Tabernacle Committee Buries Fire District Report

bury-reportThe Committee’s lack of management of emergency services appeared again with the release of its February 23, 2015 executive session minutes. These were released on August 22, 2016, 18 months after the executive session occurred.

The minutes lead to a topic known as the Garty report. The Garty report has never been mentioned publicly by the Committee, its staff or its professionals. It also doesn’t appear on any agenda, resolution or in any minutes either. Nor has it been identified in the Township attorney’s invoices. It’s been buried.

The February 23 minutes were released in August because they also included the Committee’s discussions of the Brooks v Tabernacle litigation (see TTJ Posts February 19, 2015, August 9, 2016, September 17, 2016). This litigation wasn’t settled until August 22, 2016. Prior to the settlement, I asked for the February 23rd minutes in an OPRA request. The clerk gave them to me after redacting Brooks v Tabernacle, as I expected she would. But she also completely redacted the first paragraph of the February 23 minutes.

Even when minutes are redacted, they should at least identify the subject that the Committee discussed. For example, even though the Committee’s entire discussion of Brooks v. Tabernacle is redacted, the official minutes identify it as a subject of discussion. They say “Next matter discussed Brooks v. Tabernacle”; and all the rest of the minutes on that subject are redacted.

The identification of each subject insures that the public knows what the Committee is talking about, even though the details of its discussion are kept private. In these minutes, the subject of the first paragraph isn’t identified. The public has no idea what subject the Committee discussed in its first matter.

Now that the February 23 minutes have been unredacted, we should be able to see what that first matter was and we should be able to understand the substance of what the Committee discussed. But we can’t.

The minutes are too vague and unbelievable to understand. They tell a story about an unnamed person who made an OPRA request, but then told an unnamed Committee member that she’d withdraw the request if the Committee discussed it in executive session. The minutes don’t identify anyone; they don’t identify the requested document (the Garty report). They’re grossly uninformative.

This is what the official minutes say:

The Township Solicitor discussed an OPRA Request for a protected document under an Attorney-Client Privilege. Prior to going into executive session, the requestor had advised one of the members of the governing body that if the Township Committee was going to discuss the OPRA request, she would like to withdraw her request.

No one, except Committee members, staff and the requestor could know from this opaque paragraph that the Committee discussed an OPRA request for the Garty report. The report was commissioned by the now defunct Fire District. It examined complaints by Medford Farms Volunteer Fire Company (MFVFC) members Shawn Vena and Rick Keiluhn who alleged inadequate driver safety, harassment and disruptions of fire company meetings. More on the Garty report later.

The secrecy and vagueness surrounding the Clerk’s official description of the Committee’s discussion raised so many questions. So did the Committee’s last-minute amendment to its executive session agenda to take up the requestor’s offer. So I asked for all of the documents.

The documents show that Linda Jagiela submitted the OPRA request for the Garty report and for Ms. Garty’s bill. Ms. Jagiela covered the Fire District and the Township Committee for the Central Record. After a long absence, she is now writing for the Pine Barrens Tribune.

Hers was an ordinary OPRA request; plain vanilla. It raised a legal question about whether the report was protected by some exception, such as attorney-client privilege. But that’s not unusual. When a clerk has a legal question, she asks the township attorney. The attorney reviews it, advises her and she decides how to respond.

Tabernacle Township Attorney Peter Lange said that the Township follows this same process. In his report to the Committee regarding documents that I requested in Brooks v. Tabernacle, he explained that he had advised Clerk Barber that he thought the documents were protected and:

At the end of the day, the Clerk decided that she would invoke the exception [to withhold the records] (emphasis added).

Jagiela’s OPRA request wasn’t handled this way. It appears that Clerk Barber didn’t ask for Mr. Lange’s advice because there’s no entry on his February 2015 invoice that identifies it. Typically, Mr. Lange identifies his OPRA work like this: “Review OPRA request/Brooks.” Entries like these appear on his invoices.

Just as the clerk’s listing of a subject in the executive session minutes allows the public to see what the Committee’s discussing, the attorney’s listing of a subject on his invoice also allows the Committee (and the public) to see what he’s billing for, though sometimes his descriptions are insufficient. The absence of Mr. Lange’s entry for work on the Jagiela OPRA request (and the presence of entries for work on Brooks OPRAs) shows clearly on Mr. Lange’s February 2015 invoice.

Mr. Lange’s February 2015 invoice, has two charges which suggest that he worked on the issue that the Committee discussed in the first paragraph of the executive session minutes. But his invoice doesn’t use the terms “Jagiela,” “OPRA” or “Garty report.”

The invoice shows a charge for 1.2 hours of work on February 23 for “Review atty/client docs; Review issues; Research.” There’s another charge for 0.3 hours of work on February 24 for “Review atty/client privilege issues.” That work was done the day after the meeting. It corresponds to the OPRA response letter that Clerk Barber signed and sent to Ms. Jagiela. The letter was sent on February 24, 2015.

The Committee addressed the unnamed Jagiela OPRA request for the Garty report just as it was about to go into executive session at its February 23, 2015 public meeting. The Committee had to amend Resolution 2015-48 to do so. Everyone on the Committee and its staff seemed to know about it. Resolution 2015-48 says:

The motion [to go into executive session] was amended to include potential litigation involving a new demand for open public record involving personnel records.

There’s nothing in Jagiela’s letters or her OPRA request that threatens litigation. And, because Clerk Barber hadn’t yet responded to Ms. Jagiela’s OPRA request, there wasn’t even a conflict to be litigated. There’s also no mention in the resolution of “Attorney-Client Privilege,” which was what Mr. Lange had researched that day. Nor is there anything in his invoice that mentions personnel matters or potential litigation. Because none of these subjects match, the official record is very unclear.

The addition of any agenda item at the last minute always raises issues about transparency. Sure, there are events that require immediate action, such as emergencies. But this wasn’t one of them.

Last minute additions to the official agenda are an opportunity for abuse. For example, TTJ readers may recall Mayor Barton’s infamous promise to list the petition to dissolve the Fire District on the Committee’s agenda.

[S]o as far as the petition, we will have it on the agenda, it will be noticed, you’ll see it.

Instead of listing the petition on the agenda in advance of the meeting where people really could see it, the Committee added the petition to its agenda at the last minute. Anyone who inspected the official agenda before 7:59 PM didn’t know it would be discussed at the 8:00 PM meeting.

There was no reason for the Committee to handle Jagiela’s OPRA request in executive session. By law, the township clerk is responsible for handling OPRA requests, not the Committee. Ms. Jagiela is a frequent OPRA requestor. She knows that the Committee doesn’t handle OPRA requests. Committee members also know that OPRAs are the clerk’s responsibility, not theirs.

Yet the official minutes describe that Ms. Jagiela circumvented Clerk Barber and made her bizarre offer to an unnamed Committee member. The unnamed committee member carried Jagiela’s offer back to the Committee and the Committee amended its executive session agenda and discussed her OPRA request that night.

So when did Ms. Jagiela make her offer to withdraw her OPRA request if the Committee discussed it in executive session? And when did the Committee accept her offer? It didn’t happen at the meeting because there wasn’t any discussion of Jagiela’s offer. Jagiela’s offer and the Committee’s consideration of it must have happened outside of public view before the public meeting.

The video of the February 23, 2015 meeting, seems to show Ms. Jagiela giving Mr. Barton the ‘thumbs-up’ sign at the end of the regular meeting (see TTJ Post, March 7, 2015; recording at 1:20:00 through end). Perhaps that’s her acknowledgement of their successful collaboration.

Ms. Jagiela’s offer to withdraw her OPRA request for the Garty report if the Committee would discuss her request in executive session really is bizarre. How could the Committee’s private discussion be useful to her? How would she know what they discussed or what they decided? Why would she want to withdraw her OPRA request in the first place? Why would her withdrawal of the OPRA request depend on a private discussion that she wasn’t part of? Her offer makes no sense.

Even stranger, was that Ms. Jagiela never withdrew her OPRA request! There are no records of any request to withdraw her OPRA request.

Instead, Clerk Barber fulfilled the OPRA request the very next day (February 24, 2015). She sent her the redacted Garty bill. But she didn’t send the Garty Report because she said it was protected by the attorney-client privilege [Letter of February 24, 2015]. When I recently asked for the Garty report, Clerk Barber sent it to me. She didn’t even redact it. I’ve posted a copy that I redacted.

It makes no sense for Ms. Jagiela to be satisfied with just the bill. Its newsworthy that taxpayers spent $2,625 for the Garty report. But the important parts of the story are in the report itself. Residents should know if there really are safety or disciplinary problems in the fire company and what was recommended to correct them. Those recommendations, if adopted, would improve Tabernacle’s fire services. The report is essential for a complete news story.

Ms. Jagiela didn’t seem interested in a news story. I don’t recall seeing any story from her about the Garty report or concerns about driver safety, harassment and disruptions at fire company meetings. She never pursued this.

Finally, there are the minutes which are so vague that they seem designed to hide rather than inform. Official minutes aren’t a transcript. But they should at least identify the subject. And they should also describe the central points that were discussed, the opinions that Committee members expressed, the final decision of the group and any votes taken.

These minutes don’t identify any subject, such as Jagiela OPRA or Garty report. They don’t mention why the Committee was concerned about Jagiela’s OPRA request, or what the threat of litigation was, or what the personnel matter was, or what thoughts Committee members had about these issues or why they accepted Jagiela’s offer to withdraw her request.

The minutes don’t say what the action that the Committee decided to take or whether they decided to take any action at all. There’s no mention of any discussion, consensus or vote. These minutes are not “reasonably comprehensible,” as the Open Public Meetings Act requires.

The Garty Report

Although the Garty report has never publicly been mentioned by the Committee, its administrator or its attorney, it seems like a straightforward and useful document. It’s an independent examination of complaints concerning the safety, discipline and the conduct of meetings of the Medford Farms Volunteer Fire Company (MFVFC). It’s as relevant now as it was when it was written because these are basic concerns that apply to all fire companies.

The report was commissioned by the Fire District, which, in August 2014, hired Moorestown attorney, M. Lou Garty, to investigate the complaints by Mr. Vena and Mr. Keiluhn. Ms. Garty reviewed the complaints, interviewed the participants, made factual findings, applied the law and made five recommendations.

The report describes a shouting match and near fight between Keiluhn and Vena which was broken up by fellow firefighter Ian McDowel. The incident was the boiling over of a long-simmering personality clash. It was fueled by various concerns such as that Mr. Vena was physically unable to safely drive fire trucks; that Mr. Vena routinely disrupted fire company meetings; that Mr. Keiluhn supported the costly litigation with the Township over rescue equipment (see Posts August 5 and August 8, 2013) and Mr. Vena said he should resign because of that; and because Mr. Vena filed the petition to dissolve the Fire District.

The Garty Recommendations

The report makes five recommendations. The first three addressed discipline of Keiluhn, Vena and McDowel.

Ms. Garty determined that Mr. Keiluhn used inappropriate language and threatened to hit Mr. Vena. She found that Mr. Vena disrupted fire company meetings and used “superlatives” in the confrontation with Keiluhn. She also found that McDowel broke up the confrontation. She recommended a 10-20 day suspension for Keiluhn; a 7-10 day suspension for Vena and no suspension for McDowel.

Cooperation and discipline are fundamental for fire protection. It’s not okay for volunteers to verbally abuse each other, threaten fights or disrupt meetings. By ignoring the disciplinary recommendations, the Committee is condoning behavior that’s obviously unacceptable.

The fourth and fifth recommendations addressed basic operational changes.

Fourth, as to safety,  ….The Fire Commissioners and the Company should also consider adopting a process for testing after certain events (accidents; if there is a reasonable suspicion that there is a need for testing due to drug or alcohol use or a degenerative condition such as ALS, seizure disorder, or MS; or an age benchmark).

This seems like common sense.

Fifth, as to ongoing operations of the Fire Company, I would suggest that leadership adopt and utilize Roberts Rules of Order at meetings and not permit members to interrupt one another, to engage in side comments and arguments or to speak out of turn on matters not on the agenda.

This is also common sense. Most organizations, including the Township Committee, follow Robert’s Rules of Order. They provide a structure for the meeting and give authority to the meeting leader to address the items on the agenda and to tell someone to stop disrupting the meeting. The fire company should also conduct its meetings in accordance with Robert’s Rules of Order.

All of the Garty recommendations, including the suspensions, are so basic that they should have been adopted. The Committee could have easily implemented recommendations four and five through its contract with the TFC#1 (see TTJ Post November 20, 2015).

The contract could have required TFC#1 to conduct its meetings in accordance with Robert Rules of Order and to adopt policies for testing after accidents that appear to have an underlying cause like drug use or medical conditions. The Committee could have defined those policies.

Instead, the Committee ignored the entire report. It adopted a contract with TFC#1 that runs forever unless the Township or TFC#1 terminates it. At the public hearing on the TFC#1 contract, a comment was made that a defined expiration date gives both sides the opportunity to make changes when the contract comes up for re-adoption. It was recommended that the Committee not adopt a perpetual contract because it prevents regular improvements. It’s unlikely that either group will terminate this contract just to insert a Garty recommendation.

The same comments were made when the Committee started discussing a contract with the Tabernacle Rescue Squad (TRS). The TRS contract, like the TFC#1 contract, would run forever unless it’s terminated. The TRS contract is still unfinished business. The Garty recommendations are still relevant and should be addressed.

The policy for allowing people with physical limitations to drive fire trucks and ambulances should also be addressed. The Garty report states that for safety reasons, Mr. Vena drives fire trucks only when there aren’t other drivers. If it’s unsafe for him to drive when other drivers are available, it’s also unsafe for him to drive when other drivers are not available. A policy for drivers with physical limitations should be established for the TFC#1 and the TRS.

The Burial

Ms. Garty submitted her complete report to the District. But the District was dissolved by the Township Committee on December 8, 2014, before the District could act. When the Committee dissolved the District, it became responsible for all of the District’s business. This included acting on the allegations of harassment, unsafe conditions and disruptions.

The Committee delegated “day-to-day” management of fire services to Administrator Doug Cramer. Safety, discipline and the conduct of meetings are essential parts of day-to-day operations. Administrator Cramer also had a responsibility to follow through on the Garty report.

No Committee member has ever publicly mentioned the Garty Report. It’s never been explicitly identified on a Committee agenda. It’s never been specifically reported on in any regular or executive session minutes. Administrator Cramer also hasn’t ever publicly mentioned the Garty report.

Until the August 2016 release of the February 23, 2015 executive session minutes, there’s never been a hint from the Township that someone independently evaluated aspects of Tabernacle’s fire services. The Township buried the Garty report.

Troubling Conclusions

The Committee’s burial of the Garty Report is troubling for many different reasons.

First, the Committee’s two-year silence about a credible independent examination of the Township’s fire services raises doubts about the Committee’s commitment to improving emergency services.

When the Committee dissolved the Fire District, it said that it would “…promote the professional, efficient, cooperative and effective delivery of all emergency services in the Township.” This hasn’t happened yet and the burial of the Garty report is taking us in the opposite direction.

I have frequently criticized the Committee for its lack of involvement in the management of Tabernacle’s emergency services. The Committee’s sham report on the dissolution of the Fire District, its allowance of the TRS to conduct insurance billing without any oversight and its tolerance of the TRS’s side deal with Shamong Township are recent examples of this. The burial of the Garty report again shows the Committee’s indifference to management of emergency services.

The Garty report was a perfect vehicle for the Committee to improve emergency services, notwithstanding the irony that it was commissioned by the Fire District that the Committee dissolved.

The timing was excellent. The Committee had just taken over responsibility for managing fire services and would soon award a new contract to a fire company.

The Garty report provided the Committee with information that it didn’t gather when it said it investigated the dissolution of the District in 2014 or when it conducted its investigation into emergency services in 2016. Instead of using the report to improve vital public services, the Committee buried it and squandered a $2,625 expenditure.

Second, the Committee’s failure to publicly acknowledge the Garty report again shows that it conducts the public’s business in private. The Committee received the report from the District. Surely Committee members read it. They must have discussed it privately among themselves and decided to bury it because there’s no record that they discussed it publicly or in executive session.

I suppose it’s possible that Committee members read the report but didn’t discuss it privately among themselves, didn’t discuss it publicly and didn’t discuss it in executive session. That would be even worse.

Third, the purpose of public discussion is to allow residents to know what their government is doing. It’s hard to imagine any good reason for burying the Garty report. By taking such extreme measures to hide it, our Committee is suggesting that it buried the report intentionally and for bad reasons.

One explanation that fits the facts is that the Committee buried the report to reward Mr. Vena for circulating the petition to dissolve the Fire District. The dissolution of the District was important to the Committee because it allowed the Township to acquire over $400,000 from the District’s bank accounts.

This money enabled the Committee to plug a hole in its 2015 budget, (but not its 2016 budget) and eliminate the need for a tax increase. Committee members bragged that they didn’t raise taxes in 2015. The one-time cash infusion happened because Mr. Vena circulated the petition, which enabled the Committee to consider the dissolution. Ultimately, the Committee unanimously approved it.

It’s also well documented that the Committee’s stated rationale that the dissolution would create cost savings was a threadbare conclusion based on no documentation. Because the idea of cost savings was little more than a phrase, it stands to reason that there was another purpose for why the Committee wanted to dissolve the District. Gaining control of the District’s money in order to avoid a tax increase seems to be that purpose.

Fourth, the Township’s extraordinary efforts to scramble Ms. Jagiela’s routine OPRA request raises serious questions about the transparency and efficiency of Tabernacle’s government.

How much effort was spent creating the unbelievable story about an unnamed person circumventing the clerk to ask an unnamed committee member at the last minute to have the Committee discuss her OPRA request in executive session so she can withdraw it; but she didn’t withdraw it and the Clerk gave her the requested Garty bill, but not the requested Garty report because it was protected by the attorney-client privilege, until I asked for it?

I’ve commented many times that the Township isn’t handling OPRA requests as the ordinary business that they are. Too often, routine OPRA requests are given to Mr. Lange for review at extra cost. Here, the Township took a molehill of an OPRA request and turned it into a mountain of fabrication.

Committee members have more important things to do. They should spend more time making sure meeting minutes are clear, handling OPRA requests responsibly and properly doing the ordinary business of governance. Yes, that includes managing emergency services.

The Garty report, after all the other recent embarrassing events concerning the fire company and the Tabernacle Rescue Squad, demonstrates again that it’s not enough to let these organizations “run their own show,” as Mr. Franzen says should happen. I believe he expressed the opinion of the entire Committee when he said this. It should be clear by now that Township oversight and management are needed.

Spending taxpayer dollars to hide information that should’ve been used to improve emergency services is shameful, outrageous and dangerous.