Topic: COMMUNITY INTEREST
THERE OUTTA BE A LAW
Sunshine Act Violations Continue With Hamilton Leadership
"On Monday, April 6, 2015 2:16 PM, "EGore@hamiltonnj.com" <EGore@hamiltonnj.com> wrote: to a resident
"Emails only began to be saved as of July 6, 2010 so those names that I applied bold to are not available since they left the township in 2008. The names that I put a question mark next to are not township personnel so again we would not have their emails. The remaining names we will search with a keyword to determine if we have any that satisfy the request ."
Sent via the Samsung GALAXY S®4, an AT&T 4G LTE smartphone"
This above text is representative of an email from the Hamilton Township Clerk, Mercer County. This demonstrates how the township deleted all public digital records, including email. There was an OPRA request made for the data during this timeframe and the response on the OPRA request was, all files were deleted. There was no certification performed during the destruction of any of these government records.
The Mayor of Hamilton claims she has an open door policy. Yet, according to residents the town has anything but an open door. Their requests for help from the mayor, directors, council etc, go unanswered. Their doors are not open, they are slammed shut to residents. The residents also state that the $250,000 spent on HAMSTAT is a waste. They are glorified secretaries at HAMSTAT who take messages and attempt to connect you to departments. Why are the departments and employees of Hamilton not held accountable for doing their jobs and answering their phones? Why does the township need to spend a quarter of a million dollars to create a duplication of effort. Residents want to know the answer to these questions.
Public officials who wrongly deny access to open meetings and records face a broad range of consequences, although being slapped with a whopping fine or thrown out of office or into jail are rare. The lack of serious sanctions for secretive behavior leaves many access advocates throwing up their hands.
A recent Kansas Supreme Court ruling is evidence of a reluctance to enforce sanctions for violating open records and meetings laws. After championing the "public policy of making public records open for any person" in one breath, the court's next breath was sweetest to the state agency that unlawfully denied access to public information.
Missouri public officials learned a different lesson when the University of Missouri agreed to pay The Kansas City Star more than $77,000 in legal costs -- the largest known award against a state agency under the Sunshine Law. After five years of stonewalling, the university also allowed access to 10 years of internal audits. (Kansas City Star Co. v. Curators of the University of Missouri)
Florida is one of the few states that make the award automatic, even when officials believe they have a legitimate reason to withhold a document or keep the public out of a meeting. Jon Kaney, general counsel of the state's First Amendment Foundation, said the automatic award encourages compliance by public officers.
"It's simple," Kaney said. "If they don't produce the record before the requester produces a court suit, they are liable for attorney fees."
And if the requester does not have an attorney, the law still demands a liberal interpretation of what is recoverable. On June 11, a District Court of Appeal in Tallahassee upheld awarding a Florida prisoner the costs of postage, envelopes and copying in his quest for public information, even though such expenses are not normally recoverable. (Weeks v. Golden)
At least 25 states have laws that impose a criminal or civil fine for violations of open records laws with maximum fines between $100 and $1,000.
About seven states' statutes also authorize jail time for violations of open records and meetings laws. Potential sentences range from up to 30 days in Arkansas to a maximum of a year in Oklahoma and Florida. As an alternative to jail, Arkansas officials can be ordered to undergo training on access laws.
The shame and embarrassment of jail time for Hamilton officials should be enough to make them want to abide by the law. However, this is not the case. Unless residents launch ethics complaints or complaints to the GRC, these officials get away with breaking the law. Some blatant examples of the Sunshine violations are...
· Agenda's not posted for multiple divisions since Dec 2015
· Minutes from Council meetings not posted since Sept 2015.
· Environmental Commission: Only one agenda from Jan 2015 posted. No minutes.
How is this possible? The residents of Hamilton demand answers. There is not an open government in Hamilton. It is a government of deep dark secrets, hiding everything they can from taxpayers.
A recent email exchange between Hamilton resident, Joanne Bruno and Council Member Ms. Schirmer demonstrated an unacceptable response by a town leader. On May 16, 2016 Ms. Bruno reached out to Councilwoman Schirmer and asked,
" As President of Council, I am sure you have a good, working relationship with the Clerk, Eileen Gore.
As you may remember, I attended the "public workshops" held by Council in April 2016. After the first meeting I realized it was difficult to follow the meeting without having a copy of the line-item budget. I spoke to Eileen Gore to get a copy. She said I could not have a copy and could not OPRA it either explaining it was a "working" document. I let it go for a while and then decided I really wanted to make sense of my notes and could do so even better with that copy. I did OPRA a copy.
In the meantime, as she explained to me recently, she had asked someone about the line-item budget distribution to the public and was told to post it on the township web site. Naturally, I did not know this prior to sending an OPRA request. I received my certified receipt stamped May 3 and waited for a response. At that time I did not realize Eileen had Ms. Sabo respond and must have erased the email Ms. Sabo sent me on the 3rd as I was looking for Gore, not Sabo. I get, as you probably do as well, thousands of emails. I just scan and if I don't recognize the name...delete.
Last week I found out where the line-item budget was located on the web site and now it is fine. Why this lack of correct(ed) information and hesitation?
Now, there is still one other problem. Back in September I wanted to look at something on the July minutes. When I went to the web site, the minutes were only posted to March 2015. I contacted Eileen requesting information on why there were no minutes posted and could I get the July minutes. Eileen spoke to me about the minutes (at a Council meeting) telling me there is a disabled person (blind) who is transcribing the minutes and it takes him/her a long time to do so. I waited for the July minutes to appear.
As I look today, wanting to see the minutes from two weeks ago, the minutes are only posted to September of 2015. I am sure I don't have to tell you, as Council President, that the date is May 2016. We are still months behind when minutes should be read and approved at each meeting from the "prior" meeting of the same month and year! When, if ever, do you think this problem will be corrected?
Sorry, but I have one more request. I also looked for the minutes for both Zoning and Planning Boards. I know you are the Council Liaison for the Planning Board. Can you please tell me why NONE (except February 25) of the minutes for this year are posted for public view? Zoning only has the month of January 2016 minutes posted. I notice the Board Secretary for both is the same person. Is there something wrong with the Secretary or he/she just behind on the work? Again, I thought minutes have to be read and approved from one meeting to the next...not with months in between. I am just curious about what is going on.
Thank you for reading this email and for your anticipated response that will inform me of the issues we seem to be having with meeting minutes being timely and requests for information being given without asking continually. I hope you can get to the bottom of it and hopefully it will get fixed."
On June 1, 2016, Ms. Bruno reached out again the councilwoman due to the fact she received no response. Later that day, the councilwoman did respond. Councilwoman Schirmer said,
" Not all minutes are on-line as fast as you would like them to be simply because our Clerk's department is responsible for many things and do not always have the ability to get the minutes up on time after our council meetings. The minutes that are posted are just summaries of the meetings. You can always OPRA an audio if you would like."
OPRA them? The leadership is required by law to post the agenda's, to post the minutes. Why should residents have to go through the OPRA process? One resident OPRA'd an audio of a Economic development meeting and was told, "Sorry the secretary at the meeting forgot to turn the tape on." How convenient, this exact tape demonstrated Councilwoman Schirmer making disparaging remarks about the BOE in Hamilton. Another resident OPRA's information on a gun range that was built in a residential neighborhood (only for Hamilton police), because all the sudden they were hearing gun fire, and the township responded with, "there is no gun range." It was not until the resident filed a complaint with the GRC did they get the information.
The response of Councilwoman Schirmer is unacceptable. "Not all minutes are put up as fast you would like?" It should not take 10 months to post minutes or agendas Councilwoman Schirmer. It's no wonder Hamilton is in the shape its in with leadership performing in such a manner. To have such a complacent attitude about the law and her responsibility as a member of council, should airlift her out of her council seat and the 4 year term seat she wants as a member of Mercer County's Committee.
Ms. Bruno did not end her discussion there. She pushed back on Councilwoman Schirmer's response and is holding her accountable. She asked Councilwoman Schirmer,
"It is my suggestion that as part of Ms. Gore's role as clerk she should be paying better attention to the posting of the minutes as they are an official record of the council meetings. I think you will agree that 10 months is a long time. A time period should be set when minutes can be prepared and posted, i.e. within 6 - 8 weeks. It is not reasonable to offer residents an option of getting an audio of the minutes when they are 10 months behind and are accessible by the web page or should be.
Also, what is the problem with the Planning and Zoning Boards posting their minutes?
The township officials are breaking the law. Why are they able to break the law and not be held accountable? This is a question for the GCR and the Attorney General's office of NJ. On June 7th you can make your decision on whether or not Councilwoman Schirmer deserves a seat on the county committee. Let your voices be heard.
THE GOVERNMENT IN THE SUNSHINE ACT
5 U.S.C. § 552b
§ 552b. Open meetings
(a) For purposes of this section-(
1) the term "agency" means any agency, as defined in section 552(f) of this title, headed by a
collegial body composed of two or more individual members, a majority of whom are appointed to
such position by the President with the advice and consent of the Senate, and any subdivision
thereof authorized to act on behalf of the agency;
(2) the term "meeting" means the deliberations of at least the number of individual agency
members required to take action on behalf of the agency where such deliberations determine or
result in the joint conduct or disposition of official agency business, but does not include deliberations
required or permitted by subsection (d) or (e); and
(3) the term "member" means an individual who belongs to a collegial body heading an agency.
(b) Members shall not jointly conduct or dispose of agency business other than in accordance with this
section. Except as provided in subsection (c), every portion of every meeting of an agency shall be open to
(c) Except in a case where the agency finds that the public interest requires otherwise, the second sentence
of subsection (b) shall not apply to any portion of an agency meeting, and the requirements of subsections
(d) and (e) shall not apply to any information pertaining to such meeting otherwise required by
this section to be disclosed to the public, where the agency properly determines that such portion or
portions of its meeting or the disclosure of such information is likely to-(
1) disclose matters that are (A) specifically authorized under criteria established by an Executive
order to be kept secret in the interests of national defense or foreign policy and (B) in fact properly
classified pursuant to such Executive order;
(2) relate solely to the internal personnel rules and practices of an agency;
(3) disclose matters specifically exempted from disclosure by statute (other than section 552 of this
title), provided that such statute (A) requires that the matters be withheld from the public in such
a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding
or refers to particular types of matters to be withheld;
(4) disclose trade secrets and commercial or financial information obtained from a person and
privileged or confidential;
(5) involve accusing any person of a crime, or formally censuring any person;
(6) disclose information of a personal nature where disclosure would constitute a clearly unwarranted
invasion of personal privacy;
(7) disclose investigatory records compiled for law enforcement purposes, or information which if
written would be contained in such records, but only to the extent that the production of such
records or information would (A) interfere with enforcement proceedings, (B) deprive a person of a
right to a fair trial or an impartial adjudication, (C) constitute an unwarranted invasion of personal
privacy, (D) disclose the identity of a confidential source and, in the case of a record compiled by a
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criminal law enforcement authority in the course of a criminal investigation, or by an agency
conducting a lawful national security intelligence investigation, confidential information furnished
only by the confidential source, (E) disclose investigative techniques and procedures, or (F) endanger
the life or physical safety of law enforcement personnel;
(8) disclose information contained in or related to examination, operating or condition reports
prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of
(9) disclose information the premature disclosure of which would-(
A) in the case of an agency which regulates currencies, securities, commodities, or
financial institutions, be likely to (i) lead to significant financial speculation in currencies,
securities, or commodities, or (ii) significantly endanger the stability of any financial
(B) in the case of any agency, be likely to significantly frustrate implementation of a
proposed agency action.
except that subparagraph (B) shall not apply in any instance where the agency has already disclosed
to the public the content or nature of its proposed action, or where the agency is required by
law to make such disclosure on its own initiative prior to taking final agency action on such
(10) specifically concern the agency's issuance of a subpoena, or the agency's participation in a
civil action or proceeding, an action in a foreign court or international tribunal, or an arbitration,
or the initiation, conduct, or disposition by the agency of a particular case of formal agency
adjudication pursuant to the procedures in section 554 of this title or otherwise involving a
determination on the record after opportunity for a hearing.
(d)(1) Action under subsection (c) shall be taken only when a majority of the entire membership of the
agency (as defined in subsection (a)(1)) votes to take such action. A separate vote of the agency members
shall be taken with respect to each agency meeting a portion or portions of which are proposed to be closed
to the public pursuant to subsection (c), or with respect to any information which is proposed to be withheld
under subsection (c). A single vote may be taken with respect to a series of meetings, a portion or
portions of which are proposed to be closed to the public, or with respect to any information concerning
such series of meetings, so long as each meeting in such series involves the same particular matters and is
scheduled to be held no more than thirty days after the initial meeting in such series. The vote of each
agency member participating in such vote shall be recorded and no proxies shall be allowed.
(2) Whenever any person whose interests may be directly affected by a portion of a meeting
requests that the agency close such portion to the public for any of the reasons referred to in
paragraph (5), (6), or (7) of subsection (c), the agency, upon request of any one of its members,
shall vote by recorded vote whether to close such meeting.
(3) Within one day of any vote taken pursuant to paragraph (1) or (2), the agency shall make
publicly available a written copy of such vote reflecting the vote of each member on the question.
If a portion of a meeting is to be closed to the public, the agency shall, within one day of the vote
taken pursuant to paragraph (1) or (2) of this subsection, make publicly available a full written
explanation of its action closing the portion together with a list of all persons expected to attend
the meeting and their affiliation.
(4) Any agency, a majority of whose meetings may properly be closed to the public pursuant to
paragraph (4), (8), (9)(A), or (10) of subsection (c), or any combination thereof, may provide by
regulation for the closing of such meetings or portions thereof in the event that a majority of the
members of the agency votes by recorded vote at the beginning of such meeting, or portion thereof,
to close the exempt portion or portions of the meeting, and a copy of such vote, reflecting the vote
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of each member on the question, is made available to the public. The provisions of paragraphs (1),
(2), and (3) of this subsection and subsection (e) shall not apply to any portion of a meeting to
which such regulations apply: Provided, That the agency shall, except to the extent that such
information is exempt from disclosure under the provisions of subsection (c), provide the public
with public announcement of the time, place, and subject matter of the meeting and of each
portion thereof at the earliest practicable time.
(e)(1) In the case of each meeting, the agency shall make public announcement, at least one week before
the meeting, of the time, place, and subject matter of the meeting, whether it is to be open or closed to the
public, and the name and phone number of the official designated by the agency to respond to requests for
information about the meeting. Such announcement shall be made unless a majority of the members of
the agency determines by a recorded vote that agency business requires that such meeting be called at an
earlier date, in which case the agency shall make public announcement of the time, place, and subject
matter of such meeting, and whether open or closed to the public, at the earliest practicable time.
(2) The time or place of a meeting may be changed following the public announcement required
by paragraph (1) only if the agency publicly announces such change at the earliest practicable time.
The subject matter of a meeting, or the determination of the agency to open or close a meeting, or
portion of a meeting, to the public, may be changed following the public announcement required
by this subsection only if (A) a majority of the entire membership of the agency determines by a
recorded vote that agency business so requires and that no earlier announcement of the change
was possible, and (B) the agency publicly announces such change and the vote of each member
upon such change at the earliest practicable time.
(3) Immediately following each public announcement required by this subsection, notice of the
time, place, and subject matter of a meeting, whether the meeting is open or closed, any change in
one of the preceding, and the name and phone number of the official designated by the agency to
respond to requests for information about the meeting, shall also be submitted for publication in
the Federal Register.
(f)(1) For every meeting closed pursuant to paragraphs (1) through (10) of subsection (c), the General
Counsel or chief legal officer of the agency shall publicly certify that, in his or her opinion, the meeting
may be closed to the public and shall state each relevant exemptive provision. A copy of such certification,
together with a statement from the presiding officer of the meeting setting forth the time and place of
the meeting, and the persons present, shall be retained by the agency. The agency shall maintain a
complete transcript or electronic recording adequate to record fully the proceedings of each meeting, or
portion of a meeting, closed to the public, except that in the case of a meeting, or portion of a meeting,
closed to the public pursuant to paragraph (8), (9)(A), or (10) of subsection (c), the agency shall maintain
either such a transcript or recording, or a set of minutes. Such minutes shall fully and clearly describe all
matters discussed and shall provide a full and accurate summary of any actions taken, and the reasons
therefor, including a description of each of the views expressed on any item and the record of any rollcall
vote (reflecting the vote of each member on the question). All documents considered in connection with
any action shall be identified in such minutes.
(2) The agency shall make promptly available to the public, in a place easily accessible to the
public, the transcript, electronic recording, or minutes (as required by paragraph (1)) of the
discussion of any item on the agenda, or of any item of the testimony of any witness received at the
meeting, except for such item or items of such discussion or testimony as the agency determines to
contain information which may be withheld under subsection (c). Copies of such transcript, or
minutes, or a transcription of such recording disclosing the identity of each speaker, shall be furnished
to any person at the actual cost of duplication or transcription. The agency shall maintain a
complete verbatim copy of the transcript, a complete copy of the minutes, or a complete electronic
recording of each meeting, or portion of a meeting, closed to the public, for a period of at least two
years after such meeting, or until one year after the conclusion of any agency proceeding with
respect to which the meeting or portion was held, whichever occurs later.
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(g) Each agency subject to the requirements of this section shall, within 180 days after the date of
enactment of this section, following consultation with the Office of the Chairman of the Administrative
Conference of the United States and published notice in the Federal Register of at least thirty days and
opportunity for written comment by any person, promulgate regulations to implement the requirements of
subsections (b) through (f) of this section. Any person may bring a proceeding in the United States
District Court for the District of Columbia to require an agency to promulgate such regulations if such
agency has not promulgated such regulations within the time period specified herein. Subject to any
limitations of time provided by law, any person may bring a proceeding in the United States Court of
Appeals for the District of Columbia to set aside agency regulations issued pursuant to this subsection that
are not in accord with the requirements of subsections (b) through (f) of this section and to require the
promulgation of regulations that are in accord with such subsections.
(h)(1) The district courts of the United States shall have jurisdiction to enforce the requirements of
subsections (b) through (f) of this section by declaratory judgment, injunctive relief, or other relief as may
be appropriate. Such actions may be brought by any person against an agency prior to, or within sixty days
after, the meeting out of which the violation of this section arises, except that if public announcement of
such meeting is not initially provided by the agency in accordance with the requirements of this section,
such action may be instituted pursuant to this section at any time prior to sixty days after any public
announcement of such meeting. Such actions may be brought in the district court of the United States for
the district in which the agency meeting is held or in which the agency in question has its headquarters, or
in the District Court for the District of Columbia. In such actions a defendant shall serve his answer
within thirty days after the service of the complaint. The burden is on the defendant to sustain his action.
In deciding such cases the court may examine in camera any portion of the transcript, electronic recording,
or minutes of a meeting closed to the public, and may take such additional evidence as it deems
necessary. The court, having due regard for orderly administration and the public interest, as well as the
interests of the parties, may grant such equitable relief as it deems appropriate, including granting an
injunction against future violations of this section or ordering the agency to make available to the public
such portion of the transcript, recording or minutes of a meeting as is not authorized to be withheld under
subsection (c) of this section.
(2) Any Federal court otherwise authorized by law to review agency action may, at the application
of any person properly participating in the proceeding pursuant to other applicable law, inquire into
violations by the agency of the requirements of this section and afford such relief as it deems
appropriate. Nothing in this section authorizes any Federal court having jurisdiction solely on the
basis of paragraph (1) to set aside, enjoin, or invalidate any agency action (other than an action to
close a meeting or to withhold information under this section) taken or discussed at any agency
meeting out of which the violation of this section arose.
(i) The court may assess against any party reasonable attorney fees and other litigation costs reasonably
incurred by any other party who substantially prevails in any action brought in accordance with the
provisions of subsection (g) or (h) of this section, except that costs may be assessed against the plaintiff
only where the court finds that the suit was initiated by the plaintiff primarily for frivolous or dilatory
purposes. In the case of assessment of costs against an agency, the costs may be assessed by the court
against the United States.
(j) Each agency subject to the requirements of this section shall annually report to the Congress regarding
(1) The changes in the policies and procedures of the agency under this section that have
occurred during the preceding 1-year period.
(2) A tabulation of the number of meetings held, the exemptions applied to close meetings, and
the days of public notice provided to close meetings.
(3) A brief description of litigation or formal complaints concerning the implementation of this
section by the agency.
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(4) A brief explanation of any changes in law that have affected the responsibilities of the agency
under this section.
(k) Nothing herein expands or limits the present rights of any person under section 552 of this title,
except that the exemptions set forth in subsection (c) of this section shall govern in the case of any request
made pursuant to section 552 to copy or inspect the transcripts, recordings, or minutes described in
subsection (f) of this section. The requirements of chapter 33 of Title 44, United States Code, shall not
apply to the transcripts, recordings, and minutes described in subsection (f) of this section.
(l) This section does not constitute authority to withhold any information from Congress, and does not
authorize the closing of any agency meeting or portion thereof required by any other provision of law to be
(m) Nothing in this section authorizes any agency to withhold from any individual any record, including
transcripts, recordings, or minutes required by this section, which is otherwise accessible to such individual
under section 552a of this title.
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