Brewer v. Middletown: Township Will Comply and Release Benefits Records

According to this weeks Independent, Middletown has decided to comply with Judge Lawson's ruling in the case of Brewer v. Middletown and release the names of all those who receive health benefits from the township.

Interestingly enough, Middletown's attorney Brian Nelson is somehow blaming Middletown Democrats and former Township Committee Candidate Linda Baum for the township's need to release names of those covered under its self-insured medical plan.  Also Lee Brewer, the man that filed the suit to release the names of those cover will be seeking to recover his legal expenses from the township that are associated from the case. Brian Nelson seems the think that the Township doesn't need to comply with the request however.

Here is what the Independent has to say:

Middletown Township will comply with a court order and release the names of current and former employees who received medical benefits through the township dating back to 2008, according to Township Attorney Brian Nelson.

Nelson confirmed on Monday that Middletown will not appeal an order from state Superior Court Judge Lawrence Lawson mandating that the names be provided to township resident Lee Brewer, who requested a comprehensive list of township benefits records in July.

According to court records, Brewer’s request was part of a quest to seek out “potential fraud” in the township’s health care enrollment system.


While the township provided Brewer with much of the information he requested, the names of the enrollees were redacted. Township officials said divulging that information could allow specific claims information for employees to be made public, which would violate the privacy laws mandated by the Health Insurance Portability and Accountability Act (HIPAA).

Because Middletown is self-insured, the township is a “covered entity” under HIPAA and subject to significant fines and penalties for any violations, Nelson said.

“We have given out — I can’t even count how many — dozens of documents over a period of years in relation to the township’s health benefits plan,” he said on Jan. 23. “The names have been redacted to protect those individuals and their private health information.”

Nelson said other township residents, specifically former Democratic Township Committee candidate Linda Baum, have requested and been provided with a significant amount of benefits records in recent years, only with the enrollee names redacted.

Releasing the names now could allow members of the public to piece those records together and determine claims information for specific employees, he said.

Walter Luers, the attorney who filed the suit on behalf of Brewer, said the township is simply trying to justify blocking the records, and that there is no danger of claims data being made public.

“It’s just something that they are throwing out there,” Luers said on Jan. 24. “If Middletown has released claims data that they shouldn’t have released, they should be making some sort of effort to correct it, to get it back somehow. But they’re not.”

He said the township had verbally argued about the claims data in court, but didn’t reference it in any official briefings.

“It’s like me saying the sky is purple,” Luers added. “Just saying it doesn’t make it true.” In his decision, Lawson wrote that Middletown “failed to identify any concrete example of a past disclosure which could, in conjunction with the present request, bring about such a harm.”

The township had also argued against a state “common law” right of access precedent, which found that certain insurance records must be publicly accessible.

Middletown argued that the federal “privacy rule” under HIPAA and the Employee Retirement Income Security Act (ERISA) trumps state law. Lawson, however, ruled that the township failed to identify just which HIPAA and ERISA regulations prevented the release of the employee names.

While disagreeing with Lawson’s decision, Nelson said the township would now comply with Brewer’s records request. Because the township is only releasing the names under a court order, it should be protected from any potential litigation that arises as a result of the disclosure, he added.

“The township believes that — given that there is a judge’s order — it will be protected from any type of [legal] claims,” he said.

The records would have to be released within 20 days of Lawson’s final order, but Nelson said they would likely be provided sooner.

On Jan. 24, Luers said Brewer may also seek to recoup his legal expenses from the township, to the tune of approximately $5,000.

Nelson said Brewer would not be entitled to such a reimbursement because the records in question are not protected under the state’s Open Public Records Act.

“We will fight that, and we will win that,” he said.

Middletown’s health insurance program has been a subject of scrutiny for years, as Democrats have accused the all-Republican Township Committee of intentionally obscuring the identities of its beneficiaries.

APP editorial - Brewer v. Middletown: Don't contest benefits ruling

I don't know how many of you saw this Asbury Park editorial last week concerning the Brewer v. Middletown case, in which the NJ Superior Court Judge Lawrence M. Lawson, ruled that Middletown must release employees' personal health insurance information. His ruling established that this personal info was  indeed public information and the release of it is applicably to all of Monmouth County. The APP in its editorial, urged Middletown to comply with Judge Lawson's ruling and not contest it.

When the ruling was announce three weeks ago Middletown officials still wasn't sure if they would comply with it or not, leaving open the possibility of appealing Judge Lawson's decision to a higher court.

According to an Asbury Park Press article published on the 15th, the Middletown's Township Committee intended to discussed or comply with Judge Lawson's ruling at its January 21st (moved to the 23rd) meeting. I was present for that night's meeting and nothing publicly was said about the case. I've since learned that the case was discussed during Executive Session that night.  I'm wondering if a decision was made as to whether or not they will comply or appeal and when they will announce it.

Appealing the case to a higher court would be a huge waste of time and tax dollars, they will surely lose at the appellate level also. And if Middletown loses the appeal then the appellate court decision will have application statewide, whereas  the Jan. 7 decision applies to only Monmouth County.

I believe Middletown has 30 days from the time of the ruling to comply or appeal. Time is running out.

Below is the APP editorial "Don't contest benefits ruling" for those that haven't read it as of yet:

"When taxpayers are being asked to foot the bill for the medical benefits of part-time public officials, they have a right to know who is drawing those benefits and how much they cost.

That common-sense position now has the force of law, thanks to state Superior Court Judge Lawrence M. Lawson’s recent ruling that Middletown, which provides a group health plan for its employees, must disclose the names of those who are enrolled, and the cost and type of coverage elected by each employee.

A township resident, Lee Brewer, made a request under the Open Public Records Act for the names of everyone, including employees, retirees and appointees, who received health coverage from Middletown since Jan. 1, 2008.

While Brewer got most of the information he requested, the names of the people receiving the health coverage were redacted. He sued to get the employees’ names, job titles and the coverage they selected.

Lawson’s decision should move the state one step closer to prohibiting self-insured towns from providing medical benefits to part timers.

Reforms in 2010 prohibited new part-time government employees and elected and appointed officials enrolled in the State Health Benefits Plan and State Educators Health Benefits Plan from receiving health benefits.

In Monmouth County, more than half the municipalities are not enrolled in the state plans. In Ocean County, 13 of 31 are not enrolled, and thereby exempt from the health benefits prohibition for part timers.

There may be legitimate reasons for towns, school districts and authorities to either self-insure or participate in joint plans with other towns rather than enrolling in a state health benefits plan. Hiding the identities of part timers still collecting health insurance isn’t one of them.

Middletown officials plan to discuss whether to appeal Lawson’s ruling or comply with it at the Township Committee meeting on Thursday, Township Attorney Brian Nelson said.

They should comply and let Lawson’s decision stand as a wake-up call to other self-insured municipalities that would seek to keep the same information about their employees confidential.

Middletown’s arguments are specious at best. Township officials say they are concerned about violating the Health Insurance Portability and Accountability Act (HIPAA) and the Employee Retirement Income Security Act (ERISA), which can carry substantial federal fines for violations such as revealing an employee’s personal information.

Nobody is asking for a list of conditions for which employees sought coverage. And the township’s argument failed to address precisely which elements of HIPAA or ERISA specifically prohibit the release of the health care information requested.

Lawson’s court ruling was a victory for all taxpayers on the hook for health care benefits for part-time employees in their towns. The sooner more information is available about who’s feeding at the trough, the sooner such abuses will end."

Brewer v. Middletown: Court orders Middletown to release employees' personal health insurance information

Middletown has long declined to reveal the names of those enrolled for township health benefits, while many other towns as well as Monmouth County, have taken the position that the information is public. NJ Superior Court Judge Lawrence M. Lawson in last week's ruling, established that the info is indeed public and is applicably to all of Monmouth County.

This ruling is a clear victory for open government advocates and those that have been calling for Middletown to be more forth coming and transparent  in disclosing information that residents and tax payers have a right to know.

From the Asbury Park Press:

MIDDLETOWN — A state Superior Court judge has ruled that a township man is entitled to public records showing which township employees receive taxpayer-funded health care coverage after officials denied a request for the documents.

Judge Lawrence M. Lawson ruled that the township, which provides a group health plan to its employees, must disclose the names of employees who are enrolled, the type of coverage elected by each employee and the annual cost of coverage for each type of election, under common law access rights.

Township officials plan to discuss whether to appeal Lawson’s Jan. 7 ruling or comply with it at the Township Committee’s Jan. 21 meeting, Township Attorney Brian Nelson said.

Township officials are concerned with violating the Health Insurance Portability and Accountability Act (HIPAA) and the Employee Retirement Income Security Act (ERISA), which can carry substantial fines for violations such as revealing an employee’s personal information, Nelson said.

“We fear an employee could file a complaint with the federal government, which has significant penalties if we release information,” Nelson said. “The problem here is we have have a series of (records) requests where people could put the information together and figure out the claims data.”

However, Walter Luers, president of the New Jersey Foundation of Open Government and attorney for resident Lee Brewer, who filed the suit, disagreed that the requested information would put the township in jeopardy of violating HIPAA. Luers said he was confident the decision would be upheld if appealed. The suit was filed in July.

“It’s exactly what we wanted,” Luers said of the decision. “In (public records) cases like this, once the trial judge makes a decision, it’s usually affirmed on appeal. Judge Lawson’s decision is pretty firm.”

Brewer, of Crawford Road, made a request July 5 under the Open Public Records Act and common law for the names of everyone, including employees, retirees and appointees, who were enrolled for health coverage with Middletown Township since Jan. 1, 2008, according to the lawsuit. Brewer also had asked to be informed about whether the coverage was for a single person or for additional family members, and the cost of the insurance to the township, according to the lawsuit.

Continue reading

Never Leave It In The Hands Of The Judges

This letter also appears on Middletown Patch:

This expression, more commonly used in a boxing ring is also true in a courtroom in Freehold. Judge Lawrence M Lawson reversed the denial by the Middletown Planning board for construction of a White Castle restaurant in Port Monmouth on March 12, 2013. After reading legal briefs submitted by White Castle and Middletown Township, oral arguments by both attorneys and a review of evidence submitted to the court at the hearing on February 21, 2013. It all came down to one single word “IMPRACTICABLE”.

The definition of impracticable is: “incapable of being performed or accomplished by the means employed or at command”. 

(Final White Castle site plan)

This was the core issue that Judge Lawson based his reversal of the Planning board’s denial for the White Castle application. It all revolves around one of the townships ordinances that they did not comply with. There are actually 18 but this one ordinance is the reason the township attorney cited in the resolution to deny. Ordinance is #16-622 D-9 and it states:

“Parking lots or unloading areas of commercial, business, or industrial uses abutting residential uses shall provide a landscaped buffer screen at least fifty (50') feet wide on the perimeter of all parking or loading areas”.

Simply, parking spaces for commercial properties need to be 50 feet away from the property line of a residential home. White Castle originally gave 10 feet and eventually, through comments and direction of the Planning board, increased it to 24 feet. The board inquired if 8 or so of the 21 parking spots could be moved to another area on the property to eliminate the request for the exception to 16-622 D-9 and comply with the ordinance. White Castle’s engineering expert, William Stevens-Vice President of Professional Design Services in Lakewood NJ after being questioned by board member Kevin Settembrino at the March 7, 2012 planning board meeting testified that:

“Parking could be provided on the easterly portion of the site. That could be done”

At the same meeting White Castle’s professional planner, Ian Borden-President of Property Professional Design Services in Lakewood NJ testified:

“There’s eight parking spaces along the rear of the site and possibly one or more on the western parking spaces toward the southern portion of the site. If those were relocated to the eastern portion of the site, we would conform”.

Mr. Jason Greenspan, Director of Planning for Middletown Township, during a discussion with Mr. Borden about the distance between the relocated parking spots and the restaurant commented:

“So that distance is probably about .05 of a mile?”

Mr. Borden replied:

“I think it’s not really so much what a fraction of the mile it is. I think it’s more what’s convenient for the use”

Again the definition of impracticable is: incapable of being performed or accomplished by the means employed or at command. 

The criteria the judge must use to reverse the Planning Boards decision is that they acted arbitrary, capricious or unreasonable towards the applicant (White Castle). The movement of 8 or so parking spots that the applicants own experts testified could be done is somehow IMPRACTICABLE? How is the refusal of White Castle to move those parking spots considered arbitrary, capricious or unreasonable on the Township of Middletown? In the publication of Judge Lawson’s ruling he states:

“In considering the testimony at the hearings, and the exhibits presented to the Board, this court finds that the Plaintiff did, in fact, prove that compliance with the site plan requirements is impracticable”.

When both the applicants engineering and planning expert testify the parking can be moved it cannot be IMPRACTICABLE (incapable of being performed or accomplished by means employed or at command).

The denial was the correct legal decision by the Planning board based on the evidence that was presented by White Castle. The judge decided that White Castle’s “convenience” not to relocate parking spots is more important than the Township’s right to govern against overdevelopment and negative impacts on its community. The Planning board has authorized an appeal to overturn Judge Lawson’s ruling. I want to applaud them for fighting for everyone in the community.

There are many issues with White Castles plan but overdevelopment is the primary issue that affects everyone who lives in the area (See Photo). As you can see the entire lot is 1.67 acres because of the combination of 5 lots that created this jigsaw puzzle of property. Only 0.70 acres is used for the building, parking lot and drive thru service. The entire front yard is a storm water basin designed to spill onto Highway 36 during a storm event. The entrance is located within an acceleration lane about 100 feet from the entrance ramp to HWY 36 off Main St. These are the issues where they DO NOT COMPLY with Middletown’s ordinances. Local residents are still opposed to this development. All we ask is for White Castle to comply with all of Middletown’s building codes.

Shannon Ecklof

Chestnut St

Port Monmouth

White Castle Update: The Fight Isn't Over, Middletown Planning Board Intends to Appeal Judge's Decision

Since learning last week that the NJ Superior Court and Judge Lawrence Lawson, overturned the decision of the Middletown Planning Boards to deny the fast food chain White Castle from building a restaurant on an undersized lot located between Main Street and Wilson Ave., on highway 36 in Port Monmouth, I’ve been in contact with Chestnut Street resident Shannon Ecklof. Ecklof has been leading the fight against White Castle sliding into the lot that butts up to his back yard and wrote the letter, ”They can’t fit 10lbs of White Castle in a 2lb bag” that appeared on this blog back in March of 2012. He has informed me that he and his neighbors haven’t given up on their fight against the White Castle.


Shannon informed me that he and his neighbors knew of Judge Lawson’s decision on the day it was handed down last month and that their attorney attended the April 3rd meeting of the planning board in response to discuss it.

At the planning board meeting, their lawyer asked the board if they had any plans to appeal Judge Lawson’s decision. After a brief discussion, it was decided by unanimous vote that the planning board would appeal.
I was also informed that they (Shannon and others) have since met in the Mayor’s office, where they were told by mayor Scharfenberger, the township would not appeal unless they thought they had a good chance of overturning Judge Lawson’s opinion. They would not waste tax payer’s money fighting a lost cause because of public scrutiny over township spending, but they were confident in a positive outcome and an appeal should be forthcoming.

For Shannon Eckof and others that live in the vicinity of where the White Castle wants to build, the news that the township and planning board are planning to appeal is welcomed. As a matter of law (and common sense in my opinion), it would seem that the planning board was right to deny White Castle’s application, it just doesn’t make sense to cut corners in order to squeeze a site plan that would normally require a 3 acre parcel of land onto a lot half that size.

Depending on the courts, the appeal of Judge Lawson’s decision could take anywhere between 6 months to 2 years to be heard according to Ecklof’s attorney. So don’t expect to be driving into a White Castle location in Port Monmouth anytime soon, it could be awhile or not at all.

We’ll keep you posted.