Paff v. Lawnside Borough Council

Docket No. CAM-L-7027-06

 

 

Updates:

 

On February 5, 2008, Hon. Francis J. Orlando, A.J.S.C. issued an order that resolved almost all of the outstanding issues in the case. There were five issues outstanding:

1. Whether two sets of the Borough's closed session minutes which recorded, respectively, only that "Discussion re: Personnel matters" and "Personnel Matter re: [illegible]" were "reasonably comprehensible" enough to satisfy the Meetings Act.

2. Whether it is permissible for the Council to meet with a potential "developer" in closed session.

3. Whether three sets of closed session minutes that dealt with developer litigation were too heavily redacted.

4. Whether one set of closed session minutes that dealt with a personnel matter was too heavily redacted.

5. Whether I was the prevailing party and thus entitled to recover the costs of bringing the suit.

On the first matter, Judge Orlando wasn't at all receptive to my adversary's (Matthew B. Wieliczko, of Zeller & Wieliczko, represented the Borough) arguments that the minutes were adequate. He ruled that the minutes needed to be more informative and that the need to keep sensitive material from being seen by the public could be accommodated by redaction and not by excluding the material from the minutes in the first place.

On the second matter, the Borough's lawyer argued that the developers' conversation with the Council needed to be private because "proprietary financial information" or acquisition of property with public funds could be discussed and that developers needed to present their redevelopment plans without other redevelopers being witnesses lest the other redevelopers could steal their ideas.

Judge Orlando stated that it was "at best, unusual" for municipal councils to go into closed session with redevelopers to hear those redevelopers' proposals and called the Borough's position regarding the dangers of developers hearing other developers' proposals "illusory."  He remarked that he saw no reason why a council could not at least listen to a developer's proposal and public, but allowed that there might be certain instances when a developer and the Council might have to privately meet.

He criticized the brevity and lack of specificity of the minutes of the closed sessions that the redevelopers attended, and said that these deficiencies made it impossible for him to determine whether the private meetings that Council had with the redevelopers were proper or improper.  He amended, sua sponte, and granted the relief demanded in the fourth count of my complaint to require more specificity in the Borough Council's closed session minutes rather than banning, per se, the Council's practice of meeting privately with redevelopers.

On the third and fourth issue, Judge Orlando reviewed copies of the unredacted minutes from the bench without allowing me to see them (i.e. an "in camera" inspection). He noted that the meeting minutes were handwritten and that in some cases the handwriting was illegible.

On the third issue, he ruled that the author of one of the sets of minutes (an attorney who no longer is associated with the Borough) needed to submit a certification clarifying and interpreting the minutes' content.  On the other two sets of minutes that are part of the third issue, Judge Orlando ruled that the redactions were properly done.

On the fourth issue--the minutes from which the personnel matter was redacted--Judge Orlando also had a hard time interpreting what the redacted information meant.  He had the Borough's attorney write it down for him so that he could better understand it.  During this process, which was tedious, the attorney decided release the redacted matter to me in order to resolve the issue.

On the fifth issue, Judge Orlando stated that New Jersey abided by the "catalyst" rule and that I was entitled to recover my costs from the Borough because several orders had been entered in my favor and that my lawsuit was the catalyst for producing change in the manner in which Lawnside Borough complied with the Sen. Byron M. Baer Open Public Meetings Act.

 

 

 

Background:

 

On September 5, 2006, I requested that the Lawnside Borough Council send me copies of the resolutions that it passed during 2006 to authorize its nonpublic (i.e. closed or executive) meetings as well as the minutes from those nonpublic meetings.  State law clearly requires that such resolutions be passed (see N.J.S.A. 10:4-13) and that “reasonably comprehensible” minutes be recorded and made “promptly available” to the public (see N.J.S.A. 10:4-14).  Shortly thereafter, the Borough Attorney denied my request for the meeting minutes but provided me public meeting minutes containing some general, non-specific motions that purported to be the resolutions that  authorized the nonpublic meetings

 

I believed that the motions weren't adequate and that it was illegal for the minutes to be totally suppressed.  Therefore, on October 12, 2006, I filed my lawsuit and in late January 2007 I filed my "summary judgment" motion.  (Summary judgment is a way to dispose of a case quickly, without a trial, and is appropriate when there aren’t any factual questions and all that needs to be done is for the judge to apply the law to the facts.)

 

The Borough's attorney provided me with the nonpublic meeting minutes on March 21, 2007, shortly before the date that the summary judgment motion was to be heard, and then argued that his eleventh-hour release of the minutes moots that part of my complaint that demands production of those minutes.  I argued that the minutes provided are redacted (i.e. blacked out) so heavily that they are practically worthless and that the court should not dismiss that part of my case.  (Interestingly, the attorney didn’t provide me with all of the minutes.  The minutes from the June 7, 2006 meeting apparently cannot be located.)

 

On March 30, 2007, Camden County Superior Court Judge Francis J. Orlando heard argument on the case and on April 13, 2007, he granted my motion for summary judgment.  He ordered the Borough Council to a) pass resolutions before going into nonpublic session that described the topics to be discussed in more detail, b) to make the nonexempt parts of its nonpublic meeting minutes available no later than 60 days after a nonpublic meeting, c) to provide him [i.e. Judge Orlando] with unredacted copies of the 2006 nonpublic meeting minutes under seal so that he could see if they really warranted the redactions (this is called an “in camera” review), and d) submit a certification to me and the Court explaining exactly why each redaction was made to the 2006 nonpublic meeting minutes.  Judge Orlando’s Order, an audio recording of the March 30, 2007 hearing and other records are available at the links below.

 

On April 27, 2007, the Borough Council’s lawyer submitted the certification required by the Order.  I objected to the certification because I believed that it was vague and didn’t adequately explain the reasons for the redactions.   On May 10, 2007, I filed a motion to compel the Borough Council to provide a better, more detailed certification.  Also, after reviewing the closed session minutes that were revealed to me on March 21, 2007, I felt that they were illegal in two respects: 1) that they didn’t provide any detail as to what “personnel matters” the Borough Council privately discussed, and 2) that the Borough Council met with prospective land “redevelopers” in nonpublic sessions.  Accordingly, I included within my motion a request to amend my complaint to address these two matters.

 

Despite the Borough Council’s objection, Judge Orlando granted my motion on June 8, 2007.  The signed order, an audio of the proceedings, and other documents are available at the links below.

 

On October 30, 2007, I asked the Court to schedule a hearing on December 7, 2007 at which the nonpublic meeting minutes will be reviewed in camera (i.e. with the judge and Borough's lawyer looking at the unredacted minutes and me looking at the redacted minutes) so that it can be determined which parts that are presently redacted can be publicly disclosed.  On November 16, 2007, Judge Orlando granted my motion, but the in camera review was adjourned to take place at 10 a.m. on Wednesday, January 9, 2008.

 

On November 8, 2007, I filed a motion for summary judgment.  It seeks a final resolution to the third and fourth counts of my Amended Complaint. Those counts, respectively, challenge: 1) the fact that the Borough Council put no detail in its closed session minutes regarding the nature of “personnel matters” privately discussed, and 2) the legality of the Borough Council meeting with prospective land “redevelopers” in nonpublic sessions.  This motion was heard at 10 a.m. on Wednesday, January 9, 2008, and at  the same time, the court also conducted its in camera review of the 2006 closed session minutes.

 

Links to Case Documents and Proceedings:

 

Below are links to a) my summary judgment motion, b) the Borough’s response, and c) my reply to that response. Note that two of the files, the "Certification of John Paff" and the "Certification of the Borough Administrator," are quite large and may take a while to download.  I think that readers will find these certifications interesting, especially because the Administrator's contains the Borough's 2006 nonpublic meeting minutes (which are sloppily written and very brief) that have never before been made public.

 

Court Proceedings

 

An audio recording of the March 30, 2007 hearing before Judge Orlando is on the Internet at

http://www.veotag.com/player/?u=zhxtszyyrj

 

An audio recording of the June 8, 2007 motion hearing before Judge Orlando is on the Internet at

http://www.veotag.com/player/?u=lgxdwaojue

 

 

For the Motion for Summary Judgment

 

Motion for Summary Judgment and Brief  (225 Kb)

 

Certification of John Paff  (3,287 Kb)

 

Borough’s Response to Summary Judgment Motion (88 Kb)

 

Certification of Borough Administrator (2,236 Kb)

 

Reply to Borough’s Response (139 Kb)

 

April 13, 2007 Court Order (111 Kb)

 

For the Motion to Amend Complaint and for Enforcement of Litigants Rights

 

Motion and Brief  (143 Kb)

 

Certification of John Paff  (34 Kb)

 

Exhibits to Certification of John Paff  (2,701 Kb)

 

Borough’s Response to Motion (216 Kb)

 

Reply to Borough’s Response (76 Kb)

 

Proposed Amended Complaint (82 Kb)

 

Exhibits to Proposed Amended Complaint (1,426 Kb)

 

Signed Order (57 Kb)

 

For the Motion to Compel an in camera Inspection

 

Motion and Brief (136 Kb)

 

Certification (51 Kb)

 

Exhibits to Certification (1,587 Kb)

 

Proposed form of Order (63 Kb)

 

Signed Order (52 Kb)

 

For the Motion for Summary Judgment

 

Motion and Brief (166 Kb)

 

Certification (34 Kb)

 

Exhibits to Certification (2,172 Kb)

 

Proposed form of Order (51 Kb)

 

Opposition to Motion (196 Kb)

 

Adversary’s form of Order (161 Kb)

 

My objection to Adversary’s form of Order (120 Kb)

 

Signed Order (87 Kb)

 

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