Update: Friday Court Date Looms For Township Garbage Contract

You may have seen this article in Tuesday's Asbury Park Press: Middletown: Republic Services sues township over $21.7M trash deal. It's about the lawsuit that Republic Services has going against Middletown concerning the new garbage contract that was give to Central Jersey Waste and Recycling.

The basis of the case revolves around the  alleged violations of the Local Public Contracts Law (LPCL) and the Open Public Meetings Act (OPMA). I read through the complaint  - which is conveniently posted at the bottom of the APP's article - and here is a short summary of some interesting facts:

The matter involves the lucrative town-wide garbage collection contract that takes effect on January 1st. The township was sued by Republic, who lost the contract award to Central Jersey Waste and Recycling. The bids were close. Republic is claiming that Central Jersey's bid was materially deficient, lacked a proper insurance certificate and bin warranty documentation and that discussion of the contract and bids occurred improperly in closed session both before and after bids were received.

Republic claims that early township committee discussions, prior to issuing the bid specifications, did not constitute contract negotiations and did not qualify for closed session discussion. These early discussions, Republic claims, instead concerned a policy decision to dissolve the garbage district and move toward town-wide pickup. Republic also claims that the mere selection of a low bid in line with the LPCL does not constitute a negotiation.

Central Jersey's lack of warranty documentation for carts, or more specifically, proof that the township would be covered by a 10-year warranty, is pertinent because the carts have value and would become the property of the township after the 5-year collection contract expires.

Another interesting issue is that the township's RFB (Request for Bids) sought bids for several service options, like solid waste collection only, solid waste and recycling, etc. The complaint notes that Republic's bid for one option was at least a million dollars lower than Central Jersey's. For the service option chosen by the township, Republic's bid was just $20K per year (about a dollar per year per household) more than Central Jersey's.

 An interesting question is whether Republic's bid for the service option NOT chosen would have benefited residents,  that is, does that bid reflect a savings over the current cost for those services? In general, the whole matter raises questions about how the township arrived at its decision.

The two sides are due in court tomorrow, Friday, December 1st.

Hopefully, this case will be rectified soon before it costs the Middletown taxpayers more than if it would have just awarded the contract to Republic in the first place.  Talking to a couple of lawyer friends, this case has probably already cost taxpayers over $50K  and could easily skyrocket.

*****************

11/30/17 - 7:30pm

The case hearing is now tentatively scheduled for Wed, Dec. 13 at 1:30 PM. It seems that  Dec.1st is the date for returning documents to the court.  

Lawrence Twp. Council and Board of Ed. charged with OPMA & OPRA violations

For immediate release
October 5, 2016


Lawrence Township Board of Education and Municipal Council have both been taken to court for allegedly running afoul of the state's open public meetings and records laws.

Filed this September in Mercer County Superior Court as separate actions (docket numbers MER-L-1831-16 and MER-L-1832-16, respectively), the lawsuits are the latest two brought by the New Jersey Foundation for Open Government (NJFOG) to improve governmental compliance with the Open Public Meetings Act (OPMA) and Open Public Records Act (OPRA).

The initial hearing in both cases is scheduled for November 29, 2016, at 10:00 AM and 11:00 AM, respectively, before Judge Mary C. Jacobson in Trenton. The hearings will address OPRA counts, with OPMA counts heard at a later date.

NJFOG began to file lawsuits against public agencies in 2014 for what the organization views as significant violations of the OPMA and OPRA laws. The two new cases follow NJFOG's successful OPMA/OPRA lawsuit against the Trenton Board of Education in Mercer County in 2015 and will be heard by the same judge who presided over the Trenton case.

"We are following up now by reviewing other Mercer County agencies in the wake of the Trenton School Board decision, which should have put other offices in the county on alert," said NJFOG president John Schmidt.

Both Lawrence Township entities were sent warning letters two years ago explaining the deficiencies, but NJFOG’s more recent review of their practices showed ongoing non-compliance with the OPMA and OPRA statutes.

"Ideally, public bodies would self-correct their own behavior when they learn that a neighboring town has been taken to court. That's the ripple effect we're looking for," added John Paff, NJFOG treasurer as well as chairman of the organization's Affirmative Litigation Committee.

NJFOG is represented by attorney Anthony H. Ogozalek, Jr. of Cinnaminson.

###


The New Jersey Foundation for Open Government (NJFOG) is the only non-profit organization in the state dedicated solely to improving public access to governmental records and meetings. We work to educate the public about the Open Public Records Act and Open Public Meetings Act as well as increase governmental compliance, transparency, and accountability.

Free NJFOG OPRA/OPMA Forum in Perth Amboy on September 20 !

Join NJFOG the evening of September 20, 2016 for a discussion of the state’s open public records and meetings laws. This event is being provided at no cost to attendees with thanks to our sponsor, The Amboy Guardian.

(NJFOG handbook)

Come learn about the laws that provide public access to government records and meetings and that allow citizens greater insight into the operations of state and local governments in New Jersey.

This is a rare opportunity to meet and talk with acclaimed open government advocate John Paff, who will be speaking along with attorney Walter Luers.

The night of the event is also a great time to join NJFOG to get a free gift with membership, while supplies last.

The forum is open to everyone, so please help us spread the word, and feel free to bring your questions on September 20. Handouts and light refreshments will be provided.


For more information click here.

NJFOG: Spotswood BOE meeting minutes don’t make the grade

PRESS RELEASE
For immediate release
September 1, 2016


An initial hearing will be held on September 28 in New Brunswick before Middlesex County Assignment Judge Travis L. Francis for a lawsuit alleging that the Spotswood Board of Education has violated the Open Public Meetings Act (OPMA) and Open Public Records Act (OPRA).

The complaint (docket no. MID-L-4615-16) was filed jointly this August by non-profit organization the New Jersey Foundation for Open Government (NJFOG) and Heather Grieco, who is a member of the organization.

The case is the first lawsuit brought by NJFOG in Middlesex County as part of its statewide affirmative litigation initiative to increase OPMA and OPRA compliance by public agencies. Meetings Act compliance, in particular, is sorely lacking in the state. A favorable ruling in the case would help to strengthen enforcement throughout Middlesex County.

The suit follows a July 7 OPRA request by Grieco for the minutes of the Spotswood School Board’s eight most recent nonpublic meetings (executive or closed sessions), the resolutions that authorized them, and fifty-seven sets of minutes for public meetings (open session) held in the last few years.

Public bodies in the state are required to keep minutes of their official proceedings, both those open and closed to the public, and must have a written resolution setting forth the specific valid reasons for entering closed session.

The meeting minutes that were provided in response to Grieco’s request fall well short of the “reasonably comprehensible” standard required by the Meetings Act, NJFOG claims.

The lawsuit points out that most of the closed door meetings held from August 2015 through this April lasted thirty minutes to an hour or more, while the minutes for those sessions state only that "the Board discussed legal issues" or "the Board discussed goals" or "the Board discussed personnel issues" or that the Board accepted the Superintendent's recommendations without stating what they are.

There is no mention of the parties to any contract or legal matter, specifics that should be disclosed in the executive session resolution, according to NJFOG. “Without that information, a member of the public wanting to know more about a specific matter wouldn’t know what records to request,” said attorney Walter Luers, who serves as NJFOG vice president.

Further, the minutes don’t list the time and place of the meeting or the members present, as the Meetings Act requires.

NJFOG also alleges that the Board either did not advertise its meetings in two newspapers or failed to accurately convey in the minutes the manner in which notice was given. Both are OPMA requirements.

“Their minutes are some of the worst I’ve seen,” said John Paff, who is NJFOG treasurer as well as chairman of the organization’s Affirmative Litigation Committee.

More than two years ago, in January 2014, Paff himself contacted the Spotswood School Board regarding some of these same inadequacies, and the Board’s attorney assured him that the Board would endeavor to be compliant with the law.

In response to Grieco’s July 7 OPRA request for the meeting minutes, the School Board’s Business Administrator directed her to the Board’s website.

All of the requested nonpublic meeting resolutions and minutes – or, rather, what the Board is calling minutes – were there, but they offer almost no information at all, as already mentioned.

Missing, however, were two thirds of the public session minutes that Grieco requested. All but one were subsequently posted to the site on August 1; the remaining set was not yet provided as of the date the complaint was filed.

“While records custodians sometimes respond to an OPRA request by directing someone with internet access to a website to retrieve a record, the record needs to be there,” said NJFOG president John Schmidt.

The Open Public Records Act says that a “government record shall be readily accessible”, not eventually accessible, NJFOG argues.

“OPRA requires not only that records be provided, but that they be provided promptly,” Paff said.

The September 28 hearing is scheduled for 10:30 AM and will focus on the OPRA portion of the case.

NJFOG has brought successful lawsuits against several other public agencies, including the Little Egg Harbor Fire District #3 earlier this year and the Island Heights Board of Education in 2014. Both are in Ocean County. Additionally, NJFOG won a case against the Trenton Board of Education in Mercer County in 2015.

NJFOG is represented by attorney Anthony H. Ogozalek, Jr. of Cinnaminson.


###

The New Jersey Foundation for Open Government (NJFOG) is the only non-profit organization in the state dedicated solely to improving public access to governmental records and meetings. We work to educate the public about the Open Public Records Act and Open Public Meetings Act as well as increase governmental compliance, transparency, and accountability.

It's Sunshine Week

March 15-21 is National Sunshine Week, a yearly event that highlights the importance of open government and our “right to know” as citizens engaged in our own governance.  

Established in 2001, the New Jersey Foundation for Open Government (NJFOG) is the only organization in New Jersey dedicated solely to improving public access to government records and meetings.   NJFOG works to educate residents about the state’s Open Public Meetings Act (OPMA) and Open Public Records Act (OPRA) and also works to strengthen these laws and increase compliance.

Amendments to OPMA and OPRA now in the Legislature – bills S781/A2900 and S782/A2763, respectively – are intended to modernize and reform the existing laws.   Important reforms are proposed, including, but not limited to, stronger public notice requirements, a requirement that minutes be approved within 60 days, an increase in the minimum time allotted for public comment, application of the laws to many quasi-governmental entities that are substantially controlled by a governmental agency, and mandatory reimbursement of costs to successful plaintiffs (now only under OPRA).

There are some other New Jersey bills that will also affect “your right to know”.

S1236, sponsored by Senator Peter Barnes, addresses the need for greater transparency in police internal affairs investigations.  S1236 would establish a 2-year pilot program in Edison Township whereby the New Jersey Attorney General’s office would assume the police internal affairs function for the township.  NJFOG supports S1236 with an amendment that provides for public disclosure of the internal affairs records at the end of the 2-year pilot.  

A841 provides that, for law enforcement incident reports, the address of a person would be considered confidential.  NJFOG strongly opposes this bill for the simple reason that there is often a need by journalists, researchers and other citizens to contact persons who have been involved in a particular incident.  Redaction of address from incident reports would prevent necessary communication that may benefit the general public or the person involved.

S2181 (A3417) and S2183 (A3350) are perhaps the most well publicized pieces of legislation.  These bills provide for broad reform of the Port Authority of New York and New Jersey.  The bills passed the New Jersey legislature in 2014 with unanimous support, as did sister bills in New York.  Among other reforms, S2181 includes public meetings provisions, while access to public records is addressed by S2183, which brings the Port Authority under both New Jersey’s OPRA law and New York’s freedom of information law.  S2183 was conditionally vetoed and is awaiting amendment, while S2181 was vetoed outright.

It’s particularly noteworthy that an override vote on S2181 is scheduled by the New Jersey Senate during Sunshine Week, on March 16.

###

The New Jersey Foundation for Open Government welcomes invitations to speak throughout the state and can be reached at info@njfog.org. Those who would like to learn more can join the NJFOG Q&A Forum on Facebook and find a host of resources on the Foundation’s website, www.NJFOG.org.

Patronage is one thing. Not doing the job – and getting paid – is another

by Linda Baum

Assume you are hired to take the minutes at a meeting but you don’t show up. Should you – can you – still do the minutes? Should you be paid for it?

The Middletown Sewerage Authority thinks so. The public agency paid their recording secretary, Marie Schillberg, $150 to prepare the minutes for the March 2014 board meeting, but she wasn’t there.

The Authority doesn’t audio record its meetings, which means you have to be there to know what was said. So how did Ms. Schillberg do the minutes? Someone else who was present simply told her what the votes were and who attended. That’s it. There was no record made of the meeting discussion.

It certainly demonstrates what passes for official minutes by the agency if someone doesn’t even need to be present to do them. Noteworthy, however, is that the March minutes are no different from those for any other month. Except for the date, attendance and list of resolutions, the minutes for each meeting are substantially the same. You can find them on the public documents page at www.tomsanj.com.

Ms. Schillberg, whom research shows is the spouse of former municipal court judge Robert Schillberg, was appointed as the Authority’s recording secretary in 1999 when her husband was sitting on the bench in Middletown and the Authority’s then-director held a seat on the Township Committee. The appointment resolution (Res. 67/99) is the shortest I’ve ever seen at just 20 words, with no mention of salary, duties or term of service.

I’ve asked the Authority’s board members many times what they feel the role of the recording secretary is, but they don’t respond. They have yet to add substance to their minutes and still don’t require their recording secretary to take notes at meetings, though supposedly that’s the job she was hired to do.

Typically, Ms. Schillberg sits for the majority of each meeting with her hands folded or in her lap, pen down, as seen in the photo here. Further, her presence or absence should be part of the official record, but there is no mention of her in the minutes for any meeting.

As a public agency, the Authority is legally required (per the Open Public Meetings Act) to meet a certain standard with regard to the record keeping for its meetings, and therefore responsibility here lies with the Authority and its board. They need to take corrective action and should have done so a long time ago.

New Jersey Foundation for Open Government Files Suit Against Island Heights BoE for OPRA and OPMA Violations

For Immediate Release:
April 2, 2014

The New Jersey Foundation for Open Government (NJFOG) is alleging that the Island Heights Board of Education and its custodian of records, Lillian Brendel, violated the Open Public Records Act (OPRA) and Open Public Meetings Act (OPMA).

A hearing to address the OPRA issues is set for April 16th at 1:45 p.m. before Ocean County Superior Court Assignment Judge Vincent J. Grasso. Matters dealing with the OPMA will be dealt with at a later date. John Paff, treasurer of the organization is an additional plaintiff. The full complaint and order to show cause is available at: http://ogtf.lpcnj.org/2014/2014086PY/NJFOGvIHBOE.pdf

NJFOG is a state-wide organization which advocates for transparency in government, educates residents about their right to information under the law and files court actions to force compliance.
“Violations of OPMA , the foundational law for citizens to keep watch on their governments, occur on a daily basis and the suit is designed to force compliance by this governmental body and to send a signal to other violators that compliance is necessary and violations will be met with citizen action,” Paff, an open government activist, said.

Anthony H. Ogozalek, Jr., Esq., a partner in the Gibbsboro firm of Beckman Roth Ogozalek & Perez is the attorney of record for the Plaintiffs.

On April 22, 2012, acting Under OPRA, NJFOG and Paff filed a request for the “Minutes of the February 8, 2012, closed session of the Island Heights Board of Education and the resolution that authorized that session. According to the law the Board had 7 business days to comply. The Board responded on May 9th with information that was deemed inadequate.

Subsequent correspondence including requests for minutes and resolutions for closed sessions continued until March of 2014, when the suit was filed.

The suit alleges that;

1) Responses were not timely, which according to the law constitutes a denial;

2) Responses were redacted with insufficient explanation for the redactions;

3) Brendel has not satisfied her burden of proving that Paff is not entitled to have disclosed to him at least some of the information redacted from the Island Heights Board of Education’s 2013 and 2014 nonpublic meeting minutes.

4) The public interest in disclosure of the redacted information exceeds the government’s interest in keeping that information confidential;

5) Resolutions for the Island Heights BOE to go into closed session are not in compliance with OPMA;

6) In its closed sessions, the Island Heights Board of Education engaged in discussion of improper meeting topics which should have been discussed in public sessions. These improper discussions occurred at 14 closed sessions from February 8, 2012 through February 12, 2014. At each of these 14 sessions, the suit says the BOE violated OPMA statutes by discussing and resolving matters which should have been conducted in public session.

NJFOG and Paff are seeking the specific information requested plus an order from Judge Grasso which forces the Island Heights BOE to comply in spirit and with the letter of the Open Public Records and Open Public Meetings Acts.

“NJFOG reviewed the practices of a number of governmental bodies in various communities in New Jersey and decided that the violations we allege committed by Island Heights Board of Education are representative of violations committed often by government. We hope this suit will spur reforms,” Paff said.

“We focus on Municipal Governments and Boards of Education where some of the worst abuses of withholding information from the public occur,” said Walter Luers, an attorney who is President of NJFOG. “Government, in our view, functions best in the bright light of day and we try to help citizens shine that light on their governments,” Luers said. The Foundation has previously filed suit under OPRA against New Jersey’s Government Records Council (“GRC”) for access to the records of the very administrative agency responsible for enforcing OPRA; that lawsuit was settled with an agreement by the GRC to produce the records and pay NJFOG’s counsel fees. In 2013, the Supreme Court granted NJFOG’s motion to be recognized as amicus curiae in the Plaintiff’s Petition for Certification in Paff v. Borough of Garwood.

Foundation For Open Government Seminar March 23: Citizens’ Rights to Government Information

Citizens’ rights and obligations under New Jersey’s Open Public Records (OPRA) and Open Public Meetings Acts (OPMA) will be the subject of a seminar March 23rd at the Clementon Community Center, 165 Gibbsboro Road from 11:30 am to 5 pm.

The seminar is sponsored by the NJ Foundation for Open Government, a state-wide organization which advocates for transparency in government, educates residents in their rights and how to get information and data using the laws and files court actions to force compliance.

“We focus on Municipal Governments and Boards of Education where some of the worst abuses of withholding information from the public occur,” said Walter Luers, an attorney who is President of the Foundation. “Government, in our view, functions best in the bright light of day and we try to help citizens shine that light on their governments,” Luers said. The foundation has participated in numerous suits against governing bodies for violations of the Open Public Records act.

Two panel discussions will be held followed by audience questions. The fee of $10 on line and $15 at the door covers lunch and refreshments. The cost to students with valid student ID is $3

Hon. Samuel Cianfarini, Committeeman West Deptford Township will be recognized for his work in promoting and advocating for open government. Two Citizen Awards are to be announced.

1:15-2:30: PANEL 1. Open Public Records Act and Open Public Meetings Act from a Government Perspective. This panel will discuss OPRA and OPMA issues from a government perspective and the challenges they face. Moderator: Walter M. Luers, Esq.

Panelists:

Anthony H. Ogozalek Jr, Esq. of Beckman, Roth, Ogozalek and Perez, Gibbsboro, NJ Solicitor: West Deptford Township, Clementon Housing Authority Assoc. Counsel: Burlington County Board of Social Services Honorable Richard Direnzo, Councilman Haddon Heights Borough Ginny Murphy, Vice President Washington Township Board of Education (Gloucester County) Vice President Gloucester County School Board Association New Jersey School Board Association Board of Directors, Member

PANEL 2. Open Public Records Act and Open Public Meetings Act from a Public Perspective. This panel will discuss case law and issues facing the public in regards to OPRA and OPMA.

Panelists:

 Walter M. Luers, Esquire; John Paff, Citizen Activist; Krystal Knapp, Professional Journalist

4:00-5:00: Question and Answer about OPRA/OPMA, group discussions.

To participate in the seminar register at Njfog.org or call 908-894-5656

TOMSA Plant Tour During Public Meeting Violates the Open Public Meetings Act

by Linda Baum
Aug. 25, 2013

The most recent meeting of the Middletown Sewerage Authority (TOMSA) board was this past Monday, August 19. I’ve been attending TOMSA board meetings since November 2011 and for the second year in a row since I’ve been attending, they opened the public meeting, then all disappeared for 45 minutes on their annual plant tour that excludes the public. Both times, one person at the conference table stayed behind to babysit public attendees.

Last year I had a video camera with me and actually left it rolling for the whole meeting to emphasize the lunacy of a public board meeting absent a board. http://archive.org/details/8-9-12TOMSAMeeting During the public comments portion of that meeting, I had some things to say about the inappropriateness of scheduling a private tour during a public meeting, but the board was not inclined to change how they’d been operating for years. It didn’t seem right to me, and it turns out it’s not. It’s a violation of the Open Public Meetings Act (OPMA). You can’t have a public meeting that excludes the public.

This year, when they all got up to leave for the tour, I pointed out that they were not in compliance with the OPMA and suggested they could invite the public along or cancel the tour to be compliant. I asked if I could go with them and was told no. I wasn’t suggesting the public should be granted access to the plant, just wanted to verify that the public would be excluded from this portion of the public meeting.

The board’s attorney, Richard Leahey, said something about the Homeland Security Act superceding the OPMA. There were two other attorneys at the meeting, both board members and one a former mayor, and both said nothing. The Chairwoman, Chantal Bouw, stated that the tour was mentioned on TOMSA's website. I replied, "That doesn't make it lawful." Then off they went.

NOTICE: As part of this month's Board meeting, the Board will be attending to their annual tour of the Facility. This will be the first order of business. 

The website notice, shown above, seems to be an attempt to both justify the action and advise public attendees that they could arrive late. Still. Also note the meeting agenda doesn't mention the tour at all. If the tour is a legitimate “order of business”, why isn’t it on there?

Later, during public comments, I asked Mr. Leahey what section of the Homeland Security Act he was referring to earlier and what it stated. He said something about disallowing public access to certain areas for security reasons. I said OK, that I wasn't arguing that, but it had nothing to do with having a non-public tour during a public meeting and that the tour could be scheduled for another time. He replied that it was only once a year and not much of a public inconvenience. He meant, no doubt, that not many people were being inconvenienced since I was the only public attendee.

I’m not 100% sure what the law allows for here, but logically, compliance with one law shouldn’t give them the latitude to break another, especially if arrangements can be made to comply with both laws simply by rescheduling the tour.

It should be noted, however, that any gathering of a public body that has a quorum present and where public business is discussed, but that is not publicized or recorded or not open to the public, is a violation of the OPMA. So a plant tour that includes more than 3 members of the TOMSA board (4 is a quorum) may still run afoul of the Sunshine Law no matter when it’s held. Nor can the board simply enter into executive (non-public) session to take the tour because a tour is not one of the legal reasons for an executive session.

However TOMSA decides to handle this, they should discontinue the practice of holding the tour during a public board meeting. Imagine if you attended a Planning Board meeting and they all got up to visit a development site and left you sitting in the court room at Town Hall.

NJFOG Meeting on Wednesday, June 26th

by Linda Baum for NJFOG

It may surprise you to know that governmental entities are often less informed about the laws that govern public records disclosure and public meetings than citizen watchdogs are. Join us to learn the facts and to discuss the tools available to you for improving governmental transparency in your own town and beyond.

The New Jersey Foundation for Open Government (NJFOG) will hold its monthly meeting on June 26th at 7 p.m. on the 2nd floor of the Bound Brook Public Library, 402 E. High Street, Bound Brook, NJ 08805. All are welcome.

Come meet NJFOG’s talented president Walter Luers and well-known open government advocate John Paff and the other dedicated members of the NJFOG team.

Pending NJ legislation with respect to the Open Public Records Act (OPRA) and Open Public Meetings Act (OPMA) may be discussed. These bills, which are intended to modernize & reform existing laws, are expected to be voted on by the Senate tomorrow, Thursday, June 27.

From the NJFOG website: “The New Jersey Foundation for Open Government seeks to increase transparency, accountability, honesty and democracy in government at all levels by defending and expanding public access to government records and meetings.”

NJFOG meetings are typically held the last Wednesday of each month.

For more information, check out www.njfog.org or email info@njfog.org.
Phone: 908-894-5656

Sunshine Week: Arming citizens with the power of knowledge

By Heather Taylor

It’s Sunshine Week, that time of year we reflect on the importance of government transparency and how critical it is to our democracy. Much of the conversation during Sunshine Week focuses on the failure of government to be open and transparent. Citizens, Journalists, and Reform groups use this time to highlight how we can expand our current rights and combat government secrecy.

This attention is sorely needed, citizens across the New Jersey are often forced into countless hours in court or before the Government Records Council (GRC) just to get access to the most basic documents like budget data and meeting minutes. We have all seen or heard these stories, local governments operating behind closed doors, in the shadows.

And while we must continue to fight for strengthening the Sunshine Law and for expanded access to information, it is also important to remember why we fight for this information and what we do with it.

James Madison, whose birthday commemorates Sunshine Week, once said, “Knowledge will forever govern ignorance, and a people who mean to be their own Governors must arm themselves with the power which knowledge gives.” During Madison’s time he and his colleagues took to writing pamphlets to inform their neighbors of important issues facing our nation.

Today’s modern day pamphleteers are the bloggers and citizen journalists in city hall, covering the budget meetings and planning board hearings. We must arm these citizen journalists with the knowledge and tools to make a difference in our towns, school districts, and even the state government.

With local news bureaus shuttering, there has never been a more urgent time for citizens to step up to the plate. Go to your next local meeting and take a look around the room, how many reporters are covering the meeting? You are lucky if there is one.

Imagine what would happen if each of us followed the lead of citizens like Union County’s Tina Renna, who became a citizen journalist and reports to the public how the county’s tax dollars are being spent. Or citizens like Camden County’s Bob Shinn and John Tremble, who use public information to identify and implement best practices for cutting government waste. These three citizens alone have uncovered millions in wasteful government spending – now imagine what would happen if we each chipped and did our part.

So while we continue to expand access to government information, we must also be working to expand the pool of citizen leaders and citizen journalists like Tina, Bob and John – teaching people how to access information and use it to chart a smarter course for government.

Think back to those days, weeks, and months after Superstorm Sandy, we saw first-hand how having access to timely and relevant information is critical.

By using the Open Public Records Act, citizens can monitor how tax dollars are being spent to clean up debris. And through the Open Public Meetings Act, or Sunshine Law, citizens can sit on planning meeting to ensure that our shore towns are rebuilt with the infrastructure in place to withstand another Superstorm Sandy.

That is why we continue to educate citizens on how to constructively use the information they gather through the OPRA process. For example, on April 1, we will be training citizens how to cover news through new forms of media (thecitizenscampaign.org/new_media_post_sandy).

With access to information, citizens are able to constructively participate in the process and give feedback or offer best practices. And the more informed discussions we have, the better off our state will be.
--
Follow The Citizens Campaign on Facebook and Twitter! Visit our website TheCitizensCampaign.org for free tools and training!

Sunshine Week; A Time To Shine Light On Proposed Law That Would Roll Back Transparency

by Linda Baum
March 10, 2013

March 10th marks the start of “Sunshine Week”, so named to shed light on the importance of open government and public access to information. Its arrival is timely because amendments to the Open Public Records Act (OPRA) and Open Public Meetings Act (OPMA) are now working their way through the New Jersey legislature.

Bill S2512 (A3712) is intended to modernize and reform the OPRA law. However, one key provision will not result in reform at all and may instead dramatically curtail governmental transparency. The matter involves just one little word – changing “shall” to “may” – with respect to court award of plaintiff’s legal fees. The change would eliminate the guaranteed recovery of fees for a successful suit.

It doesn’t take a genius to figure out that the result will be far fewer challenges when governmental entities deny access to public information, even when access is denied in clear violation of the law. Not only will this reduce transparency, but it creates an incentive for fraud and abuse by government.

Even when a suit is brought, the army of publicly-funded lawyers available to governmental offices creates an unfair advantage. This emphasizes the need to empower the public by ensuring their legal costs are recoverable if they win.

Senator Loretta Weinberg is a primary sponsor of S2512. Please take a moment to call or email the Senator to urge her to keep mandatory fee-shifting in the OPRA law. Please call her at (201) 928-0100 or send her an email via website http://www.njleg.state.nj.us.

Walter Luers, president of the New Jersey Foundation for Open Government (NJFOG), penned the below letter opposing the change to the fee provision. The letter is intended for use as a draft by other organizations and members of the public in their correspondence with state legislators. Mr. Luers does a very good job explaining the issue.

*****

Honorable Loretta Weinberg
District Office
545 Cedar Lane
Teaneck, NJ 07666

Re: S2512

Dear Senator Weinberg:

I am writing to oppose any amendment of the Open Public Records Act (“OPRA’) that changes the requestor’s entitlement to an award of reasonable attorneys’ fees from “shall” to “may.” In particular, I am writing with respect to S2512.

As you know, mandatory awards of reasonable attorneys’ fees to prevailing members of the public have been in OPRA since it was first passed. Mandatory fee-shifting guarantees that there will be at least some lawyers who are willing to handle OPRA cases for members of the public and non-profit groups who do not have the resources to pay lawyers the several thousand dollars it costs to bring an OPRA case in Superior Court.

If citizens and non-profits who are denied access to public records are also denied access to lawyers, they will be effectively disenfranchised and will not be able to participate meaningfully in government.

Unfortunately, government agencies routinely deny access to public records. Municipalities deny access to settlement agreements. County prosecutors deny access to criminal files, even for closed cases. Police departments deny access to routine arrest records. State agencies deny access to records on the basis that the records requests are “overbroad,” even in cases when the records are easily identifiable. While there are always exceptions, there continues to be a strong culture against disclosure. That can only be countered with strong activism through many means, including the Court system, with the assistance of competent, diligent and experienced legal counsel.

Relative to the resources of citizens, public agencies are immensely powerful. The State of New Jersey has its own law firm – the Office of the Attorney General – to defend it in OPRA cases. All counties have in-house counsel or powerful law firms that routinely represent them. The larger cities and municipalities have lawyers who work in-house or have lawyers on retainer. Every municipality has access to lawyers who regularly advise them on legal matters, including OPRA. As you know, taxpayers pay for all of these lawyers.

Mandatory fee-shifting in OPRA is not an advantage; rather, it was intended to level the playing field. The attorneys who work for public agencies and who handle OPRA cases are guaranteed payment, regardless of outcome. If the attorneys who work for public entities are guaranteed to be paid no matter what happens in a case, then it is only fair that lawyers who handle OPRA cases against public entities should be paid a reasonable fee in every case in which they prevail.

I emphasize that attorneys’ fees must be reasonable. While fee-shifting itself is mandatory, Courts and judges already have broad discretion to determine the amount of those fees, relative to the success achieved (among other factors).

If the fee-shifting provision in the law is changed to “may,” it will create, at best, a tremendous amount of uncertainty regarding the circumstances under which attorneys would be entitled to fees. This uncertainty will reduce the public’s access to competent lawyers.

For these reasons, I urge you to retain mandatory fee-shifting in OPRA.

Sincerely,
[NAME]