Tabernacle has admitted in Superior Court that it violated the Open Public Records Act (OPRA). It also admitted that it’s been violating the Open Public Meetings Act (OPMA). These aren’t surprising admissions for those who have been watching.
In the consent order to settle this complaint, which I filed in May 2018, Tabernacle agreed to make a number of wide-ranging changes. The township will adopt an ordinance to govern the management and release of closed session minutes (aka executive session minutes). The township clerk will retract statements that describe OPRA requests as harassment. The township has already removed a negative statement about OPRA from its official website.
In addition, Technical Assistant Lisa Love Cummins accepted a civil penalty for “knowingly and willfully” not filing months of public records, making them irretrievable by staff and inaccessible to the public.
Lastly, the township agreed to pay $13,500 for my legal fees because I proved that the township withheld public records. This cost is in addition to the amount Tabernacle Township will pay Attorney Peter Lange.
When Rick Franzen was a committeeman, he likened OPRA attorneys to ambulance chasers, because, if they win, the township pays their legal fees. In my experience, the analogy to ambulance chasers more closely fits township attorneys. They get paid more if they litigate; they get paid whether the township wins or loses; and their fees aren’t reviewed and approved by a judge.
Here’s a review of the case and my comments.
Regarding the Open Public Meetings Act, the township was ordered to make its approved closed session minutes promptly available to the public as set forth in the OPMA and applicable case law. Minutes from January 1, 2017 forward are to be placed on the township website promptly upon adoption and approval, redacted or unredacted, as appropriate. More on this below.
Tabernacle’s practice has been to hold approved closed session minutes indefinitely until someone asks for them. Sometimes they were held for almost a year or more. I suppose that if no one ever asked for them, they’d still be unreleased.
When I submitted an OPRA request for the approved closed session minutes, the clerk still wouldn’t release them. Instead, she placed them on the committee’s agenda for a second, separate vote to release them. If the committee approved them for release, the clerk would then release them.
Tabernacle’s process of holding approved minutes, then convening a second vote to release them, violates the OPMA and the OPRA. Minutes become the official public record immediately upon their approval. The approval establishes that they are the official record of what transpired. Minutes can’t be held indefinitely or subjected to a separate vote for release. The public has a right to promptly receive this official public record upon its approval.
An exception to this rule concerns ongoing matters that are discussed in closed session but aren’t completed. If there’s an ongoing matter in closed session, such as the contract with the TRS, which was stretched out over two years in closed session meetings, the minutes of that ongoing matter should be redacted from the approved minutes. Otherwise, the confidentiality of the ongoing discussion would be exposed.
But the minutes of any completed matters that are discussed at the same closed session must be released. Completed matters can’t remain hidden just because they were discussed in the same closed session as an ongoing matter.
In order to insure that Tabernacle has a method for keeping track of what’s completed and what’s still ongoing, it was ordered to adopt an ordinance to review the closed session minutes quarterly to identify the completed matters. Minutes of the completed closed session matters will be fully released without redactions and placed on the township website.
As to the OPRA violations, these were some of most egregious violations I’ve seen in Tabernacle since I started writing The Tabernacle Journal six years ago.
The OPRA problems surfaced when Clerk Barber sent me documents that were previously withheld. These concerned Resolution 2018-40, which the committee illegally adopted February 26, 2018 and later rescinded after I filed suit in Superior Court.
The resolution authorized my neighbor, Jay Hall and Krystal Gerber Hall, to place a temporary trailer on their property, hook it into an old cesspool; and live in the trailer as their primary residence. The cesspool was built around 1930; it hadn’t been used for many years; it hadn’t been inspected; and it was located in a wetlands buffer area. These conditions raised obvious concerns about ground water pollution. But the committee said nothing about water quality and promptly passed the resolution.
Tabernacle’s ordinances prohibit the use of a temporary trailer as a residence. Anyone with basic training or experience in municipal land use knows that this should have been brought to the Land Development Board as an application for a variance. A public hearing should have been held. And the public would have had an opportunity to ask questions about water quality, the waste disposal system or anything else having to do with the variance application.
Tabernacle Township Attorney Peter Lange had to know that a variance was required and that the resolution violated the State Municipal Land Use Law. After all, he’s been Shamong Township’s land use attorney for years. But he allowed the committee to vote on it. He probably reviewed the resolution in advance.
Tabernacle’s Zoning Officer Tom Boyd knew that the township ordinance forbids trailers from being placed on property for temporary living. But instead of telling the Halls that a variance was required, Mr. Boyd advised them to write a letter to the township committee requesting permission. Mr. Boyd also accepted a zoning application from the Halls for the trailer and hookup in February 2018. But didn’t take the required application fee.
Mr. Boyd also had to know that the resolution violated the State Municipal Land Use Law. He is the township’s official zoning expert. He’s responsible to handle all township zoning questions. He answers zoning questions everyday. But he went along with the plan to handle the temporary trailer by the improper resolution.
Township Administrator Doug Cramer also had to know that a variance was required. He’s been township administrator and member of the Land Development Board for a long time. He said that the township had a history of handling issues like this. But he’s never produced any written policy. Nor did the resolution ever refer to such a policy. If there was a township policy, the resolution would have referred to it in order to support the authority of the resolution. Most importantly, a township can’t casually decide to make up a policy that violates the State Municipal Land Use Law.
The only policy that seems to be at work here is the unofficial and unacceptable policy of the Tabernacle committee and its employees being free and easy with friends and family, while requiring ordinary citizens to follow township ordinances.
I wanted to see how Tabernacle bypassed its land use ordinance. How did the township attorney, zoning officer and township administrator not require a variance where it’s so clearly required? Why didn’t the LDB take control of a matter that was obviously and exclusively under its jurisdiction?
During three successive months, beginning on February 15, 2018, I submitted OPRA requests for all documents, including applications and correspondence, regarding the Hall property. I made these rolling requests because I wanted to be sure that I received any new submissions.
I identified the property by block & lot because I knew that the construction office filed its papers by block & lot. Municipalities throughout the state routinely identify property by block & lot. The illegal resolution also identified the property by block & lot and the Hall’s name.
None of my OPRA requests flushed out the February 6, 2018 Hall letter or the Hall’s zoning application. The township didn’t give me the letter until May 9, 2018. This was after the 45-day appeal period for the first OPRA request expired.
I didn’t receive the Hall’s zoning application until August 6, 2018. After receiving the zoning permit, I asked why I hadn’t received the zoning application. The construction office said they had no way of tracking it. I then had to ask how they could issue permits with consecutive numbers without having a way of keeping track of the applications. Then they found the application and gave it to me.
The clerk’s office received the Hall letter on February 12, 2018. It received my first OPRA request on February 15. Clerk Barber obtained the block & lot information and included in Resolution 2018-40, which she drafted for the February 26 meeting. She probably conferred with Administrator Cramer and Township Attorney Peter Lange while she was drafting the resolution and after it was completed. She also created the draft agenda for the February 26, 2018 meeting; she attended the meeting and drafted the minutes of the meeting.
When Clerk Barber was asked why she didn’t reach into her files and give me the Hall letter when I asked for documents regarding “Block 2002, Lot 11.01,” she said she doesn’t file letters by block & lot and “couldn’t equate” my OPRA request to the name and address in the letter.
Okay. But why didn’t she equate her resolution regarding “Block 2002, Lot 11.01” – which was all about the Hall letter – with my OPRA request regarding “Block 2002, Lot 11.01”?
It’s shocking that Ms. Barber couldn’t remember that she had been working closely with the Hall letter just days before and after my OPRA request. She received the Hall letter on February 12. Three days later, on February 15, she received my OPRA request. Around this time she went out and got the block & lot of the Hall property to plug into her draft Resolution 2018-40 (because the Hall letter didn’t identify the property by block & lot). On February 27, less than 24 hours after Resolution 2018-40 was adopted, she responded to my OPRA request but didn’t include the Hall letter.
It’s also disappointing that the clerk’s office isn’t able to access files referenced by block & lot. That’s the standard way all municipalities refer to properties. A correspondence log should identify this basic information.
Not being able to “equate” my OPRA request regarding “Block 2002, Lot 11.01” with the Hall letter, Clerk Barber sent my February 15 OPRA request to Lisa Love Cummins, the technical assistant in the construction office, and others. The clerk relied on their responses. This is the same process followed for my later OPRA requests.
Ms. Love Cummins is responsible for filing the documents that come into the construction office. All of the files are organized by block & lot. If anyone is looking for papers regarding a particular property, they are accessed by block & lot. Electronic files, such as the ones for permits and applications, can be searched differently, but they weren’t searched for my OPRA requests.
Although I asked for documents regarding “Block 2002, Lot 11.01,” the problem was that Ms. Love Cummins hadn’t been filing the documents. She was piling them up in a “holding bin” along with about 1,000 pages of other records. The holding bin was a dead zone of public documents, unavailable to everyone – even the employees of the office. Apparently, the Hall letter sat in the bin for about three months; the zoning application sat there for about seven. That’s how long it took for me to get them.
Construction Official Thomas Boyd manages the construction office. He sits in the same room as Ms. Love Cummins, about five feet away. Did he not see that papers were piling up and had not been filed for at least three months? He recommended Ms. Love for the award of 2018 State of New Jersey Technical Assistant of the Year. And she won!
Tabernacle issued the following congratulatory announcement, which appears on Tabernacle’s official website.
After years of hard work, dedication and discipline,
you won this award that you very much deserve.
You have inspired the rest of the Tabernacle Team!!
We are all proud of you!!!! Congratulations!
Mr. Boyd, apparently, didn’t establish thorough procedures for addressing OPRA requests. It’s also apparent that neither Township Clerk La Shawn Barber nor Township Administrator Doug Cramer established thorough procedures.
Ms. Love Cummins was left to handle OPRA requests as she saw fit. She simply pulled the block & lot file but didn’t search the holding bin, the office database or check her emails, which I asked for.
OPRA has existed since 2001. After six years of unsuccessful OPRA litigation, the township committee should’ve insisted on better procedures and set goals for compliance. Tabernacle pays Township Administrator Doug Cramer over $104,000 annually. Mr. Boyd earns almost $94,000. Clerk Barber earns almost $66,000. Lisa Love earns almost $43,000 (Asbury Park Press Data Universe, 2019). Tabernacle taxpayers, this is your tax dollars and government at work!
Ms. Love Cummins admitted that she “knowingly and willfully” failed to file documents, thereby preventing public access to them. She accepted a penalty of a $1,000. According to my attorney’s research, in the 18-year history of OPRA, only 12 penalties have ever been levied in the entire state. It’s that rare. The standard for proving a “knowing and willful” penalty is the highest standard in civil cases.
At the June 24 meeting, the township committee voted to indemnify Ms. Love Cummins and have the township pay her fine. I understand that Tabernacle is loyal to its employees. That’s generally a good quality. But there are limits.
Employers should reasonably expect their employees to do what they are paid to do. Filing documents is part of what Ms. Love Cummins is paid to do. An office can’t function when so many documents are out of place and inaccessible.
Failing to supervise someone who’s not doing the required filing also goes beyond the limit. The fact that Mr. Boyd nominated Ms. Love Cummins for “Tech Assistant of the Year” instead of promptly correcting her behavior is bizarre, ironic, and disgraceful.
Indemnifying Ms. Love Cummins goes even further beyond the limit. The committee justified indemnification by saying “…her actions did not constitute actual fraud, actual malice, willful misconduct or an intentional wrong.” That’s an extraordinarily low standard for employee performance.
By indemnifying Ms. Love Cummins, the committee made taxpayers overpay her twice. Taxpayers paid her a salary for not doing her job. Then taxpayers will pay her fine for not doing her job. It’s a reward for not doing her job.
While this case was pending and the penalty was being discussed, the committee gave all township employees a uniform 2% pay raise. Thoughtful employers give raises based on some standard of merit or performance.
There’s little merit in “knowingly and willfully” failing to do your job, failing to recognize when a basic land use variance is required, failing to set procedures that methodically address OPRA requests or failing to establish a correspondence log that tracks the universal property identifier – block & lot numbers.
Another noteworthy part of the OPRA consent order is its requirement that Clerk Barber retract her written statements that characterize OPRA as “harassment” and remove language from the official website that describes OPRA as a time consuming drain on township resources.
By law, the township clerk is the official custodian of records. OPRA tasks the custodian with the responsibility for compliance. Whatever Clerk Barber’s personal opinions about OPRA might be, she has an official duty to comply with the law. Her official statements describing OPRA as harassment and a drain on resources are improper for a position of such public trust and responsibility.
Clerk Barber produced her “OPRA Harassment Log” for the depositions in this case. Her log highlights each of the OPRA requests that I submitted to the township over the past few years; just mine; no one else’s!
The Clerk said she created the Harassment Log because, to her, the extent of my OPRA requests feels like harassment even though she knows that I have always offered extensions or consented to every extension that she has asked for. Moreover, every OPRA I submit is purposeful. I use the records I receive to write The Tabernacle Journal and analyze local government.
All too often my work shows that Tabernacle is in violation of the OPRA and the OPMA. The fact that Tabernacle has lost all nine of my OPRA lawsuits demonstrates unequivocally that Tabernacle’s real attitude towards transparency and accountability isn’t expressed by the high falutin’ bromides that they speak at meetings and place in their ordinances. For example, a recent proposed ordinance says this:
Whereas the Tabernacle Township Committee recognizes the value of open government and is dedicated to the faithful adherence to the right to inspect and copy public records enjoyed by the public pursuant to the Open Public Records Act…
I got no enjoyment sending three OPRA requests over three months to get the Hall letter that Clerk Barber had in her files and was working closely with just days before I asked for it and that Ms. Love Cummins had placed in a dead zone. Nor was it a joy to be told that the township couldn’t identify the application for a zoning permit that it had previously issued and entered into its electronic data base but didn’t initially charge a fee for.
The township’s recently deleted website posting is also extraordinary because it faintly praises OPRA, but complains about having to comply with it. “The intent of OPRA is good; however…it’s financially draining township resources, …the process is often very time consuming… [and] it creates a time constraint on our schedules.”
These statements show Tabernacle’s core values about OPRA. They have little to do with transparency, accountability and compliance.
For example, I assume that Township Attorney Peter Lange was involved in preparing Ms. Barber for depositions because that’s an important and typical part of an attorney’s job. If he prepared her, he surely would have recognized how damaging it would be to portray OPRA requests as harassment. But it was more important to allow the Clerk to gripe about OPRA than to show her how to comply with OPRA.
Surely the time spent withholding the Hall letter and the zoning application, and then litigating over it, could have been used more productively.
As for the whiny statement about OPRA on Tabernacle’s official website, surely someone reviewed this before it was posted. But it was more important to grouse about OPRA than it was to mention OPRA’s higher purposes and comply with state law.
Imagine the difference if Tabernacle’s official website quoted from the New Jersey Appellate Court’s decision in Fair Share Housing, Inc. vs. New Jersey State League of Municipalities (2011).
Those who enacted OPRA understood that knowledge is power in a democracy, and that without access to information contained in records maintained by public agencies citizens cannot monitor the operation of our government or hold public officials accountable for their actions.
If that language didn’t fit Tabernacle’s style, it could have quoted Jesse, “the body” and “the mind” Ventura, WWE Hall of Fame member and former governor of Minnesota. He expressed opinions that could’ve easily fit with OPRA’s goals:
There is much more to being a patriot and a citizen than reciting the pledge or raising a flag.
But these thoughts don’t match Tabernacle’s attitude towards OPRA. Tabernacle has always leaned away from compliance and towards litigation. That’s why this committee is regularly embroiled in OPRA cases and regularly loses them.
Tabernacle’s current solution to its OPRA problem is to budget an extra $13,000 for a special OPRA counsel in the 2019 budget. Lawyers always like it when their budget increases.
I suggested that the money would be better spent on OPRA training and compliance. And if our clerk, township attorney, administrator, construction official and tech assistant can’t get it right, then they should be fired. Certainly refresher courses on timely filing, the use of databases and the development of uniform policies on OPRA compliance would be useful.