arguments to persuade the voters that only one side has merit, gives the dissenters just cause for complain."

Justice William J. Brennan, 1953

Following is a complaint filed with the New Jersey Libertarian Party's Open Government Advocacy Project with the Local Finance Board--the agency that enforces the Local Government Ethics Law.

-------------------------

June 13, 2016

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

Dear Ms. McNamara:

We intend this e-mail to be our complaint against Paul Aronsohn, Mayor, and Roberta Sonenfeld, Manager, of the Village of Ridgewood (Bergen County).

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

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

N.J.S.A. 40A:9-22.5(c), which prohibits a local government officers from "us[ing" or attempting to use his official position to secure unwarranted privileges or advantages for himself or others."

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

New Jersey Libertarian Party's Open Government Advocacy Project, John Paff (Project Chairman), Paul Aronsohn, (Ridgewood Mayor) and Roberta Sonenfeld (Ridgewood Manager).

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

Mayor Aronsohn and Manager Sonenfeld appear in a video that exhorts citizens to vote "yes" on a June 21, 2016 referendum question which will, if passed, cause the issuance of $11,500,000 in bonds or notes to finance the cost of constructing a new parking deck.

Notwithstanding Mayor Aronsohn's statement in the video that its purpose is to educate and inform the public about this issue, the video goes well beyond providing neutral facts.  Rather, the video is clearly an advocacy piece intended to persuade Village residents to vote "yes" on the proposal. For example Mayor Aronsohn made the following statements at the noted times in the video:

  • 00:20 "This is an opportunity for us to come out again as a community to show our support for our parking deck, something that most of us believe that we desperately need here in Ridgewood."
  • 01:43 "The reason we really need a parking deck is three-fold" followed by: a) "a real quality of life imperative," b) anger over a lack of parking creates a "real public safety concern" and c) lack of parking imperils the "survival of our downtown."
  • 3:20 "For [the three reasons stated above] we really need a parking deck."
  • 10:37 "There's going to be one question on the ballot that day: 'Do you support this parking deck' and I hope you vote 'yes' because it's so important for our community."
Village Manager Roberta Sonenfeld also stated at 01:35 that "As the Village Manager, I realize it's a parking crisis.  Yes, a crisis.  A crisis which will get worse if we do nothing about it."

In Citizens to Protect Pub. Funds v. Board of Educ. of Parsippany-Troy Hills, 13 N.J. 172 (1953), then New Jersey Supreme Court Justice William J. Brennan, Jr. (who later became a Justice of the United State Supreme Court) ruled that school boards could use public funds to educate the voters on ballot initiatives provided that they didn't cross the line into advocating for or against the measure.  

The same principle applies in this case.  While Mayor Aronsohn and Manager Sonenfeld may certainly inform and educate voters on the pros and cons of the parking deck proposal, they are not allowed to use public resources (e.g. the Village website) to persuade voters.  Government officials' use of public resources to persuade voters is unfair because referendum opponents do not have access to those resources and have to use private resources to distribute their message.

We assert that Mayor Aronsohn and Manager Sonenfeld violated N.J.S.A. 40A:9-22.5(c), because they used or attempted to use their official positions to create and appear in a video which is intended to secure an electoral advantage for proponents of the public question and impose an electoral disadvantage upon the proposal's opponents.

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

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

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

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

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

Sincerely,

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