Settlement agreements entered into by governmental agencies are public documents. That is well-established. (See our Knowledge Corner HERE.) This OPRA case is interesting in that it concerns disclosure of the terms of the settlement before its final drafting and adoption by the governing body. – NJFOG
December 2, 2015 (updated 12/3/15)
By Richard Cowen
staff writer | The Record | NorthJersey.com
(full article here and re-posted below)
Passaic County has settled a whistleblower lawsuit filed by a sheriff’s officer who claims he was demoted while investigating allegations of voter fraud lodged against the former acting sheriff, Charles Meyers.
But the county has refused to disclose the terms of the settlement — which has prompted another lawsuit, this time by a citizen-activist who believes government has an obligation to tell the public how it is spending taxpayer money.
John Paff, a Somerset County resident, is seeking the terms of the settlement in a civil rights case, Walton vs. County of Passaic, which was resolved in U.S. District Court on Oct. 9. Matthew Jordan, Passaic County’s custodian of records, recently denied the request, telling Paff in a letter that the agreement had not been “formalized.”
Paff filed a lawsuit last week in Passaic County Superior Court claiming the county violated the state’s Open Public Records Act (OPRA). He wants the county to hand over all records concerning the settlement, including any communications between the government and third parties, such as lawyers and insurance carriers, before the agreement is approved by the freeholder board.
Jordan did not return a phone call seeking comment on Wednesday. But in his email responses to Paff, which are contained in the lawsuit, Jordan says that while it is “possible” that there has been “correspondence” between the county’s lawyer and others handling the case, those communications do not constitute a government “record” as defined by OPRA. He also claims that communications between a government agency and its insurance carrier are confidential and not subject to the state’s public records law.
Paff’s attorney, Richard M. Gutman said the settlement was already reported in U.S. District Court on Oct. 9.
“The public needs to know as soon as possible, before the governing body acts on it,” Gutman said. “It’s the government officials who are spending the people’s money. The public officials are working for the people.”
Passaic County spokesman Keith Furlong said there was only a verbal agreement on the settlement, with nothing put in writing. He said the terms of the settlement will be made public when the freeholders vote on it, in accordance with county policy.
Paff’s lawsuit argues that withholding the terms of the settlement is a violation of the First Amendment.
“This lawsuit involves the situation in which the opposing lawyers have agreed on the terms of the settlement, the county’s lawyer has agreed to recommend that settlement to the county’s governing body and the opposing lawyers have informed the court the case has been settled,” the suit says. “The public and the media have a need to know as soon as possible the settlement terms to effectively exercise their First Amendment rights prior to the governing body’s vote. This need-to-know increases if the settlement involves the expenditure of taxpayer funds.”
A hearing is scheduled for Jan. 28 before Judge Thomas F. Brogan in Passaic County Superior Court.
The settlement that Paff is seeking involves a lawsuit filed in October of 2010 by Sgt. Daryl Walton of the Passaic County Sheriff’s Department. Walton was assigned to the Internal Affairs unit.
Charles Meyers was acting sheriff at the time, having taken command of the department after Jerry Speziale resigned to take a job with the Port Authority of New York and New Jersey. An election for sheriff was held that November, with Democrat Richard H. Berdnik squaring off against Republic Felix Garcia.
Meyers had long been active in the Passaic County Democratic Committee. He owned a house in Montville in Morris County and maintained an apartment in Paterson.
In his lawsuit, Walton claims he was removed from Internal Affairs after he began investigating allegations that Meyers had committed voter fraud by casting ballots in several Passaic County elections. Walton claimed that in retaliation for looking into Meyers he was reassigned to a non-existent job in the Criminal Investigations division, where he took a pay cut from $3,956 every two weeks to $3,777.
No charges of voter fraud were ever brought against Meyers, who has since left the sheriff’s department. Walton remains with the department and is now a lieutenant with a base salary of $122,000, payroll records show.
Paff is a Libertarian and activist for open government who routinely files lawsuits under the Open Public Records Act. Earlier this year, he filed an ethics complaint against Passaic County freeholder Ronda Cotroneo for failing to file her annual financial disclosure form with the state, which is required of elected officials. The Passaic County Ethics Board sustained the complaint, but ruled that Cotroneo simply forgot to file and didn’t fine her.