Thursday, June 22, 2017

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

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

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

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

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

Dear Ms. McNamara:

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

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

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

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

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

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

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

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

FACTS:

The following facts are apparent from the video and article.

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

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

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

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

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

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

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

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

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

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

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

ANALYSIS:

N.J.S.A. 40A:9-22.5(d) states that "No local government officer or employee shall act in his official capacity in any matter where he, a member of his immediate family, or a business organization in which he has an interest, has a direct or indirect financial or personal involvement that might reasonably be expected to impair his objectivity or independence of judgment."

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

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

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

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

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

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

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

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

Sincerely,

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

Wednesday, May 24, 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, May 23, 2017

Ex-Belleville cop to appear on May 30th for shoplifting charge.

On Tuesday, May 30, 2017, a former Belleville police officer will appear before Essex County Superior Court Judge Martin G. Cronin for a "Plea Disposition Conference" regarding a summons-complaint that charged her with shoplifting a $50 bottle of tequila on December 31, 2015.

Background on this matter is on-line here.

The complaint-summons that charged Wanda I. Posada was issued on March 22, 2017, nearly fifteen months after the alleged offense.  Both the Belleville Municipal Court and the Essex County Criminal Division Manager's office, during phone calls today, said that the May 30th conference is the first scheduled event on this matter and that the matter is still active.

The public may attend this conference but should call the Criminal Division Manager's office at 973-776-9300 ext 56575 the day before the conference to ensure that it has not been postponed.  Refer to State v. Posada, Complaint/Summons No. 0701-S-2017-000212.

Sunday, May 21, 2017

Ethics Committee charges Sussex County municipal prosecutor for prosecuting electric theft case while his brother was electric company's chairman.

On March 2, 2017, the District IX Ethics Committee filed a formal complaint against a municipal prosecutor in Sussex County who prosecuted a Wantage man for allegedly stealing electricity from the Sussex Rural Electric Cooperative while the Cooperative's chairman was the prosecutor's brother.  The ethics complaint alleges that the prosecutor was under a duty to disclose this relationship and that his failure to do so "is reasonably certain to mislead" the municipal court.

The complaint is against William T. Haggerty who serves as prosecutor of a joint municipal court covering Sussex Borough and Wantage and Stillwater Townships.  According to the complaint, David Zukowski of Wantage, who was on trial for allegedly stealing electricity from the Cooperative, asked Charles Tate, the Cooperative's witness, during cross-examination whether the Cooperative's Board of Directors Chairman--Jack Haggerty, Jr.--was related to Prosecutor Haggerty.  In response, Tate said that he had just become aware that day that the prosecutor and chairman were brothers. According to an excerpt from trial trial transcript set forth in the ethics complaint, Municipal Court Judge Craig U. Dana immediately declared a mistrial.

Paperwork supplied by Zukowski shows that he was ultimately found not guilty of the theft of services charge on October 7, 2013.

Zukowski had previously accused Judge Dana of being conflicted because he had previously been appointed judge by the Wantage Township Committee while the Township attorney's law firm served as the Cooperative's general counsel and because F. Parker Space, currently a member of the New Jersey Assembly, previously appointed Dana while Space served on the Cooperative's Board of Directors.  (These allegations are taken from Zukowski's November 4, 2011 letter to Presiding Municipal Court Judge Frank J. Zinna and have not been verified.)  Judge Dana ruled, however, that he was not conflicted from the matter because he was appointed as the joint court's judge by the governor and not by either the Wantage Township Committee or the Sussex County Board of Chosen Freeholders.

In his April 6, 2017 answer to the charges (available at the link in the first paragraph), Haggerty admits that his brother Jack was the chairman of the Cooperative's Board of Directors at the time of the trial but that he "did not consider [his] brother's position as Director to be relevant to the proceeding in municipal court since [he] had never spoken to him about the incident."  He also wrote that he was never "personally close" to his brother and sees him only at Thanksgiving dinner and when he "bumped into him at the grocery store in Newton."

"I regret not having contemplated that the relationship with my brother could present a concern for the Court," Haggerty wrote.  "I would urge that this was not due to any intent to mislead the Court through failure to provide material information to the Court but rather only due to my failure to appreciate that the information might be deemed as material to the proceeding before the Court."

In addition to being prosecutor, Haggerty also serves as attorney for Stillwater Township's Planning and Zoning Boards and may also serve in similar positions in other area municipalities.

The ethics matter is being presented (i.e. prosecuted) by Westfield lawyer Marcie L. Mackolin and Mr. Haggerty is representing himself.

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

Since 1995, attorney disciplinary hearings have been open to the public. Anyone who is interested in being notified in advance of any hearings on Haggerty's matter may complete and send a hearing request form to the District IX Ethics Committee Secretary Joseph M. Casello via fax to 732-751-1866.

Friday, May 19, 2017

Commercial Township sues former mayor. Claims he violated Memorandum of Understanding that resolved four harassment complaints against him..

On Monday, June 26, 2017, at 9 a.m., Cumberland County Assignment Judge Georgia M. Curio will hear argument on whether or not a temporary injunction should issue that would prevent former Commercial Township Mayor Judson Moore from violating a Memorandum of Understanding (MUA) that he entered into with the Township on May 16, 2016.  In the underlying March 29, 2017 lawsuit filed by Commercial Township Solicitor Thomas E. Seeley, the Township alleged that Moore had intentionally breached the MUA by running for public office in the Township and for causing the distribution of a letter that named the four employees who had filed harassment complaints against him. 

While the MUA expressly states that "Moore shall not seek a public office in the Township of Commercial, County of Cumberland, State of New Jersey hereinafter," it does not explicitly prevent Moore from publicly disclosing the identities of the four employees who had brought complaints against him.  Rather, the lawsuit states that "[t]he 'good faith' spirit of the agreement was to keep the victims of the harassment anonymous" and refers to a September 1, 2016 decision in Libertarians For Transparent Government v. Commercial Township, et al, Docket No. CUM-L-402-16 where Judge Curio "indicated on the record that she wanted to protect the disclosure of these employees' names."

The lawsuit does not identify the public office for which Moore allegedly filed a petition.  But, the context suggests that it was for a commissioner's seat on one of the three fire districts in the Township.  The suit alleges that Moore attended a Fire District meeting where he publicly stated that the MUA "does not hold water" and that "he, Judson Moore, can hold any position in the township that he wanted in complete defiance of his earlier signed agreement."

The lawsuit also alleges that Moore rejected the Township's attempt to use mediation to resolve the conflict thus requiring the litigation.  The suit asks Curio to, among other things, enjoin Moore from violating the anonymity of the harassment complainants and to pay the court costs and attorney fees incurred as a result of the lawsuit.  Moore has until May 26, 2017 to file and serve his opposition.

Thursday, May 18, 2017

Middlesex County lawyer in ethics hot water for allegedly threatening legal action against "lemon law" client who refused to give Ford Motor a copy of her driver license.

A Metuchen lawyer has been formally charged with violating several Rules of Professional Conduct for threatening legal action against a client who, having twice executed title documents to Ford Motor and having dropped off her "lemon" at a Ford dealership, refused to provide Ford with her driver license so that the company could get a duplicate title.  Apparently, Ford needed to get a duplicate title because the dealership either misplaced the title documents or, as the lawyer suggests, refused to turn those documents over to Ford because the client did not use her "lemon law" settlement proceeds to purchase another vehicle from the dealership.

Mark Silber, a lawyer since 1973 who maintains an office at 10 Station Place, Metuchen, took over a "lemon law" case for Lois Krupowies against Ford Motor Company and a local Ford dealership after Krupowies' former lawyer was unable to continue the case.  Silber was able to settle the case.  As part of the settlement, Krupowies returned the vehicle to the dealership and delivered the executed title and other documents to Silber.  According to the complaint, Krupowies, at Silber's request, executed additional documents "because [the dealership] had misplaced the documents" she had signed earlier. 

The trouble began when in July 2013 Silber asked Krupowies for a copy of her driver license that Silber said Ford Motor Company needed to obtain a new title to the vehicle she had turned in to the dealership six months earlier.  Krupowies refused to provide Silber with a copy of her license because, according to the complaint, Silber wasn't able to explain to her satisfaction why he or Ford Motor Company needed it.  Things turned ugly, according to the ethics complaint, when Silber, in August 2013, sent Krupowies "two threatening text message" telling her that "he was filing an Order to Show Cause seeking his legal fees and costs as well as 'a legal penalty asking for $100/day for each day' she refused to [provide a copy of her driver license]."  Despite the pressure and threats, Krupowies stood firm on her refusal to provide a copy of her license, according to the complaint.  Silber reportedly told Krupowies "that she was jeopardizing his reputation of integrity with Ford and that he needed 'to jealously protect' his reputation with Ford."

The complaint states that Silber then billed Krupowies "for his time spent as a result of her non-cooperation" and "sent monthly bills, adding interest to the amount due, through December [2013]."  Silber then threatened to sue Krupowies in January 2014 for her refusal to pay the legal bills, according to the ethics complaint.

The ethics presenter (i.e. prosecutor), Patricia M. Love of Hendricks & Hendricks, New Brunswick, said that Silber's conduct violated several Rules of Professional Conduct.  Among them: a) Silber's personal interest in "protect[ing] his reputation with Motor Company" conflicted with his duty to his client Krupowies; b) Silber should have recognized the conflict and withdrawn from representing Krupowies; c) Silver failed to protect Krupowies interests "after he effectively terminated their attorney-client relationship in his adversarial threats;" d) Silber violated ruled requiring legal fees to be reasonable by billing Krupowies for services that she didn't ask for and e) Silber's September 25, 2013 letter to Ford divulged confidential information about Krupowies without her consent. 

In his answer, Silber assigned some of the blame to the Ford dealership.  He wrote that it was unlikely that the dealership misplaced the title documents but that "it was more likely that [the dealership] wilfully refused to return the title papers to Ford."  He wrote that in his experience, it was routine for auto dealerships to "make it difficult for any customer to return a vehicle for a refund without then using the money to buy another vehicle at that dealership."  According to Silber's answer, "it is the customer's obligation to guarantee the dealer does its part to get clear vehicle title back to Ford" and that the "[d]ealer's failure to participate falls on the customer."

Silber admits that his actions may have gone too far.  He insists, however, that his actions, although "aggressive," were justified because Krupowies "obligated herself to convey good title to Ford, even if the dealer did not cooperate" and because her settlement gave her a full refund of a the purchase price (which Silber stated was $33,000) of the vehicle plus "$8,000 of shifted legal fees and costs."  Ultimately, he said, Krupowies gave Ford a copy of her license after Ford threatened to sue her.  "While my actions were aggressive, my advice proved to be correct. We were at odds over what she needed to do, and I grew angry with her," Silber wrote.

Silber also admitted that billed Krupowies for his time spent trying to get her to give a copy of her driver license but denied that the fee was unreasonable.  He wrote that if wished he had "canceled her small bill" but that he "grew angry with her and the position she took, and [he] allowed [his] anger to weigh too heavily in [his] decision making."  Silber denied divulging any confidential information to Ford stating that he provided Ford with only the "nature" of his communication with Krupowies.

Silber wrote that he was concerned that he might become personally liable to Ford because he disbursed the settlement funds to Krupowies before she had satisfied her duty to ensure that clear title documents were in Ford's hands.  When he was preparing file a motion against Krupowies, Silber wrote that "it suddenly hit me I was taking an adverse position to my client."  He wrote that after he studied the ethics complaint, he felt "more and more foolish."

Silber had a few things to say about the ethics process itself.  First, he wrote that a previous grievance had been filed against him but it was not docketed.  He said that he "believed the matter was over" and that he "did not foresee it ever coming back to life."  Second, he wrote that he later was approved for a diversion of the ethics matter but that the diversion was later rescinded.  He wrote, "I feel I've been treated unfairly, or at least without the benefit of adequate explanation."

In mitigation, Silber pointed to his unblemished ethics record and his devotion to consumer protection and pro bono work.  He recited acts of charity of buying groceries and train tickets for impoverished clients, including buying steaks for a double amputee client. He also wrote that he disarmed a gunman shooting up a bus in San Antonio, Texas and was awarded a medal for that act of heroism.  He said that even though he was chosen to receive the 2016 Pro Bono award by New Jersey Legal Services, he was "ashamed of being called to the podium to accept an award knowing that at any time my name could be published as an ethics violator."

"I grew angry and impatient with [Krupowies] which infused bad judgment, and maybe some arrogance which, when added to the mix, made me feel I was right when I was wrong," Silber wrote. "I wish I could do it over."

The ethics matter is captioned District VIII Ethics Committee v. Mark Silber, Esq., Docket No. VIII-2014-0023E.  What is written above is just a summary and the complaint and Silber's answer, which are on-line here, should be read in their entirety in order to obtain the best understanding of the case.  The ethics charges are only allegations--nothing has been proven. Silber has a right to a hearing and the burden of proof is on disciplinary officials to prove that he violated the Rules of Professional Conduct.

Since 1995, attorney disciplinary hearings have been open to the public.  Anyone who is interested in being notified in advance of any hearings on Silber's matter may complete and send a hearing request form to the District VIII Ethics Committee Secretary Barry Muller via fax to 609-896-1469.

Thursday, May 11, 2017

Attorney disciplinary officials claim lawyer practiced law two years after his law license was revoked.

A Red Bank attorney is in trouble with ethics authorities for allegedly continuing to practice law two years after his law license was revoked and after ethics authorities explicitly told him to stop.

According an April 5, 2017 ethics complaint, the Supreme Court revoked William John Bowe's law license on August 18, 2014 due to his failure to file his attorney registration statements and pay annual registration fees for 2009 through 2014. 

On May 6, 2016, the Office of Attorney Ethics was alerted to the fact that Bowe, despite the revocation order, was still practicing law when it was notified by Bank of America that Bowe's attorney trust account was overdrawn. A resulting investigation disclosed several alleged record-keeping violations pertaining to Bowe's trust account including an allegedly improper commingling of personal funds relating to Bowe's mother's estate.

According to the complaint, Bowe, despite knowing that his license was revoked, continued to do legal work for his clients and send them legal services invoices.  According to ethics authorities, Bowe deposited $7,526.29 and $19,056.16 into his attorney business account on July 29, 2016 and September 30, 2016, respectively.  Both dates are after Bowe's June 23, 2016 interview with ethics officials.

The complaint goes on to allege that Bowe, in a January 26, 2017 certification in support of his attempt to have his license restored, misled the Board of Bar Examiners.  Bowe had stated in his certification that in mid-May 2016 he "panicked from the shock of the news" that his law license was revoked and "tried to wind-down certain pending real estate matters with the intent to avoid causing the clients to experience delays or undue prejudice." The complaint alleges that Bowe's certification "deceitfully omits facts and circumstances regarding [Bowe's] unauthorized practice of law, which continued despite multiple notifications from [ethics authorities]."

The ethics charges are only allegations--nothing has been proven. Bowe has a right to a hearing and the burden of proof is on disciplinary officials to prove that he violated the Rules of Professional Conduct. Since 1995, attorney disciplinary hearings have been open to the public.  Anyone who is interested in being notified in advance of any hearings on Bowe's matter may complete and send a hearing request form to the Office of Attorney Ethics in care of Barbara Cristofaro via fax to 609-530-5238. 

Sunday, May 7, 2017

Lawsuit: Burlington municipal court clerks claim they were terminated because they criticized an incompetent judge.

Two former officials of the Burlington City (Burlington County) Municipal Court are suing City officials and the court's former judge for retaliating against them for complaining about the judge's alleged incompetence.  According to the two female plaintiffs, the judge suffered from confusion, improperly incarcerated people and made remarks from the bench such as "Don't trust the prosecutor, he's a democrat."

The plaintiffs in the two consolidated lawsuits are Elizabeth Fitzpatrick and Mary Penny who served, respectively, as the Burlington City Municipal Court's Administrator and Deputy Administrator until their employment with the court terminated in October 2013.  The two lawsuits, on-line here and here, contain similar and sometimes nearly identical allegations.  Both lawsuits allege that the trouble began when Thomas J. Scattergood was appointed as judge on August 5, 2010.  Both women said that it was clear that Scattergood could not properly discharge his duties because of "memory issues, dementia symptoms, confusion, administrative incompetence, and a lack of understanding of laws and/or procedures."  The women claimed that Scattergood improperly jailed defendants, would sometimes "create in his head events and conversations that never took place" and would handle cases where "he had a clear and admitted conflict of interest."  The women said that Scattergood began to rely on them for making judicial decisions, such as whether or not to issue a warrant or how to rule on cases.  They claimed that when Scattergood made an error, he would yell at them for not watching him closely enough. 

The women said that they complained to City Business Administrator David Ballard, Meg Boice, an Administrative Specialist with the New Jersey Administrative Office of the Courts, Burlington County Municipal Division Manager David Young and other court officials.  They both said that Boice screamed at them in February 2012 for making complaints against Scattergood and forbade them from making any more complaints.  Boice also allegedly told the women that their complaints had angered Young as well as Presiding Municipal Court Judge Bonnie Goldman and Superior Court Assignment Judge Ronald Bookbinder.

Both women said that their normally positive evaluations turned negative after they complained against Scattergood.  They claimed that Boice "manufactured" their falsely negative reviews in retaliation against them and said that disciplinary charges were brought against them for abusing breaks and overtime pay and for causing budget errors.  Fitzpatrick said that Young, Boice, Goldman and Bookbinder were "directly involved" in the disciplinary action against her while Penny said that only Young was directly involved in disciplining her.  Both woman said that Ballard "directly participated in retaliatory action against" them.

Both women said that the stress of the retaliation caused them to take sick leave in 2013.  Both said that while on leave, they were suspended and charged with disciplinary violations.  Both women said that no hearings were ever held on on the charges against them, that their employment was terminated on October 14, 2013 and they were told that they were being "laid off."

On March 8, 2016, Scattergood was reprimanded by New Jersey Supreme Court and was "permanently barred from holding future judicial office."  The Supreme Court took its action in response to a December 14, 2015, 30-page presentment filed against Scattergood by the Advisory Committee on Judicial Conduct.  The presentment, which identified Penny as one of the two grievants who initiated the case, claimed that Scattergood engaged in conflicts of interest, had an improper judicial demeanor, violated rules regarding plea bargaining and engaged in what the presentment called "ticket fixing."

Earlier this year, the City and Scattergood formally offered the two women a total of $90,000 to resolve their complaints. The Offers of Judgment, on-line here and here, offer Penny $50,000 and Fitzpatrick $40,000--the majority coming from Scattergood.  The matters are still pending, however, as the offers have apparently not been accepted. 

The Administrative Office of the Courts, Boice and Young were named as defendants but were dismissed from both cases.  The cases continue against the City, Ballard and Scattergood.

Friday, April 28, 2017

Former Pennsauken High School principal says she will sue school district for racial discrimination.

On February 2, 2017,  a former principal of Pennsauken (Camden County) High School withdrew a racial discrimination complaint she filed in 2015 with the New Jersey Division on Civil Rights (NJDCR) because she "decided to pursue this matter in the Superior Court of New Jersey."

In her NJDCR complaint, Tameka Matthews said that she was hired in 2008 as an elementary school principal and promoted to principal of Pennsauken High in August 2013.  Effective July 1, 2015, she claimed that she was "demoted . . . to a lower paying, elementary school principal position."  She said that the demotion decision was based on her being Black and female.

The school board's June 25, 2015 minutes confirm that Matthews was transferred from Pennsauken High School to Fine and Roosevelt Elementary effective July 1, 2015.  The same minutes also show her high school principal salary as $114,027.  The September 24, 2015 minutes show her elementary principal salary as $105,474.

Matthews claimed that James Chapman, the then interim superintendent, told her that he did not have to give her a reason for the demotion.  But, Matthews' complaint alleges that Chapman explained to the teacher's union president that he was an "old, white male."  The complaint says that Chapman wanted to replace Matthews with Vice Principal Rich Bonkowski who the complaint characterizes as "a less qualified, Caucasian individual."

The Board's website, as of the date of this writing, does not list Matthews as a school principal.  It does, however, show Bonkowski as the principal of the district's intermediate school.

A check of the Superior Court docket does not show that Matthews has yet filed her lawsuit.

None of Matthews' allegations have been proven.  If she does file her lawsuit, Pennsauken school officials will have an opportunity to require her to prove her allegations to a jury.

Monday, April 24, 2017

School district settles food service manager's discrimination claim by providing neutral job reference.

I've only recently learned that complaints filed with the New Jersey Division on Civil Rights (NJDCR) are public records and I'm trying to get a sense of how this process works and what type of results it yields.  For those interested in this process, I've obtained the complaint, settlement agreement and other records from the case of Shawn Rembelinsky v. the Washington Township (Gloucester County) Public Schools and have summarized them below.

Rembelinsky filed her undated NJDCR complaint in 2015.  She alleged that she was a food service manager hired by the school district in 2011 and that she advised Business Administrator Peggy Meehan of an unspecified disability in January 2015.  Meehan reportedly responded by placing Rembelinsky on a "performance improvement plan" and Rembelinsky countered by presenting Meehan with an April 30, 2015 doctor's note seeking a disability leave from May 5, 2015 through June 5, 2015. 

Rembelinsky said that she was notified on May 4, 2015 that she was being terminated effective June 30, 2015.  She claimed that she was discriminated against because the school district "could have provided her with the reasonable accommodation of holding her position during her thirty day leave, without incurring any undue hardship on its operations." 

The matter settled in February 2016.  The school district agreed "that it will only acknowledge [Rembelinsky'] date of hire, job classification, last day of work, and salary to any prospective employer. The [school district] also agrees to release only neutral references regarding [Rembelinsky's] work history with [the school district], and no mention will be made about [Rembelinsky's] eligibility for rehire to any prospective employer."  The school district gave no other concessions, such as rehiring Rembelinsky or providing her with monetary relief.

Wednesday, April 19, 2017

Cranford lawyer accused of not returning file promptly in toxic mold case and for not cooperating with ethics authorities.

A Cranford (Union County) attorney is facing ethics charges for not properly withdrawing from representation after his client discharged him and for not cooperating with ethics authorities.  The attorney has filed an answer denying most of the charges.

In District XII Ethics Committee v. Andrew J. Calcagno, Docket No. XII-2016-0043E, Scotch Plains lawyer Thomas G. Russomano, who is prosecuting the matter, said that Calcagno had agreed to file a lawsuit against his clients' landlord due to the presence of toxic mold in their apartment.  According to the ethics complaint, the clients, after not hearing anything further from Calcagno, fired him and hired a new lawyer.  The new lawyer was reportedly not able to get Calcagno to turn over the clients' file and the clients filed an ethics grievance against Calcagno on October 28, 2014.  According to Russomano, Calcagno did not respond to letters sent on October 24, 2016 and November 14, 2016 letters that asked him to contact an ethics investigator within ten days.  Calcagno ultimately turned the file over to the new lawyer on November 22, 2016, according to the complaint.

In his answer, which is also at the link above, Calcagno denied the complaint's allegation that the clients had terminated him.  He also denied receiving the new attorney's September 10, 2016 and September 28, 2016 letters and September 12 2016 e-mail.  Calcagno admitted receiving the new attorney's October 8, 2016 e-mail but said that the e-mail "constitutes an unethical and unlawful threat and is tantamount to blackmail and/or extortion."

Calcagno also admitted to not timely responding the the ethics investigator's two letters but said that he "had extenuating circumstances, including but not limited to, [his] father suffering a stroke and [his] subsequent responsibilities as his father's sole caregiver."  Calcagno also said that he had communicated with one of his clients "on a frequent basis and repeatedly informed her that [he] would not be able to proceed with her case without documented evidence that she had been exposed to toxic mold."

The ethics charges are only allegations--nothing has been proven. Calcagno has a right to a hearing and the burden of proof is on Russomano. Since 1995, attorney disciplinary hearings have been open to the public.  Anyone who is interested in being notified in advance of any hearings on this matter may complete and send a hearing request form to the District XII Ethics Committee in care of Secretary Michael Brandman via fax to 908-272-0525.

Linden lawyer defends himself against charge that he failed to file expungement petition.

A Linden (Union County) attorney facing charges for not diligently filing an expungement petition claimed that his actions were justified because his client got arrested twice after the petition's fee was negotiated and then did not pay an additional fee for extra legal work necessitated by the two arrests.

In District XII Ethics Committee v. Michael G. Brucki, Docket No. XII-2016-0027E, Union lawyer Robert J. Logan, who is prosecuting the matter, said that Brucki accepted a $600 fee in April of 2012 but failed to file an expungement petition that would have would have removed two arrests from his client's record.  According to the ethics complaint, the client first learned of Brucki's failure to file the petition after she was denied an insurance producer's license in 2016.

In his February 23, 2017 answer to the complaint, Brucki claimed that he first met the client, Kathiuska Gomez, after she was charged in 2008 with 2nd degree robbery which exposed her to both a prison term and deportation.  He claimed that after a great deal of work, he was able to get Gomez into the pretrial intervention (PTI) program provided that she had no prior convictions.  After learning from Gomez that she did have a prior shoplifting offense in West Paterson, Brucki said that he had that case reopened and the shoplifting charge dismissed, according to Brucki's filed answer.

Brucki said that he and Gomez first starting discussing expunging her record in early 2010 but Gomez did not have any money to pay his fee at that time.  Then, Brucki claimed, Gomez came to his office in September 2011 after having been arrested for shoplifting in Old Bridge.  Brucki said that he was able to get that charge dismissed.  Finally, in March and April 2012, Gomez paid the fee to have the expungement move forward but, according to Brucki, he could not file the paperwork until after he received dispositions from the Old Bridge matters.  About a month after that, Brucki claimed, Gomez came to his office in a hysterical state and told him that she had been arrested for theft in Paramus.  Again, Brucki claimed, he was able to have the Paramus case dismissed.

When Gomez again brought up the expungement petition, Brucki claimed that he told her that her subsequent arrests would require a lot more work and would require a $1,500 fee instead of the $600 she had already paid.  He said that he met with Gomez in April 2014 to start work on the new expungement petition but that Gomez did not have the money to pay the additional legal fee.  Brucki claimed that he didn't file the petition because Gomez did not pay the additional fee and that Gomez never contacted him about applying for an insurance producer's license.

The ethics charges are only allegations--nothing has been proven. Similarly, Brucki's claims regarding Gomez have not been tested or adjudicated. 

Since 1995, attorney disciplinary hearings have been open to the public.  Anyone who is interested in being notified in advance of any hearings on this matter may complete and send a hearing request form to the District XII Ethics Committee in care of Secretary Michael Brandman via fax to 908-272-0525.

Ethics complaint dismissed against lawyer who serves as Plainfield judge.

In an undated report that was likely issued within the past three months, a three-member panel of the Essex County-based District VB Ethics Committee recommended dismissal of charges against a West Orange lawyer accused of urging Newark officials to refrain from doing business with a company that the lawyer's client was suing.  According to the on-line New Jersey Lawyer Diary and Manual, the lawyer who faced these charges also serves as Plainfield Municipal Court judge.

According to the Hearing Panel Report, Patricia Weston Rivera, in her capacity of an attorney rather than a judge, represented Ruby Deschamps Hicks in a lawsuit against ethics grievant Jamilah Muhammad and her company, KIJ & A. Co.  According to the report, the object of the lawsuit was to absolve Ms. Hicks "of responsibility for charges on a credit card that" Muhammad had allegedly made at Home Depot.  During the pendency of the lawsuit, Rivera admitted that she wrote a letter to the Director of Newark's Department of Economic and Housing Development that detailed Hicks' claim against Muhammad and which urged the City to "not buy from [Muhammad] nor sell to [Muhammad] or her company as long as the litigation between" the parties continued.  Rivera also admitted to having made several phone calls to Newark seeking the same result.

Muhammad's grievance claimed that Rivera's efforts sought to "coerce an outcome not yet reached by a court" and violated several Rules of Professional Conduct, according to the report.  The ethics panel, staffed by attorneys Charles S. Lorber of Roseland, Karina D. Fuentes of the Federal Public Defender's Office and public member Bishop Jethro C. James, Jr., found that the prosecution did not bear its "burden of proving unethical conduct by clear and convincing evidence."  According to the report, "there was no evidence that any legal right of [Muhammad] was violated or that the purpose for submitting the documents to the City of Newark was other than to advance the rights of [Hicks]."

Muhammad has a right to appeal the dismissal to the Disciplinary Review Board.  It is unknown whether or not she has exercised that right.

A lawyer named Patricia Weston Rivera, who appears to be the same lawyer involved in the above-described event, was admonished by the New Jersey Supreme Court in 2008 for "violating RPC 1.15(a) (negligent misappropriation), RPC 1.5(a) (unreasonable fee), and RPC 1.15(d) and Rule 1:21-6 (recordkeeping deficiencies)."  According to a March 13, 2008 New Jersey Law Journal article, the Disciplinary Review Board recommended that Rivera be reprimanded for keeping "sloppy books" and for charging excessive fees in 18 personal injury cases.

Sunday, April 9, 2017

West Amwell fire company member, business owner sues mayor and committeeman for defamation; challenges land use denial.

On January 6, 2017, a member of West Amwell's volunteer fire company filed a defamation lawsuit against the Township's mayor and one of its Committee members for calling him a liar during a public Township Committee meeting and claiming that he "violat[ed] multiple fire codes on his property with disregard to the public [which] makes a mockery of fire safety."  On February 17, 2017, the fire company member, a contract purchaser of a Mill Road facility "used for weddings and other social assemblage purposes," filed a separate lawsuit claiming that West Amwell officials unreasonably prevented him from continuing to hold weddings and banquets at the facility after he purchased it.

The plaintiff in both lawsuits is Zachary Lubchansky.  In his defamation lawsuit against West Amwell Mayor Zachary T. Rich and Committeeman Stephen Bergenfield, Lubchansky claimed that two officials defamed him during the Township Committee's September 7, 2016 public meeting.

The minutes of that meeting reflect that Bergenfield made a motion to revoke the Township Committee's August 19, 2015 approval of Lubchansky's membership in the West Amwell Fire Company "based on not living here, lying on his application, and violating multiple fire codes on his property with disregard to the public."  Rich seconded the motion which passed unanimously. According to the meeting minutes, the Fire Company had thirty days to revoke Lubchansky’s membership and if it did not, the Fire Company's "funding is in jeopardy." 

Lubchansky said that the accusations against him are false, that no open fire code violations were pending at the time of the meeting and that the accusations have caused him both financial loss and a loss of his reputation and standing in the community.

In their answer to the complaint, Bergenfield and Rich denied most of the allegations and asserted, among other defenses, that Lubchansky "selectively quoted certain words out of context" and is a public figure who is required to show that any defamatory statements were uttered with actual malice.

In the land use matter, Lubchansky claimed that his wedding and banquet facility has historically been used for weddings and other public functions and complied with all Township zoning codes.  He claimed that prior to acquiring the property, he met with Township officials and was assured that the property could continue to be used for weddings and banquets.  But, Lubchansky claimed that "after [he] had conducted several weddings on the Property, [he was] told that the Property could not be used for weddings and other social assemblage purposes."  The lawsuit claims that Lubchansky's May 21, 2016 application for a use variance was denied on January 24, 2017 after three hearings conducted by the Township's Zoning Board of Adjustment.  Lubchansky claimed that the Board's decision "was arbitrary, capricious and unreasonable."

Lubchansky is represented in the land use matter by Arnold C. Lakind of Lawrenceville and in the defamation matter by Michael T. Hollister of Philadelphia.  Representing Rich and Bergenfield in the defamation action is Richard P. Cushing of Clinton.

Friday, March 17, 2017

Bridgeton paid $8,800 to one suspended officer, declines to identify second suspended officer.

The Bridgeton City (Cumberland County) Council's November 14, 2016 closed session minutes indicate that two police officers "have been given administrative leave."  Given the timing, one of the officers would have almost certainly been Sergeant Luis Santiago who was arrested on November 10, 2016 for fourth degree sexual contact and offensive touching.  But, the identify of the second suspended officer and the nature of the conduct underlying his or her suspension are not obvious from media reports.

In her May 17, 2017 response to an Open Public Records Act (OPRA) request for the "payroll records" of the two officers, Bridgeton Deputy Clerk Kathleen L. Keen provided a memo from Business Administrator Stephanie R. Bush-Baskette confirming that Santiago was suspended with pay on November 11, 2016 and then was suspended without pay on December 14, 2016.  The memo also disclosed that Santiago was paid $8,072.72 in wages and a $750 uniform allowance during his paid suspension.

In her March 16, 2017 e-mail, Keen wrote that "the City is unable to provide payroll information on the second officer" because it is exempt from disclosure under "N.J.S.A. 47:1A-1.1 (4)."  When interviewed today, Keen said that the investigation against the second officer was still active and that City was relying on OPRA's criminal investigatory records exemption to keep that officer's payroll record confidential.

Friday, March 3, 2017

Elizabeth Board of Education receives $300,000 confidential settlement in its legal malpractice case.

By written agreement which received its final signature on December 22, 2016, the Newark based law firm of McCarter & English agreed to pay $300,000 to settle the Elizabeth Board of Education's (Union County) legal malpractice lawsuit against the firm and one of its lawyers. 

In its malpractice lawsuit, filed on April 24, 2012, the school board claimed that firm attorney Francis A. Kirk negligently advised it to file a defamation lawsuit against "John Doe" defendants in order to find out who authored and disseminated three allegedly defamatory campaign fliers.  The fliers, which were mailed to Elizabeth voters in advance of the June 6, 2006 primary election, contained photographs of Board President Rafael Fajardo and Superintendent Pablo Muñoz and labeled them as "the army of undercover republicans."  According to a May 29, 2013 news article, the mailings also "included a forged letter, purportedly written by Muñoz, urging Fajardo to campaign hard on behalf of the city’s Hispanic candidates to help insure a low turnout of Italian residents leading up to a city council election in 2006."

Kirk allegedly advised the Board, Muñoz and Fajardo to be named as plaintiffs in the lawsuit.  The suit was later dismissed by consent after the New Jersey Department of Education ruled that the $63,621.68 the Board paid McCarter & English for representing the plaintiffs in the defamation suit was an improper expenditure of public money.  The lawsuit also claimed that Kirk was negligent in naming the Board as a plaintiff because "it has been black letter law [since 1964] that a public entity such as the Board had no standing to file a defamation action." 

A concerned taxpayer named Antonio Rivera filed a lawsuit against the Board, Muñoz and Fajardo that resulted in a court order requiring Muñoz and Fajardo to each reimburse the Board half of the legal fees expended to pursue the defamation suit.  According to the above cited news article, Muñoz's and Fajardo's appeal of the court's reimbursement order was unsuccessful.

In 2012, McCarter & English filed a third party complaint against Kirk Nelson, who acted as the school board's attorney during the time the "John Doe" lawsuit was filed.  According to that complaint, Kirk had recommended that the school board adopt a resolution authorizing the filing of the defamation suit but Nelson went against that advice causing the defamation lawsuit to be filed without formal board approval.  McCarter & English claimed that Nelson's decision to allow the suit to be filed without a board resolution was part of the reason why the court ordered Muñoz and Fajardo to reimburse the Board.

Both the lawsuit and the third party complaint were resolved by two confidential settlement agreements signed in 2016.  The settlement of the third party complaint did not require either party to pay money to the other.  Rather, it simply released each party from the other's claims.  The settlement of the main lawsuit required McCarter & English to pay $300,000 to the Board of Education.

The case is captioned Elizabeth Board of Education v. McCarter & English, et al, Union County Superior Court Docket No. UNN-L-3014-12 and the school board's attorney was Michael S. Stein of Hackensack.  Case documents are on-line here

Both settlement agreements contain a confidentiality clause, which prevents the parties to the suit from publicly disclosing the settlement terms.  Fortunately, however, these confidentiality clauses do not trump the public's right to obtain copies of settlement agreements that arise out of lawsuits in which a government agency or official is a party.

None of lawsuit's allegations have been proven or disproven in court.  The settlement agreement states that payment does not constitute an admission of wrongdoing by McCarter & English, Mr. Kirk or Mr. Nelson.  All that is known for sure is that McCarter & English or its insurer, for whatever reason, decided that it would rather pay the school board $300,000 than take the matter to trial. Perhaps McCarter & English's decision was done to save further legal expense and the costs of trying what were in fact exaggerated or meritless claims. Or, perhaps the claims were true and McCarter & English wanted to avoid being embarrassed at trial. This is the problem when cases resolve before trial--it is impossible to know the truth of what really happened.

Thursday, February 9, 2017

Somerset Prosecutor loses appeal of trial court's suppression of 21 bricks of heroin.

On February 8, 2017, a two-judge Appellate Division panel upheld a trial judge's decision to suppress 21 bricks of heroin found in man's BMW because law enforcement officers improperly obtained his consent to search the vehicle. 

According to the decision in State v. Johnny Jones, Docket No. A-0151-16T4, a confidential informant working with the Somerset County Prosecutor's Office's Organized Crime and Narcotics Task arranged in October 2015 to meet Jones in the Blue Star Shopping Center parking lot to purchase a large quantity of heroin.  When Jones arrived in his maroon BMW, he was removed from his vehicle, handcuffed and placed on the ground by hooded Task Force members with their weapons drawn.  According to law enforcement's version of events, Jones gave verbal consent to a request to search his vehicle after he was told that if he refused to give consent, "there was a possibility that a drug-detecting dog would be brought and a search warrant might be sought."

Jones, however, testified that he "shook his head back and forth indicating his refusal" of the request to search his car.  He said that after officers said they'd "get the dogs" or "call the judge this time of night. Get a search warrant . . . we'll be here all night," he decided to consent to the search to keep his girlfriend's car from being damaged by the dogs and the search.  Jones said that Task Force members did not advise him of his right to refuse consent and that he didn't sign the consent to search form until it was presented to him at the prosecutor's office.

The trial judge, Kathy C. Qasim, found in her July 28, 2016 written decision, that while police had a valid reason to stop Jones' vehicle, their decision to immediately arrest him lacked probable cause.  The judge also ruled that the decision by police to aggressively confront and arrest Jones "engendered fear" and indicated that the consent to search was "coerced."  Since Jones' consent was not voluntarily given, the trial judge suppressed the heroin that was the fruit of the search.  (Interestingly, Judge Qasim found on page 12 of her decision that Detective Senel's (presumably Detective Selim Senel's) "assertion that there was information received regarding [Jones] in possession of a gun and was dangerous, to be lacking in credibility.")

The Appellate panel affirmed the trial judge's ruling finding that the ruling was amply supported by the record.

Friday, January 27, 2017

Apparently, the two men who terrorized a woman in her Aberdeen home at 2 a.m. were drunk, off-duty cops.

On December 31, 2016, I wrote "Aberdeen confidentially paid out $15,000 to settle police invasion of privacy lawsuit" about the Township's $15,000 settlement to a local woman named Yolanda Mitter who claimed that police banged on her door and terrorized her at 2 a.m. for no reason.  Since it didn't seem plausible that police would just show up at someone's home at 2 a.m. for no reason, a subsequent Open Public Records Act (OPRA) request was filed to get police reports and other documents that would shed some light on what prompted police to visit Mitter's home.

Today, Aberdeen responded to the OPRA request and, although the documents are heavily redacted, it appears that two intoxicated men did come to Mitter's house at 2 a.m. in their own personal vehicle to menace her.  From one witness statement (presumably Mitter's), the two men were drunk and drove from a tavern to Mitter's home and banged on the door and yelled at her in order to "play a joke on" Mitter's children's' father.  According to the witness' statement, the driver of the vehicle beeped the horn, gunned the engine and said "I know he's in there" and told the witness that he wasn't leaving until she "came downstairs so he can give me what [she] wanted and what [she] needed."

This activity alarmed the witness and caused her to dial 911.  When Aberdeen police arrived in response to the 911 call, the two men were still on the property, but without talking to the witness/resident, the investigating officers and the two men left.  Later in her statement, the witness said that one of the men, who identified himself to the witness' son as a being a police officer, came to the witness' home the next day to apologize.  According to the Mitter's children's father's statement, he was childhood friends with one of the men who frightened Mitter and he described his friend as being a police officer.  He said that this officer told him that he visited the home at 2 a.m. "just to bust [his] balls" and admitted that he "was drinking." 

According to Aberdeen's response to the OPRA request, no criminal charges against anyone arose out of this incident.

Monday, January 23, 2017

Former Commercial CFO fined $300 for Financial Disclosure Statement violations. However, ethics charges against Township Committee members for hiring CFO's company to train Township employee were dismissed.

On December 14, 2016, the Local Finance Board (LFB) fined Commercial Township's (Cumberland County) former Chief Financial Officer Judson Moore a total of $300 for failing to report on his 2014 and 2015 Financial Disclosure Statements (FDS) that he owned a business that conducts training seminars for local government officials and for failing to report the addresses of local real estate he owned on his 2011 FDS.  However, the LFB dismissed a complaint against Moore and Township Committee members George Garrison, William Riggin and Fletcher Jamison for authorizing a $99 payment to Moore's business to provide training for Township Clerk Hannah Nichols.

Both complaints were filed on August 26, 2013.  Complaint No. 13-035 alleged that Moore had simply wrote on his 2011 FDS that he "own[ed] parcels of vacant land in Commercial Township" rather than listing the address, block and lot of each parcel.  This failure netted Moore a Notice of Violation and a $100 fine.  Complaint No. 13-034 alleged that Moore and the three Committee members violated the Local Government Ethics Law by hiring Moore's company, Advance Learning, LLC, to provide training to a township employee.  The LFB tagged Moore with a Notice of Violation and a $200 fine for "declaring 'None' in the field requesting the name and address of all business organizations" in which he held an interest on his 2014 and 2015 FDS filings.

In dismissing the charges that Moore, Garrison, Riggin and Jamison acted unethically by authorizing Township money to go to a company owned by the Township CFO, LFB Chair Timothy J. Cunningham wrote that paying Moore's company was "not an action that could reasonably be expected to impair [Garrison's, Riggin's and Jamison's] objectivity or independence of judgment in the exercise of [their] official duties."  Cunningham noted that Moore advertised Advance Learning, LLC's seminars to New Jersey's southern six counties and that he did not participate in authorizing the payment.

After serving as CFO, Moore became the Township's mayor until his abrupt resignation on March 12, 2016.  It is presently unknown whether he has appealed either Notice of Violation.

After a three and a half year investigation, Local Finance Board says that Commercial's and Lawrence's attempt to keep their municipal lawyer in the pension system was not unethical.

Lawrence Mayor Miletta
On December 14, 2016, the Local Finance Board (LFB) finally resolved Complaint No. 13-013, which I had filed in April 2013.  I had complained that the members of the Lawrence and Commercial Township Committees (both in Cumberland County) had in 2008 created new positions for Thomas E. Seeley, who served as Township Solicitor for both townships. I alleged that those positions were designed to keep Seeley in the state's pension system despite a 2007 law that specifically sought to exclude professional services contractors, such as municipal lawyers, architects and engineers from being in the pension system.

My complaint found support in two documents.  First was an August 23, 2010 letter written to Seeley by Hank Schwedes, Supervising Pensions and Benefits Specialist from the Division of Pensions and Benefits.  Regarding Lawrence Township's appointment of Seeley to the position of "Property Administrator," Schwedes wrote that "the Division concludes that the position of 'Property Administrator' is a position designed to disguise [Seeley's] true relationship, thereby facilitating [Seeley's] continued membership in the PERS."  Schwede's letter concluded with an administrative determination that retroactively removed the pension credits Seeley had received by virtue of the new positions created by both townships.

Second, I presented the LFB with the Commercial Township Committee's August 21, 2008 meeting minutes in which former Township Administrator Judson Moore candidly admitted that the "Property Manager" position was being awarded to Mr. Seeley in direct response to the legislation to ensure that Mr. Seeley remained enrolled in the pension system. ("Mr. Moore said part of it is due to new ordinance mandated by the state Determining Positions Eligible for the Defined Contribution Retirement Program. This is a new form of pension plan for certain municipal employees. Solicitors cannot be paid 'other expenses' and a salary, it either has to be by salary or by other expenses. What this does is take his salary and other expenses figures which were already allocated in the budget and placing it under one category, which is his salary for pension purposes.")

In its December 14, 2016 Notice of Dismissal, Local Finance Board Chairman Timothy J. Cunningham dismissed the complaint against Commercial Township Committee members George W. Garrison, Fletcher Jamison and William Riggin; Lawrence Township Committee members Thomas Sheppard, Elmer Bowman, and Joseph Miletta.  Cunningham's letter also dismissed the complaint against Moore and Seeley even though I had not named them in my complaint.

Cunningham's letter noted that the Pension Division's review had discovered that "Seeley was not entitled to to membership in the [pension system]."  Once discovered, Seeley's "service time was reset."  Cunningham's letter held that the fact that Seeley "did not in fact collect any benefits from the retirement system" precluded a finding that anyone had done anything unethical.

I have written before about Seeley and Moore.  On September 10, 2012 I wrote "Township defends its tax-challenged municipal attorney" about the Internal Revenue Service having served notices of levy seizing the money that Lawrence Township owed Mr. Seeley for his legal services in order to recover hundreds of thousands of dollars in federal tax liens docketed against him.  On September 25, 2016, I wrote "Released documents claim that former Commercial Township Mayor used racial slur against fellow Township Committee member" about documents received in response to an Open Public Records Act (OPRA) lawsuit filed against the Township to discover the real reason that Moore had abruptly resigned as Commercial Township Mayor.

Wednesday, January 18, 2017

Identity of rebuked Hunterdon County Family Part judge disclosed.

The Appellate Division's practice is to not identify, in its written opinions, trial judges whose orders are reversed.  The Division's opinions, however, frequently identify trial judges whose opinions are affirmed.  This unfortunate practice makes it difficult for members of the public to identify trial judges who have a much higher than average reversal rate.

The Appellate Division's December 30, 2016 opinion in a domestic violence case captioned T.G. v. W.C., Docket No. A-5177-14T3 is consistent with the practice. In this case, Appellate Judges Carmen Messano and Michael A. Guadagno harshly rebuked a Hunterdon County Family Court judge who entered a final restraining order (FRO) against a man identified only by his initials W.C.  The opinion criticizes the trial judge for his "troubling statements," "the haphazard manner in which the hearing was conducted" and "erroneous information" given to W.C. about how his testimony would be used.  The details regarding the judge's improper statements and conduct are set forth in the opinion at the link above.

On December 30, 2016, I submitted a records request to the Appellate Division seeking the name of the trial judge.  (Note that the judiciary is not subject to the Open Public Records Act (OPRA) and that record requests need to be submitted according to the judiciary's records access procedure.)  I was informed today by Appellate Division Deputy Clerk John Grant that the trial judge was the Hon. Bradford M. Bury.  According to a January 30, 2013 Patch article, "Watchung, Green Brook Men Nominated for Legislative Positions," Bury hails from Watchung and was appointed by Governor Christie in 2013 and will up for tenure consideration in 2020.  Bury has served as an assistant prosecutor in both Union and Morris Counties.

Monday, January 16, 2017

Board Attorney: OK for Board to hire public relations firm that worked for majority of Board members' campaigns.

The 17th page of the Elizabeth (Union County) Board of Education's May 12, 2016 meeting minutes show that the Board retained by a 6-2 vote Strategic Message Management, Inc. as a vendor at a cost not to exceed $50,000.  According to Board member Daniel Nina, the firm was hired "on as-needed basis" at "an hourly rate when we need the firm to represent the district."

After a motion was made and seconded to hire the firm, Board member Carlos Trujillo wanted the record to reflect that the firm has done "political consulting work for seven members of this Board of Education."  Trujillo asked Board Counsel Jonathan Williams of DeCotiis, Fitzpatrick & Cole to confirm that there was no conflict "for anyone voting in the affirmative for this even though [the firm] has done work on the campaigns, the political campaigns of the Board members."  Williams assured Trujillo that no such conflict existed. 

Mr. Williams undoubtedly knows far more about the School Ethics Law than me, but it seems to me that public officials ought to be prohibited from voting to award public money to businesses that do work for them individually.  The law on the subject, N.J.S.A. 18A:12-24(c), prohibits a school official from officially acting on "any matter where he, a member of his immediate family, or a business organization in which he has an interest, has a direct or indirect financial involvement that might reasonably be expected to impair his objectivity or independence of judgment."  I think that a board member's business relationship with his or her campaign consultant is at least an indirect financial involvement that the public could reasonably expect to impair the Board member's objectivity.

To see all the pages of the May 12, 2016 minutes, as well as the minutes of other Board meetings, visit the Board's website.

Sunday, January 15, 2017

Cop's "whistleblower" complaint against Washington Township scheduled for March trial.

Assemblyman Paul Moriarty
A Conscientious Employee Protection Act (CEPA) lawsuit filed in 2013 by a Washington Township (Gloucester County) police officer who himself was indicted after arresting a member of the New Jersey General Assembly for drunk driving is scheduled to be tried before Gloucester County Superior Court Judge David W. Morgan on March 13, 2017.  Defendants in the suit include Bob Smith, the Township's former administrator who also did a stint as acting mayor, and recently-retired police chief Rafael Muniz.

In his lawsuit, Joseph DiBuonaventura, who remains suspended from the police department but is seeking reinstatement in a separate court action, claims that Township officials retaliated against him for reporting unknown officers for "fixing" traffic tickets that he had issued in September 2011 to "the relative of retired WTPD Captain John Vanonni."  DiBuonaventura's lawsuit also claimed that Muniz attempted to subvert an investigation into allegations that Muniz's son Lorenzo stole more than $7,000 worth of jewelry from a resident's home.  According to media reports, the younger Muniz was ultimately entered into the Pretrial Intervention (PTI) program.

DiBuonaventura's lawsuit also claimed that he was retaliated against for having arrested former Washington Township mayor (and current member of the New Jersey General Assembly) Paul Moriarty on July 31, 2012 for drunk driving and refusing a submit to an Alcotest.  According to the court filing, in October 2012 Moriarty met with Muniz and others for assistance "in drafting and filing criminal charges against" DiBuonaventura.  With the alleged assistance of Muniz and members of his staff, Moriarty filed twenty-seven criminal charges with the Washington Township Municipal Court.  DiBuonaventura was formally served with thirteen charges on November 19, 2012 and was indicted on May 1, 2013. 

A jury acquitted DiBuonaventura on all charges on March 3, 2015 and the Prosecutor's office also dropped the drunk driving and other charges against Moriarty.  In September 2016, Moriarty received a $50,000 settlement of his civil suit against DiBuonaventura from the Tri-County Joint Insurance Fund, Washington Township's insurer.

The March 27, 2017 trial will likely be postponed because depositions are still being taken.

JIF picks up tab in Assemblyman's $50,000 settlement.

On January 12, 2017, I wrote an article about Assemblyman Paul D. Moriarty settling his lawsuit against Washington Township (Gloucester County) Patrol Officer Joseph DiBuonaventura for $50,000.  In the article, I stated that it was "unclear whether the $50,000 was paid for by DiBuonaventura, Washington Township or the Township's insurance carrier."

Yesterday, Mr. DiBuonaventura reached out to me and waived confidentiality to two September 13, 2016 letters from his attorney, Robert A. Baxter, revealing that the $50,000 was paid by the Tri-County Joint Insurance Fund which insures Washington Township.  DiBuonaventura also told me that the settlement was paid without his consent and that if he had been given an opportunity, he would have fought the settlement and required Moriarty to prove his case in court.

I don't fully understand why the Township's insurer paid the $50,000.  On March 30, 2015, the court dismissed Moriarty's case against the Township and against DiBuonaventura acting "in his official capacity."  According to an April 11, 2015 Philadelphia Inquirer article, the dismissal did not affect Moriarty's case against DiBuonaventura in his "individual capacity" and William C. Popjoy, III, Moriarty's attorney, is quoted as having said "Certainly, the federal court is recognizing our ability to go after Officer DiBuonaventura directly."

If the March 30, 2015 order ended the Township's (and thus the JIF's) responsibility to pay Moriarty, why did the JIF ultimately pay?