Submitted by:
John Paff, Chair
New Jersey Libertarian Party’s
Open Government Advocacy Project
Somerset, New Jersey

A worthwhile exercise for citizen activists is to request their municipality’s, school board’s or other agency’s legal services bills. These records permit citizens to know a) how much money the agency is spending on lawyers and b) a general idea of what the money is being spent on.

As an illustration, I submitted an OPRA request for invoices for legal services provided to the Plainfield (Union County) Board of Education for a three month period. I have placed those invoices, which span nearly forty pages, on the Internet at http://ogtf.lpcnj.org/PlainfieldBOELegalBills.pdf

Here are some things that a citizen can learn from the invoices:

1. That the Plainfield Board of Education paid a single law firm approximately $77,500 during a three month period in 2010.
(Annualized, this calculates to approximately $310,000 per year).

2. The law firm gets paid a $5,000 monthly retainer in addition to $150 per hour for legal services performed.

3. An ELEC search shows that the law firm, Hunt, Hamlin and Ridley of Newark ( http://www.hunthamlinridley.com/ ) regularly contributes to Democratic campaigns, including Sharon M. Robinson-Briggs’ 2009 Primary election campaign for Mayor of Plainfield.

4. The court and administrative cases that the Board is a party to. (Actually, the Board redacted the case names from the invoices, but I expect that the Board will disclose these case name after considering my July 26, 2010 letter, which is also available at the above link.) This allows citizens to OPRA the complaints filed in those cases (and the settlements or judgments that resolved those cases) in order to learn who is suing the agency and why.

5. If disciplinary action is being taken against employees. For example, the invoices reveal that “CSA” was apparently suspended with pay and had tenure charges filed against him her her earlier this year. (see pages 27 and 28 of the PDF at the above link).

6. Of possible violations of the law committed by the agency. For example, Dr. Gallon, on April 14, 2010, alleged that the Board violated the Open Public Meetings Act.

In sum, legal services invoices contain useful information for citizen activists who wish to monitor a public body and hold it accountable.
_____________
New Jersey Libertarian Party Open Government Advocacy Project

Submitt by:
John Paff
Somerset, New Jersey

On June 11, 2010, Judge Kathryn Brock heard more argument in my OPRA and common law access case against the Borough of Garwood. At issue, readers may recall, is a DVD of former Garwood Police Officer Gennaro J. Mirabella, while in uniform, entering the locked office of Garwood’s Chief Financial Officer and opening her desk drawers.

Background on the case can be found HERE and HERE

First, Judge Brock decided that Mirabella, since he has not contacted the court with a request to be heard, is not interested in the case and thereby has conceded that he has no claim that his privacy would be violated by release of the DVD.

Next, Judge Brock posed an interesting question: Is evidence in a criminal case, such as a bag of marijuana or a firearm, within the scope of an expungement order such that those items of evidence would be isolated and made unavailable to public view once an expungement order was entered? If not, she suggested, then why would the DVD at issue in this case be exempt from public access?

My lawyer, Rick Gutman, said that he agreed that the DVD is not shielded by the expungement order but that even if it was, there was still a compelling need for the public to see it, and that the expungement statute, specifically N.J.S.A. 2C:52-19, authorized Judge Brock to release it.

Garwood’s attorney, Robert F. Renaud, said that the DVD is clearly a record protected from disclosure by the Mirabella’s expungement order, and that the court’s power to release expunged records, as set forth in N.J.S.A. 2C:52-19, didn’t apply to OPRA and common law actions.

After reserving decision on the question of whether the expungement order requires that the DVD remain confidential, Judge Brock then asked Mr. Renaud to explain why my interest, under a common law balancing test, was less than the Borough’s need to keep it confidential.

Mr. Renaud argued that my interest in the DVD was slight because “Paff just wants to see it” and that if the DVD were to be released, people could determine where the police hid the camera and that would expose an “investigative technique” and would make it harder for the police to place the camera in the same spot if it needed to do so in the future.

He then went on to compare the placement of the camera in the Chief Financial Officer’s office to a camera placed by police in an apartment’s window to record illegal drug transactions occurring on the street. But, Judge Brock said that the reason why the video of drug transactions needs to be kept secret is to prevent the owners of the apartment who cooperated with the police from being identified because the drug dealers might retaliate against them. Since the concern for retaliation doesn’t exist in this case, Judge Brock seemed to dismiss Mr. Renauld’s analogy.

Mr. Gutman argued, and the judge seemed to agree, that it’s not just my personal interest in watching the DVD that’s important in this case but rather that the general public has a right to see it because the case involves police misconduct and possible favoritism being given to Mirabella, who is from a very politically connected family.

In the end, Judge Brock said that she’s going to review the whole matter and render an opinion within 30 days.

I spent about 3 hours culling through gathered Open Public Records Act requests at the county last Tuesday. Here are some little tidbits I’d like you to know about.

The county paid $2,037.77 to the vendor “Christmas Spectacular” for a 3 ft sign for the courthouse that read “Seasons Greetings”.

An employee lawsuit was filed on January 29, 2010 Union County Corrections Officer Alvin White vs Union County Department of Corrections and John Doe(s)

Union County Alliance 2010 proposal for a $332,125 contract

Aruspex proposal for 9.1.09 through 6.30.10

Employee position control changes 2.1.10 through 3.1.10

Handouts pertaining to the 2010 budget hearings were not available in electronic format as requested, instead I was presented with binders containing the electronic documents which were printed. OPRA complaint? Stay tuned.

Too much to scan, you’ll have to take my word for it, or OPRA it yourself:

50 staff and volunteers were fed $900.00 worth of sandwiches from Dara’s Caters @ $300.00 per nights of October 22, 23 & 24th Hayrides.

George Devanney was reimbursed for the following items of interest:

$109.24 for what was labeled Lunch meeting re: Freeholder meeting held in Chili’s in Clark on May 14, 2009 (date not a typo) hmmm It cost taxpayers $1,767 for catering of the freeholder meetings held in March 2010 – I never thought to OPRA catering/food bills for staff meetings regarding freeholder meetings.. … also $137.20 for a staff meeting regarding freeholder meeting $137.20 at Delicious Heights in Berkeley Heights, NJ where Devanney lives. Why is staff traveling to George’s hometown – approximately 30 minutes out of Elizabeth for meetings? Does George have one of those stay at home and work from the dining room table jobs too?

$30.16 for Lunch Meeting regarding events and sponsors – Dolce Broad Street Elizabeth - that’s refreshing.

$926.91 for work related travel labeled Winning Strategies – Lobbying meeting.. $724.00 was for rail fare for 2 business class seats.

$65.71 for Lunch meeting regarding Open Space Association at the Garden Restaurant in Union – no date available.

$292.77 reimbursement for NACO county forum on energy independence, including $135.00 for 3 meals @ $45 each.

$365.27 for reimbursements for the League of Municipalities including $54.75 for in room dining.

More hidden MusicFest expenses, $3,000 Reimbursement for Food for September 12 & 13 Music Fest Volunteers – Tony’s Italian Sausage.

Submitted by:
John Paff
Somerset, New Jersey

As previously announced, my Attorney Rick Gutman and I appeared before the Hon. Kathryn A. Brock at the Union County Courthouse on Friday, April 30th, to argue entitlement to a surveillance video that reportedly showed former Garwood Police Officer (and brother of a Union County Freeholder) Gennaro J. Mirabella entering the locked office of Garwood’s Chief Financial Officer and opening her desk drawers. The hearing lasted nearly three hours.

We lost on our Open Public Records Act claim because Judge Brock held that the tape is exempt a) as a “criminal investigative record” and b) because disclosure may improperly reveal security measures and surveillance techniques.

In order to bolster its “security measures” claim, Garwood had submitted an unsigned certification by its Police Chief, William Leg, which stated: “. . . the Borough’s safe, in which important records and other materials are kept, is depicted in the video. This is something which, if disclosed, would also jeopardize the security of the building and create a risk to safety.” During argument, Garwood’s attorney, Robert F. Renaud, suggested that the video would show a criminal the exact location of the Borough’s safe, thereby allowing the miscreant to bore a hole in the municipal building’s roof directly over the safe to allow for its easy extraction. (Legg’s certification is on page 67 of the PDF file at http://ogtf.lpcnj.org/201085PZ//GarwoodCase.pdf )

After losing the OPRA claims, Mr. Gutman proceeded to explain why the public’s interest in viewing the recording was greater than Garwood’s interest in keeping it confidential. If we could prove this, we would get the tape under the common law right to access records, even if we were not able to get it under OPRA.

It was at this point that Mr. Renaud informed Judge Brock that he had with him a copy of the recording and portable DVD player and would show it to her in chambers if she wished. After she initially declined, Mr. Renaud again made his offer and this time she accepted. Mr. Gutman said that he wanted to view the video too, and his request was allowed provided that he promised not to disclose to me or anyone else what the video contained. Judge Brock and the two lawyers then went into the back room to watch the video and emerged a few minutes later.

The conversation that then took place between the judge and the lawyers made it clear that the Borough’s safe, which Chief Legg claimed to have been visible on the video, was NOT visible on video. Instead, according to Judge Brock, the video showed Officer Mirabella enter the office, open a door to a closet or an adjoining room, look through and then close that door, walk to a desk and open its drawers and then leave the room. The door that Mirabella opened was apparently visible on the video but the camera was positioned such that one could not see into the room that was behind the door.

I will quote Mr. Renauld’s explanation as to why Chief Legg stated that the safe was visible on the video as best as I can
remember: “Even though you can’t see the safe itself, I know that there is a safe behind the door that Mirabella opened, Chief Legg knows that there’s a safe there and the Clerk knows that there’s a safe there.” Judge Brock responded “But, I would have never known there was a safe behind that door unless you had told me.”

The hearing then wrapped up pretty quickly. While we still lost on our OPRA claim (although Judge Brock, after seeing the video, probably reversed her position on the “security measures” issue, she had still found the video exempt as a criminal investigatory record), she was not prepared to make a determination on our common law access claim. She seemed impressed with Mr. Gutman’s argument that the public has a great interest in viewing a video showing wrongdoing by a uniformed police officer, especially in light of the public controversy that arose after it was learned that the officer is a Union County Freeholder’s brother, that the charges against him were dropped and that he was allowed to resign in good standing.

Judge Brock scheduled another hearing for June 11, 2010 at which time she will consider our common law claim and whether the fact that Mr. Mirabella had the charges expunged from his record has any impact on our entitlement to the video. She ordered that Mr. Mirabella be given notice of this hearing so that he can enter into the action to assert any privacy interests that he might have.
___________________________________________
County Watchers Note:
Judge Katherine Brock is a former Union County Democratic Chairwoman

Attorney Robert Renaud is the current Vice Chairman of the Union County Democratic Committee

Previously reported:
Genarro Mirabella Deal will exist on the internet in perpetuity

Submitted by:
John Paff
Somerset, New Jersey

An Open Public Records Act (OPRA) case that was filed on March 16, 2010 will be heard on Friday, April 16, 2010, 9 a.m., by Hon. Kathryn A. Brock at the Union County Courthouse, 2 Broad St, Elizabeth, New Jersey.

At issue is my request for a surveillance tape that reportedly shows former Garwood Police Officer Gennaro J. Mirabella entering the locked office of Garwood’s Chief Financial Officer and opening her desk drawers. Garwood Borough denied access to the tape claiming it “is a criminal investigatory record . . . for which disclosure may jeopardize security measures and surveillance techniques which, if disclosed, would create a risk to the safety of persons, property, electronic data or software or both.” Richard Gutman, Esq. of Montclair is representing me in this case.

The lawsuit papers are on-line and can be viewed HERE and the public and media are invited to observe the April 16th hearing. Those who wish to observe should call the court at 908-659-4774 the day prior to hearing to confirm that it hasn’t been postponed. Refer to Paff v. Borough of Garwood, Docket No. UNN-L-1089-10.

The incident underlying my request is politically charged because Officer Mirabella, who is the brother of Union County Freeholder Alexander Mirabella, was not convicted of any charges arising out of the incident in the CFO’s office or another incident where he was caught on video shoving paper into laundromat dollar bill changers in an apparent attempt to jam them. Rather, the disorderly persons offenses brought against Mirabella were dismissed and Mirabella entered into a deal with Garwood Borough in which he would be allowed to resign in good standing. For more information on this matter and a video of Mirabella in the laundromat go HERE.

Despite evidence of holiday parties around the county on Friday Dec. 18th, OPRA requests for bills for catering and lunches for the entire month of December turned up nothing. Also, department heads were spotted gathering one other afternoon at Grazziano’s located on Springfield Ave. in Berkeley Heights. And a Star-Ledger article reported the following:
At 11:59 a.m., Mogensen’s (Emergency Response Team Commander) phone rang as he was on his way to the department’s holiday luncheon at Galloping Hill Caterers in Union.

Hmmm.

Fellow County Watcher and Garwood resident, Bruce Paterson added to the “Mirabella Deal” drama on his blog Garwood’s *Independent* T.R.E.E.. From his insider view on Garwood he saw the policital connections and contradictions of justice.

Excerpts:

Was there any special dispensation given to officer Mirabella? Usually Officers are held to a higher standard of integrity and responsibility within a community. Within Garwood we need to review some incidents for comparative justice:

1) Incident #1: The block in front of a resident’s home was paved and sidewalks redone, all under contract by the boro. The meridian between the sidewalk and curb was replanted by the boro contractor but 90% was weeds and hay-like grass. The resident complained to the boro engineer that the contractor performed poorly. To show the weeds the resident let it grow wild. The boro issued a warning regarding lawn maintenance; however the wording of the warning was ambiguous. The resident appraised the boro of the situation and that the engineer was to review the weeds for a punch list item to the street paving contractor. Despite a major flaw in the wording of the warning, despite that the weeds were the result of the boro’s own hired contractor, despite that this was a resident in good standing with the boro and kept the boro apprised of the situation, the boro still issued a civil complaint against the resident. The resident was forced to go to court to defend his actions even though he did not cause the “root” of the problem. He submitted a guilty plea for expediency and less cost to boro and resident. This resident was put on probation for 3 months and now has a record.

2) Incident #2: A 12 year volunteer rank and file firefighter in Garwood was at a scene of a car fire and was in control of the situation. A Fire department officer entered the area without wearing proper gear and the firefighter pushed him aside for his safety. This firefighter was subsequently brought up on departmental charges for “conduct unbecoming a firefighter” and was suspended for 3 months. He now has a record.

Questions arise that there may have been politics and conflicts of interest involved due to all participants, that controlled this disposition:

A) The Mirabella incident involved a police officer who is the brother of the democrat Union County freeholder chairman Alexander Mirabella, who was up for election in 2009, the year of the incident and who did not need a negative incident involving a close sibling just months before the election.

B) Union county at every instance during January 2010 after the incident was resolved internally denied OPRA requests from the public for any paperwork regarding any investigations or determinations involving the Freeholder chairman’s brother’s criminal actions, saying none are in existence. Yet it was proven there were papers in existence. This in itself may prove some nefarious political involvement and cover-up.

C) The Garwood boro attorney who was involved throughout this investigation and settlement as an overseer of the process and was involved in the advice to boro during the incident is the vice chairman of the Union County democrat committee who guides the selection and campaign of the democrat freeholders including freeholder Chairman Alexander Mirabella who was up for election.

D) The mayor of Garwood is democrat and was put in a position to decide if the boro would pursue further charges of criminal trespass against the brother of a freeholder. His involvement is that he has a company that receives hundreds of thousands of dollars of business from the Union County, the business dollars, resolutions and budget allocations voted on by the officer’s brother, chairman Mirabella of the Freeholders.

E) The Union County Prosecutors office, who chose not to prosecute the freeholder chairman’s brother is headed by a democrat political appointee who a few years ago was the subject of approved state legislation adjusting his tenure in government in order to bump his pension to approximately $100,000/year. The freeholders indirectly have oversight regarding his department hiring and budget.

F) The State Attorney General’s office that elected not to prosecute “in the interests of justice” is a political appointment position under the recently ousted governor John Corzine. The state attorney generals office recently had 2 out of 4 NJ state attorney generals forced to step down under high profile abuse of power situations which raises questions of this department’s integrity..

G) The Superior Court Judge for the final “expungement” hearing is the brother-in-law of Joseph Cryan, a main democrat political force overseeing state democrat elections on higher levels and who works for Union County as a high paid under-sheriff, and who is closely aligned to the Freeholders.

Some final items to ponder: ex-officer Mirabella since the record may be now expunged can work as a police officer again. Possibly even at Union County where his brother is a Union County Freeholder. Time will tell. Plus the public may never know the reasons behind ex-officer Mirabella committing the 2 criminal trespass and criminal mischief actions.

The Bruce Paterson’s full blog piece can be seen HERE.

Garwood police officer, Gennaro Mirabella, freeholder Alenxander Mirabella’s brother, was captured by store video surveillance tampering with private property. This video was obtained through the Open Public Records Act.

Background:
On September 9, 2009 a complaint was filed against Garwood Police Officer Genarro Mirabella by a fellow officer. The complaint read in part: Commit criminal mischief by purposely tampering with property belonging to Jumbo Wash, as to endanger property of Jumbo Wash by jamming business cards into two currency-to-coin changers inside Jumbo Wash which rendered them inoperable, depriving Jumbo Wash cash revenue causing pecuniary loss less then $500.00. In violation of N.J.S.A.2C:17-3A(2), a disorderly persons offense.

Mirabella resigned and won’t be prosecuted. An agreement signed by the town of Garwood states future employers will be told he left in good standing.

To comment on this video visit YouTube

Previosly reported by the County Watchers:

Mirabella incident is a disturbing look at Your right to know - whatever you can drag out of them

State AG asked to investigate the “Mirabella Deal”

Prosecution of former Garwood Police Officer Gennaro J. Mirabella???

Freedom of Information laws affirm a citizen’s right to know how your government operates. It provides rights of access to records reflective of governmental decisions and policy that the effect your life.

Although laws exist around the nation, many lack any effective enforcement mechanisms with no consequences for offenders; therefore they can be ignored at the will of the power that holds the information.

So what does a citizen have to do to get information around here? The Mirabella incident is a good case story:

Background:
I received an anonymous tip around January 7, 2010 that Garwood Police Officer Genarro Mirabella, the bother of freeholder Alexander Mirabella, allegedly committed crimes and was being allowed to resign in lieu of prosecution. Further, it was alleged Mirabella would have the investigatory records expunged and would obtain a security position in the Union County courthouse. It was quite detailed; they even gave a court date of February 16, 2010 for the expungement proceedings.

A politically connected cop was being allowed to skirt the law and go get a badge and gun somewhere else? I took this one seriously and dug in for a fight.

First step: I placed an OPRA request to the County of Union asking for records pertaining to this incident.

Response: No document to provide.

Reality: There were at least two letters on file in Union County signed by Theodore J. Romankow, Prosecutor of Union County and William Kolano, Assistant Prosecutor. These letters turned up in a records request to Garwood.

Second step: I placed an OPRA request to the Garwood Municipal clerk.

Records Requested:
Any complaint (i.e. CDR-1, CDR-2 or other form of complaint) filed against any person with the name of “Mirabella” from January 1, 2009 to present. Any police report, incident report or other writing pertaining to an alleged crime committed by anyone with the last name “Mirabella” from January 1, 2009 to present.

Response: My request was not valid because I failed to identify the specific record that was being requested and the Custodian of Records is not required to become a researcher for the person making the request.

Reality: One of the alleged crimes was committed in or around the clerk’s office; are we to believe no one in the office knew about it?

More reality: She was wrong and complied to further OPRA requests submitted by open government activist John Paff. Request: Any police reports, incident reports or other writings pertaining to incidents involving Gennaro J. Mirabella occurring on or about a) August 18, 2009 at the JumboWash on 300 South Avenue, Garwood; and b) August 19,2009 at the Garwood Municipal Clerk’s Office at 403South Avenue.

The following records were provided:
08-26-09-letter from attorney for mirabella1.pdf
08-31-09-letter from prosecutor’s office1.pdf
09-03-09-compliants(2)1.pdf
08-25-09-letter from attorney for jumbo wash1.pdf
08-25-09-letter from prosecutors office1.pdf
09-22-09-265-resolution accepting resignation1.pdf
09-15-09-email from Cap to Chief1.pdf
09-25-09-letter of resignation from mirabella.pdf
10-13-09-letter and final agreement1.pdf

Third Step: An OPRA request was made to the Garwood Municipal Court – that clerk complied with the law immediately and professionally.

Next steps: This isn’t over.

Garwood Municipal Clerk Records Requests pending:

1. Complaints S-2009-000015 and S-2009-000016 (both pertain to State v. Gennaro J. Mirabella) each state that the complained of activity was “captured by video surveillance.” We would like copies of the video of both of these incidents.

2. A “incident report” or “investigation report”. We believe that some sort of report had to be made describing how the police learned about the incidents involving Mirabella at the Jumbo Wash and Municipal Building, who was dispatched, what occurred and other details relating to the investigation.

Criminal Division Union County Superior Court Records Requests Pending

Expungement records: On February 5, 2010 I spoke on the phone with both Nora Casado and Robert Eppenstein concerning my request for records pertaining to a PENDING expungement petition filed by Gennaro Mirabella. It is important to note that the petition has not yet resulted in an Order for Expungement. I was denied access to any records in the file and neither Casado nor Eppenstein would even confirm that such a file existed.

A letter to the Criminal Division states: While records that are the subject of an Order for Expungement are clearly confidential (see N.J.S.A. 2C:52-15 and R.1:38-3(c)(7)), I can find no case law, statute or court rule that exempts PENDING expungement petition filings from public access. Absent an exemption, it would appear that a PENDING expungement file would be a “court record” as defined by R.1:38-2(a)(1) and available for public access.

I wish access to Mr. Mirabella’s expungement petition. Since it may not be “pending” for much longer, I ask that you please respond to this request immediately.

One thing the courts did confirm for me, the judge that would be assigned this case would be Joseph P. Donohue. Judge Donohue was assigned to the criminal division on Feb. 2, 2004. He is the brother-in-law of Assemblyman/Undersheiff/Former State Democratic Chairman – Joseph Cryan.

________________________

Do you still think you have liberty? Glen Beck

Liberty cannot be preserved without a general knowledge among the people, who have a right… and a desire to know; but besides this, they have a right, an indisputable, unalienable, indefensible, divine right to that most dreaded and envied kind of knowledge, I mean the characters and conduct of their rulers.
A Dissertation on the Canon and Feudal Law (1765) John Adams

Senator Lorretta Weinberg at a NJ Foundation For Open Government Sunshine Week event.

“We want to change the culture of those people who are custodians of records, of public officials, who think it is their responsibility and duty to keep these things from the public,” Weinberg (D-Bergen) said at a news conference in Trenton. “The public owns everything we do. They pay in one way, shape or form for the offices we have, the telephone calls we make, the copies we make and everything else.”

“The people of New Jersey — and everywhere else in this country, for that matter — should be able to request [records] even if it’s on the back of a cocktail napkin,” Weinberg said. “It’s far more important that the public’s right to know be upheld and protected even if it means that public-records custodians have to be a little more forgiving about how they receive records requests.”

Senator Weinberg Star-Ledger 2/4/10

Read more.