At the November 25, 2019 meeting, the committee unanimously adopted Resolution 2019-119, which concerns the Open Public Records Act (OPRA).
The resolution was developed by the Municipal Clerks’ Association of New Jersey (Association) with the blessings of the New Jersey League of Municipalities (League). It praises the good purposes of OPRA but lobbies for a delay of much-needed reforms.
The Clerks’ Association provided a fill-in-the-blank resolution that it distributed to all municipalities in the hope that they would adopt it. The Association and the League would then use these resolutions to lobby the legislature to water down and delay existing, bipartisan reform legislation sponsored by Senators Loretta Weinberg (D) and Joseph Pennachio (R).
The reform legislation has already been subjected to years of vetting and lobbying by the Clerks’ Association, League of Municipalities and New Jersey School Boards Association. With 17 years of actual experience with OPRA, and six years of lobbying, the Clerks’ Association and the League already know the issues surrounding OPRA reform. A study commission isn’t needed.
As a preamble to the call for a study commission, the Clerks’ Association’s resolution contains broad statements about how onerous OPRA is. It asks each municipality to fill in the numbers of OPRA requests it receives, the amount of time spent responding to requests and the costs of attorney review. It asks for three years of information: 2017, 2018 and 2019.
One of the problems with the resolution is that when a municipality adopts it, the municipality also regurgitates the Association’s broad statements about how burdensome OPRA is. This happens even if a municipality doesn’t have any OPRA problems.
As we all learned in grade school, when you copy someone else’s work, you copy their mistakes and you’re not thinking for yourself. Tabernacle’s wholesale adoption of the Association’s fill-in-the-blank resolution proved this lesson again. Tabernacle’s Resolution 2019-119 is full of erroneous and thoughtless statements which demonstrate Tabernacle’s baked-in bias against OPRA, open government and accountability.
One example of Tabernacle’s misstatements is its adoption of the Clerks’ Association’s broad statement that OPRA was “fraught with abuse and misuse.” At the meeting, our committee was asked what OPRA “abuse and misuse” was going on in Tabernacle. The committee couldn’t identify any.
I’m not surprised the committee had amnesia about OPRA abuse in Tabernacle because the only instances of abuse have been committed by the township. It makes sense that Tabernacle would want to forget about its own abuse of OPRA.
The most recent example occurred just six months ago, in June 2019, when Tabernacle agreed that Lisa Love Cummins, a member of Tabernacle Township staff, knowingly and willfully, withheld a public document that was requested through the OPRA. This abuse was so extreme that Tabernacle also agreed to accept a penalty for Ms. Cummins’s behavior. In the 17 years that OPRA has been on the books, only about a dozen penalties for willful misconduct have ever been imposed in the entire State.
The township committee also forgot that, in the same OPRA case, Clerk Barber agreed to take down her statement from the township website that characterized OPRA requests as harassment. It’s a problem when a township clerk who, by law, is responsible for handling OPRA requests regards them as harassment.
Neither the Association nor the League nor the township want to acknowledge the abuse and misuse of OPRA by municipalities and other public agencies. It’s no surprise that the prevailing party in most OPRA cases is the requestor, not the public agency. And in most disputes, public agencies end up providing the records that they initially withheld.
Another problem with Tabernacle’s Resolution 2019-119 is that the information it reports is false. It exaggerates the actual number of OPRA requests that Tabernacle receives by more than 100 percent! The committee goosed up the numbers to convince legislators that OPRA is more burdensome than it actually is.
Here’s the problem with the information that Tabernacle inserted into Resolution 2019-119.
- It says Tabernacle got 205 OPRA requests in 2017; But the township clerk’s official log shows that Tabernacle only received 96.
- It says Tabernacle got 251 OPRA requests in 2018; but the township clerk’s official log says Tabernacle only got 88.
- It says Tabernacle got 282 OPRA requests in 2019; but the township clerk’s official log shows that Tabernacle only received 143.
These errors were brought to the committee’s attention when the resolution was being discussed. Township Clerk Barber explained that she broke apart each OPRA request into separate items. The committee, ever-willing to overlook facts that conflict with its conclusions, adopted the false numbers anyway.
The fact is that neither the OPRA itself, nor the courts, nor Tabernacle’s official OPRA template or its official OPRA log, count OPRA requests by looking at each item. They all consider an OPRA request to be the form (hard copy or electronic) that asks for one or more public documents. Legislators will not benefit from Tabernacle’s misrepresentation of the number of OPRA requests that it received.
Resolution 2019-119 also contains other dubious facts and figures. For example, it states that Tabernacle spent 846 hours responding to requests in 2017. The resolution also states that in 2018 and 2019, Tabernacle spent a yearly average of 1,950 hours.
The resolution further states that Tabernacle spent $765.00 on attorney review of OPRA requests in 2017; $2,930.00 in 2018; and approximately $3,157.00 in 2019.
It was unclear to me how the township arrived at these calculations and this was never explained at the committee meeting. So I submitted an OPRA request asking for records that provided the basis for these calculations.
I didn’t receive an answer to my request for the calculation of the number of hours spent on OPRA requests. So I contacted Clerk Barber again. She then stated: “There are no responsive records made, maintained or kept on file by the Township of Tabernacle.”
It was as I suspected. There aren’t any records showing how they calculated the number of hours spent on responding to OPRA requests. The township apparently just made up the number of hours and added it to the bogus number of OPRA requests that it plugged into Resolution 2019-119.
As for the calculation of additional attorney fees, the township sent me 20 pages of Mr. Lange’s invoices. Thirteen pages of invoices were titled “Brooks OPRA” and seven invoices were simply titled “OPRA.” More on this below.
Most OPRA requests are for conventional public records such as invoices, committee reports, emails, signed contracts, correspondence, permits, applications and the like. Ordinary records like these don’t need legal review and are supposed to be handled by the township clerk.
The reform OPRA legislation would encourage municipal clerks to put a wide range of public documents on the official website. This would increase public access to records and decrease the number of OPRA requests. But the Clerks’ Association and the League oppose this proposal.
Tabernacle’s official OPRA logs show that almost all of its requests are for conventional documents. And almost all requests are approved. Some OPRA requests may raise legal issues. But the vast majority do not.
The committee should insist and allow the municipal clerk to handle the routine OPRA responsibilities themselves. Unlike most municipalities, Tabernacle has two registered municipal clerks (RMC): LaShawn Barber and Elaine Kennedy. Each has received extensive training on OPRA from the Association and the League. Elaine Kennedy actually teaches clerk’s training courses for Rutgers University.
Apparently, though, the committee believes that two RMCs aren’t enough. In 2020, the committee hired a special counsel for OPRA work. The attorney’s proposal includes the review of “each individual OPRA request with the custodian of records and provide specific guidance and advise.” Legal review of all OPRA requests is extraordinarily wasteful of taxpayer money and unnecessary.
At the Reorganization meeting I asked how the special counsel would be managed. I’m concerned that Tabernacle will now be paying two attorneys (the township attorney and special counsel) to review OPRA requests. Mayor Brown didn’t address how special counsel would be managed. But she said that there wouldn’t be two attorney charges.
Many townships adopt ordinances that allow the hiring of special counsel when the governing body determines it’s necessary. Typically, these ordinances spell out in advance how special counsel will be managed. Tabernacle didn’t discuss how special counsel will be managed or adopt/amend its professional services ordinance. Neither Tabernacle’s existing professional services ordinance nor its Request for Proposals for this special counsel addressed management. Tabernacle seems to be making it up as it goes along.
If Tabernacle follows the lead of other townships, such as Medford Township, then special counsel will assist Township Attorney Peter Lange. This sounds like two attorney charges to me.
I want to get back to the 20 Lange invoices that the township sent me to support the attorney review fees that they plugged into Resolution 2019-119. Thirteen OPRA requests are simply titled “Brooks OPRA.” That my conventional requests can’t be handled by the two clerks is disappointing and wasteful.
The other seven of Mr. Lange’s invoices are merely titled “OPRA.” All 20 of these non-specific invoices show how murky and sub-standard Tabernacle’s legal billing practices are.
Tabernacle’s official annual OPRA log identifies each request by a sequential number beginning at OPRA-00001. These can be found on the Tabernacle Township website on the Clerk’s page.
Although each OPRA request has a unique identification number, Mr. Lange doesn’t reference it in any of his invoices. Because he doesn’t identify the particular OPRA request, it’s impossible to know which OPRA request he bills for or if the OPRA request exists at all. This opportunity for fraud and abuse is unchecked because no publicly available documentation connects his bills with a particular OPRA request.
In order to control against fraud and abuse in legal billing, the State Comptroller’s office recommends that all townships require their attorneys to individually identify each matter that they work on as well as other identifying information. Using Tabernacle’s official OPRA log number to identify those requests that any attorney works on would be an effective way to comply with the Comptroller’s recommendation because it would document each of the OPRA matters. It would also be easy because it would make use of the identification system that the clerk has already established. Neither the committee nor Mr. Lange choose to follow the Comptroller’s recommendations.
Not only are the individual OPRA matters unidentified, but some invoices don’t even specify what work Mr. Lange performed. One of the seven invoices identifies the Project as “OPRA” and describes the work done as “OPRA.” So Mr. Lange worked on “OPRA” and did “OPRA.” What does that mean?
The charge was $84.48. The committee approved this bill without any questions, as it routinely does with all of Mr. Lange’s bills.
Although Resolution 2019-119 recites that “Tabernacle strongly believes in and supports open transparent government,” Tabernacle’s willingness to thoughtlessly parrot the Clerks’ Association template and stuff it with false statistics reflects its core attitude against OPRA, transparency and accountability.
Tabernacle’s antagonism to transparency has led it into numerous lawsuits. Tabernacle hasn’t prevailed in any of them. The cost of them has been inflicted on Tabernacle’s taxpayers.
At the November 25, 2019 meeting, Attorney Peter Lange said that the township agreed to the terms of the OPRA consent orders just to settle the cases. He said that the settlement terms aren’t admissions of wrongdoing, but are just statements of convenience to end the litigation.
If that is true, then shame on the committee and Mr. Lange for continuing each of these cases for so long and driving up taxpayer costs unnecessarily.
The other problem is that Mr. Lange has thrown Clerk Barber under the bus. If, as Mr. Lange says, Clerk Barber agreed to retract her characterization of OPRA as harassment out of convenience to end litigation, then her underlying attitude towards OPRA remains. It’s hard to imagine how a clerk who considers OPRA requests as harassment can carry out her lawful responsibilities and effectively promote open, transparent government.
The next township meeting will be held January 27, 2020 at 7:30 PM at town hall. Correction: The January 27, 2020 township meeting will be held at the Emergency Services Building, 134 New Road. It will not be held at town hall.