Libertarians for Transparent Gov't v. Cumberland Cnty.

• Decision Date: 04 September 2020
• Docket Number: DOCKET NO. A-1661-18T2
• Citation: 465 N.J.Super. 11,238 A.3d 1135
• Parties: LIBERTARIANS FOR TRANSPARENT GOVERNMENT, a NJ Nonprofit Corporation, Plaintiff-Respondent, v. CUMBERLAND COUNTY and Blake Hetherington in her official capacity as Custodian of Records for Cumberland County, Defendants-Appellants.
• Court: New Jersey Superior Court — Appellate Division

465 N.J.Super. 11

238 A.3d 1135

LIBERTARIANS FOR TRANSPARENT GOVERNMENT, a NJ Nonprofit Corporation, Plaintiff-Respondent,

v.CUMBERLAND COUNTY and Blake Hetherington in her official capacity as Custodian of Records for Cumberland County, Defendants-Appellants.

DOCKET NO. A-1661-18T2

Superior Court of New Jersey, Appellate Division.

Argued November 13, 2019

Decided September 4, 2020

Melissa D. Strickland, Assistant County Counsel, argued the cause for appellants (Theodore E. Baker, County Counsel, attorney; Melissa D. Strickland, on the brief).

Michael J. Zoller, Hackensack, argued the cause for respondent (Pashman Stein Walder Hayden, PC, attorneys; CJ Griffin, of counsel and on the brief).

Before Judges Fisher, Accurso and Gilson.

The opinion of the court was delivered by

ACCURSO, J.A.D.

The central issue on this appeal is whether a settlement agreement between defendant Cumberland County and a former County employee resolving a preliminary notice of disciplinary action (PNDA) against the employee is a government record under N.J.S.A. 47:1A-10 (section 10) of the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, the exemption for personnel records. We hold a settlement agreement resolving an internal disciplinary action against a public employee is not classified as a government record under OPRA, but instead is a personnel record exempt from disclosure under section 10 of the statute. We, accordingly, reverse the trial court order that held to the contrary, and remand for the court to consider whether plaintiff Libertarians for Transparent Government is entitled to the settlement agreement, either in whole or in part, under the common law right of access to public records, see Bergen Cty. Improvement Auth. v. N. Jersey Media Grp., Inc., 370 N.J. Super. 504, 520, 851 A.2d 731 (App. Div. 2004).

The essential facts are easily summarized. Libertarians obtained minutes of the March 12, 2018 Board Meeting of the Police and Fireman's Retirement System, reflecting the Board's consideration of an application for special retirement by Tyrone Ellis, a corrections officer employed by Cumberland County at its correctional facility. The minutes state that Ellis was charged in a PNDA seeking his termination with conduct unbecoming and other sufficient causes following an internal affairs investigation in which Ellis admitted to engaging in sex with two inmates and bringing them contraband, including bras, underwear, cigarettes and a cellphone. He also admitted to using an alias that allowed him to correspond with and provide money to one of the inmates through JPAY, a service that allows individuals to transfer money to inmates.

The minutes reflect that Ellis resigned while the disciplinary action was pending. According to the minutes, when Ellis learned the County intended to continue to pursue the disciplinary charges, he agreed to cooperate in an investigation of other suspected acts of improper fraternization, leading to charges against four other officers. "As a result of his cooperation, Cumberland County agreed to dismiss the disciplinary charges and permit Mr. Ellis to retire in good standing" as reflected in a March 1, 2017 settlement agreement between Ellis and the County. The PFRS Board determined Ellis' misconduct required a partial forfeiture of his service and salary, and approved his service retirement less that partial forfeiture.

Having obtained those minutes, Libertarians made an OPRA request to the County for the PNDA issued to Ellis, a copy of the settlement agreement, and Ellis' "name, title, position, salary, length of service, date of separation and the reason therefor" in accordance with section 10. County counsel timely responded by advising that section 10 prohibited access to the PNDA, but in accordance with the exception in that section for the specific information Libertarians sought, provided Ellis' name, his title, his yearly salary of $71,575, his hire date of March 6, 1991, and separation date of February 28, 2017. County counsel advised Ellis "was charged with a disciplinary infraction and was terminated."

County counsel also confirmed the existence of "an agreement with respect to the disciplinary action resulting in separation from employment." He advised the County could not

unfortunately, make additional information available as personnel records, including disciplinary records, are confidential. The settlement agreement pertains to a disciplinary matter and does not fall under the exception with respect to settlement agreements pertaining to outside litigation under the case of Burnett v. Gloucester County, 415 N.J. Super. 506 (App. Div. 2010). See too, South Jersey Publishing Company, Inc. v. New Jersey Expressway Authority, 124 N.J. 478 (1991). That case also would preclude the release of that type of information.

County counsel invited Libertarians to provide any "additional information or authority which you believe entitles you to this information," but advised that "[a]t this point," the County was constrained to limit disclosure to the information provided.

Libertarians filed this OPRA action seeking access to the settlement agreement alleging "it is not wholly exempt under OPRA" and that it should "[a]t a minimum" have been produced in redacted form. Libertarians also sought a ruling that the County violated section 10 by misrepresenting the reason for Ellis' separation, indicating he was "terminated" instead of allowed to retire in good standing. Alternatively, Libertarians demanded the agreement under the common law right of access, alleging that "[m]uch of the details about Ellis' misconduct and his separation from employment are already known to the public" through the PFRS board minutes and a lawsuit filed in federal court against the County by an inmate claiming Ellis forced her into sex, Cantoni v. Cumberland County, Civ. No. 17-7893 (NHL)(AMD), 2018 WL 3325901, 2018 U.S. Dist. LEXIS 11269 (D.N.J. July 6, 2018).

After hearing argument, but before review of the settlement agreement, the court rejected the County's position that the agreement was a personnel record exempted from disclosure by section 10. Relying on those cases holding that agreements settling claims and lawsuits between claimants and governmental entities constitute government records accessible under OPRA, see Burnett, 415 N.J. Super. at 512, 2 A.3d 1110, and Asbury Park Press v. County of Monmouth, 406 N.J. Super. 1, 10, 966 A.2d 75 (App. Div. 2009), the court ruled the settlement agreement between Ellis and the County was a government record subject to disclosure with necessary redactions. The court specifically rejected the County's argument distinguishing those cases because the settlement agreements at issue there resolved lawsuits, not internal disciplinary actions, deeming it not "persuasive."

Specifically, the court stated:

ultimately what I see here is the county couching this settlement agreement as a personnel [record] in its entirety. Which I think is an unfair characterization of what the settlement agreement is. Is it likely that there's some personnel information in that record that should be redacted? Yes, it's certainly likely. But the public, under OPRA, should be entitled to and is entitled to information concerning especially financial aspects of this arrangement.

The court expressed the concern that

if we give a document a certain name, then what happens is the government will attempt to argue that because we named it a settlement of a personnel matter or whatever we want to call it, the government will seek to limit the disclosure of the document as a governmental record, which flies in the face of what OPRA is seeking to accomplish.

It also found that the County's alleged misrepresentation of the true reason for Ellis' separation "in and of itself, [was] cause for [the] court to address at least that inconsistency, by releasing the portions of this governmental record."

The court also rejected the County's position that the exemption for ongoing investigations, N.J.S.A. 47:1A-3(a), also shielded the settlement agreement from disclosure under OPRA. Acknowledging the County's representation that the investigation revealed in the minutes of the PFRS Board, with which Ellis had agreed to cooperate, included a criminal investigation by the County prosecutor's office,¹ which was then still ongoing, the court ruled that "if there's information in there that's going to interfere with the investigation of the prosecutor's office, it should not be made public."

The court advised the parties it would perform an in camera review of the document, saying it "suspect[ed]" it would "further confirm this court's opinion that this, in fact, is a governmental record, with some personnel information contained therein." Although declining to make its ruling final pending its in camera review of the document, the court nevertheless found Libertarians a prevailing party entitled to counsel fees.

Following an hour recess to permit in camera review of the settlement agreement, the court advised the parties on the record:

that probably about 90 percent of the agreement ... falls into the category [previously] discussed, the category being the criminal investigation or particularly the disciplinary issues that ... involve Mr. Ellis. That does mean there's about 10 percent or so of the information I do find to be appropriate to be released.

After reviewing the specific redactions on the record, the court concluded:

So, essentially, when it's all said and done, what this court did was leave in there the fact that Mr. Ellis submitted his resignation, that Mr. Ellis is going to cooperate in some fashion. And that assuming he cooperates in that fashion, then he will be permitted to retire in good standing. That's the portion that I find to be subject to public inspection.

The parties subsequently entered into a consent order for fees in the sum of $10,000, which they agreed to stay pending the County's appeal. The court...