Sparta disputes ruling to pay attorney fees

August 15, 2012

By JESSICA MASULLI REYES

SPARTA -- A four-year battle between a Sparta resident and the township over public records will continue into next year regarding who will pay $12,000 in disputed attorney fees.

In 2008, resident Jesse Wolosky filed two complaints with the state's Government Records Council disputing redactions in executive session minutes and the cost of audio recordings.

Sparta is appealing the decision that was in Wolosky's favor, and the matter will move to an Appellate Court hearing in the next few months.

"Sparta appealed because we felt that the decision of the administrative law judge was incorrect in both cases," said attorney Richard Stein, of Laddey Clark & Ryan.

The initial Open Public Records Act requests were made by Wolosky in April and August of 2008. In the first one, he requested audio recordings of meeting on CDs in WAV format. He was told that the format would have to be FTR Gold or he would have to pay $67 per CD for WAV format.

The 11 CDs and other fees would have cost a total of $673.85, but the township later lowered the fee to $191.

Wolosky argued that he had received copies in WAV format for $1 on previous OPRA requests and that FTR Gold would require him to have to download a program to listen to the recordings.

However, Stein said this was not the case, since Sparta did not have WAV format readily available.

"We feel that in that situation it should be the person asking for the conversion, and not the taxpayers, who bear the cost," Stein said.

Wolosky filed a complaint in December 2008 with the Government Records Council, the group that responds to complaints about public records. The council initially ruled in favor of Sparta, but the council later reconsidered the matter with further evidence and ruled in favor of Wolosky in August 2010.

Wolosky then received the CDs in WAV format for a total of $2.45.

Wolosky's attorney, Walter Luers, said he took on the case because the audio recordings were too expensive.

"With respect to the recordings, I was always pretty confident that the amounts that the township clerk quoted were very, very high," Luers said.

The second complaint was filed in October 2008 after Wolosky requested executive session minutes and Friday memo, which is a brief document provided to the Township Council every week. The minutes and memo were redacted in several places.

"We had redactions to the Friday memorandums and they seemed pretty broad at the time so we asked the Government Records Council to review them and usually with those reviews you will get something un-redacted," Luers said.

The Government Records Council voted in favor of Wolosky and some of the redactions had to be removed. Stein said that even though the council voted in favor of Wolosky, only 68 of the 71 redactions had to be released, meaning that the majority of the redactions were upheld.

"That left three redactions ... that had to be released to Mr. Wolosky," Stein said.

Both of the cases then went to the Office of Administrative Law, where it was decided that Luers would receive nearly $12,000 in attorney fees from Sparta. But, Sparta has filed an appeal with the Appellate Court regarding both cases.

Although Wolosky has already received the reduced-price CDs and un-redacted documents, both sides are now fighting over the fees. OPRA law states that the prevailing party's attorney should receive reasonable fees from the losing party, especially since these cases are taken on by attorneys without pay from their client.

"The only thing Sparta would get would be that we wouldn't have to pay the attorney fee to Mr. Wolosky's attorney," Stein said about Sparta winning.

Stein added that the administrative law judge slightly cut Luers' fees, and Luers is now appealing that decision.

"If Sparta didn't appeal it, my lawyer would have settled for what the Government Records Council ruled," Wolosky said.

If Wolosky wins, then Sparta may have to pay a higher attorney fee, since Luers is continuing to fight the case. Luers said his appeals usually range anywhere from $5,000 to $10,000 on top of any prior reasonable attorney fees, but he didn't know the exact bill on this case.

Wolosky said these appeals are not actually beneficial to Sparta.

"What is the benefit to the taxpayers to push this to the Appellate Court?" Wolosky asked. "Do they want to prove me wrong after I won in two courts?"

He said this continues to incur more attorney fees on both sides.

"They are creating a bigger pay day for (my attorney), and now they are creating a pay day for themselves," Wolosky said. "The township attorneys are milking the town."

The two cases will go to trial in the coming months, but a date has not yet been set.

Byram residents submit petition against budget cap hike

February 29, 2012

By LYNDSAY CAYETANA BOUCHAL

BYRAM — A petition to repeal the Township Council's Feb. 7 vote to increase the township appropriations cap from 21⁄2 percent to 3 1⁄2 percent was submitted for a referendum Monday.

Petitioners Harvey Roseff, Joann Smith, Eugenia Moran, Merwyn Lee and Nelson Drobness turned in 420 signatures, well over the 253 necessary to be considered, The number required was 15 percent of voters in the last election.

"I think we're breaking a 10-year habit of continually raising the budget cap limit and we're now returning to a more prudent budgeting policy, one that will require more fiscal responsibility and there will be more respect for the taxpayer," Roseff said. "We're looking to stick to the state's budget cap not the optional exception limit that Byram keeps selecting."

Township Clerk Doris Flynn has 20 days to certify the petition and verify the signatures.

"We had five circulators of the petition and we gathered about 420 signatures in a week's time," Roseff said. "We had pretty much overwhelming support from the public."

The appropriations cap determines how much Byram can spend, while the tax levy cap determines how much Byram can tax its residents.

Since 2003, Byram has unanimously voted to increase the spending cap as recommended by township professionals. The council has routinely approved the spending cap increase, and any unappropriated funds are retained in a cap bank to be used in case of emergencies. On Feb. 7, however, newly elected council members Nisha Kash and Carlos Luaces were the first to vote against the cap increase ordinance in nearly 10 years.

Matt Weng, staff attorney for the New Jersey State League of Municipalities, said municipal appropriations are limited to a 2.5 percent cap increase or the cost of living adjustment determined by the Department of Community Affairs, whichever is less, or a municipality can vote to raise the spending cap to a maximum of 3.5 percent.

Byram's appropriations that were within the cap in 2010 equated to about $8.1 million. With the 31⁄2 percent cap applied, appropriations totaled about $8.4 million. About $240,000 was retained in the cap bank for potential use in 2011.

In 2011, Byram's appropriations were nearly $8.4 million, about $74,000 over the 21⁄2 percent cap. The township then used $74,000 from the 2010 cap bank for assistance, dropping the unappropriated funds to about $165,000. An additional cap bank was created in 2011 from other unused funds, equating to another $122,000, or a total of $287,000 for potential use in 2012.

Last week, Township Manager Joe Sabatini said Byram has never used or exceeded the maximum allowable amount set by the cap. If the ordinance gets repealed, Sabatini said the township will not have cap banking for 2012, which could have adverse affects in the 2013 and 2014 budget cycles.

Byram residents lead petition against budget cap hike

February 21, 2012

By LYNDSAY CAYETANA BOUCHAL

BYRAM — The council's Feb. 7 vote to increase the township appropriations cap from 2 percent to 31⁄2 percent has triggered a referendum petition drive to repeal the decision.

"The state has a law that says that homeowners should be protected from the spiraling costs of municipal government, and Byram, for 10 years, has chosen to continually pass an ordinance to circumvent the mandated budget cap," said Harvey Roseff, one of five petitioners.

Roseff, Joann Smith, Eugenia Moran, Merwyn Lee and Nelson Drobness make up the committee of petitioners in favor of a referendum. Nearing the 20-day deadline to submit a petition with 10 percent of the electorate's signatures, Roseff expects to deliver the document this week.

Since 2003, Byram has unanimously voted to increase the spending cap as recommended by township professionals.

Councilman Scott Olson said the council has routinely approved the spending cap increase for years as any unappropriated funds are retained in a cap bank, representing a "line of credit" or a "safety net" that can be used in upcoming years in case spending is cut or an unforeseen situation arises in the township. On Feb. 7, however, newly elected council members Nisha Kash and Carlos Luaces were the first to vote against the cap increase ordinance in nearly 10 years.

The appropriations cap determines how much Byram can spend, while the tax levy cap determines how much Byram can tax its residents.

Further, the township's ordinance incorrectly states that the mandated cap is 2 percent; however, the mandadate was changed this year to 21⁄2 percent. Township Clerk Doris Flynn said the ordinance is still valid after speaking with the state about the error.

"I want to lead by example," Luaces said. "It's time that someone starts to rein in spending."

Kash compared Byram's appropriations to a household budget: If a family can't exceed that amount, they don't.

"If that means cutting services here and there ... we just can't afford to keep increasing," Kash said. "Since 2003 we've had a cap bank, and since 2003 taxes have gone up steadily."

Olson countered, " To say that this has been the cause of tax increases or that this is taxing people is confused and not knowing of the facts. This is a tool for sound financial planning that's totally appropriate to use, especially in difficult times."

Matt Weng, staff attorney for the League of Municipalities, said municipal appropriations are limited to a 2.5 percent cap increase or the cost of living adjustment determined by the Department of Community Affairs, whichever is less, or a municipality can vote to raise the spending cap to a maximum of 3.5 percent.
"(If a municipality votes to increase the cap to the maximum), you earned that right to spend more because you spent less in previous years," Weng explained.

Byram's appropriations that were within the cap in 2010 equated to about $8.1 million. With the 31⁄2 percent cap applied, appropriations totaled about $8.4 million. About $240,000 was retained in the cap bank for potential use in 2011.

In 2011, Byram's appropriations were nearly $8.4 million, about $74,000 over the 3.5 percent cap. The township then used $74,000 from the 2010 cap bank for assistance, dropping the unappropriated funds to about $165,000. An additional cap bank was created in 2011 from other unused funds, equating to another $122,000, or a total of $287,000 for potential use in 2012.

"This cap bank is a slush fund," Roseff said. "We are asking the government to be more conservative and in these times be more focused on tighter budgets."

Township Manager Joe Sabatini said, "If you look back, we've never used the maximum allowable that this cap has given us in any year; we've always stayed within the amount. Just because we do this doesn't mean taxes are going up."

"If the (Cost of Living Adjustment) ordinance doesn't get passed, we can still adopt the proposed 2012 budget using cap banking from prior years," Sabatini said. "If the ordinance gets repealed, we will not have cap banking for 2012, which could be detrimental to the 2013 and 2014 budget cycles."

Former Sparta mayor indicted on misconduct charges

http://www.njherald.com/story/16966481/former-sparta-mayor-indicted-on-misconduct-charges

February 18, 2012

TRENTON (AP) — A suspended police captain for a New Jersey state agency, who is a former Sparta mayor and councilman, has been accused of filing fraudulent timesheets — going on ski trips, gambling in Atlantic City and performing personal consulting work while claiming he was working.

A nine-count indictment handed up Friday in state court in Trenton against Brian Brady, 50, also accuses him of using a state vehicle,state gas card and state-issued E-ZPass on some of the personal trips.

Brady was suspended from his $101,000-a-year job with the New Jersey Human Services Police when charges were first brought in May. He has denied any wrongdoing.

He is also accused of falsely claiming he had re-qualified for firearm use and of wrongly using police databases for personal reasons. Charges include official misconduct and theft by deception.

Brady was charged in a nine-count state grand jury indictment with three counts of official second-degree misconduct. one count of pattern of official misconduct, second-degree; one count of theft by deception (third-degree), two counts of tampering with public records or information (third- degree), and two counts of computer theft (second and third- degree). If convicted, he would face a sentence of five to 10 years in prison on each official misconduct charge, including five years without possibility of parole, and a consecutive sentence on the pattern of official misconduct charge. The charges stem from an investigation by the Division of Criminal Justice Corruption Bureau and New Jersey Department of Human Services.

Brady is the third highest ranking officer in the Human Services Police, reporting to the chief and the director. The Human Services Police provide police services at the developmental centers and psychiatric hospitals operated by the Department of Human Services (DHS). They are also assigned to protect offices and case workers for the Division of Youth and Family Services. The Department of Human Services immediately suspended Brady when he was charged by complaint in the case in May.

"It is deeply troubling that a police supervisor, who has a sworn duty to uphold the law, is instead charged in this indictment with violating the public's trust through multiple criminal acts of dishonesty and theft or abuse of police resources," said Attorney General Chiesa in a released statement. "By aggressively prosecuting official misconduct, we will deliver a loud and clear message that nobody is above the law."

"This captain allegedly falsified timesheets in order to collect pay as if on duty for days when he was away on vacation or traveling for personal business," said Stephen J. Taylor, Director of the Division of Criminal Justice, also in a released statement."On top of that, he allegedly used a police vehicle and state-funded gas for those personal trips. We will not tolerate that type of abuse of public office."

In connection with the first count of official misconduct, it is alleged between March 2007 and October 2010, Brady took blocks of personal time without submitting documentation for the appropriate leave time. Instead, Brady, whose annual salary is $101,000, allegedly submitted false time sheets indicating he had worked on days when he was away on personal trips, including ski trips to Vermont, trips to New York for his personal consulting business, and visits to Atlantic City and Delaware to gamble. On some of these personal trips, including travel outside of the State of New Jersey, he allegedly used a state vehicle and a state-issued E-Z Pass, and purchased gas using a state gas card.

Brady was the officer for the Human Services Police who submitted required certifications each year to the Attorney General's Office on force members' firearms qualifications. The second count of official misconduct charges that Brady submitted four annual certifications for the years 2006, 2007, 2008 and 2009 that falsely stated he had completed required activities at a firing range to re-qualify in use of his service firearm, when he had not completed the requirements.

In connection with the third count of official misconduct, it is alleged that Brady directed a subordinate employee of the Human Services Police to conduct background checks on members of a minor league baseball team using a restricted police database. It is further alleged that he directed subordinate officers to use the police database to run background checks on a home health care worker he was considering hiring and a vehicle he wanted to buy. The police database is to be used strictly for criminal justice purposes and not for personal purposes.

Brady is charged with third-degree theft by deception for allegedly falsifying the timesheets and using the state vehicle, EZ-Pass and gas card for personal purposes. The two counts of third-degree tampering with public records or information address his alleged falsification of the timesheets and the firearms certifications. The computer theft counts relate to his alleged unauthorized use of the police database for personal purposes.

The case was presented to the state grand jury by Deputy Attorney General Mark J. Ondris and Deputy Attorney General Cynthia Vazquez. The investigation was conducted and coordinated by Detective Lee Bailey, DAG Ondris, DAG Vazquez, DAG Nicole Rizzolo, and Supervising Deputy Attorney General Christine Hoffman, Chief of the Division of Criminal Justice Corruption Bureau, with the full cooperation and participation of Human Services officials.

Second-degree crimes carry a sentence of five to 10 years in state prison and a criminal fine of up to $150,000. Each of the second-degree charges carry a mandatory minimum sentence of five years in prison without parole under New Jersey's statutory sentencing enhancements for public corruption. The mandatory minimum sentence applies to certain listed offenses occurring on or after April 14, 2007 that involve or touch upon the defendant's public office. Third-degree charges carry a sentence of three to five years in state prison and a fine of up to $15,000.

The indictment was handed up to Superior Court Judge Linda R. Feinberg, in Mercer County, who assigned the case to Mercer County.

Sparta school board stops listing names of records requesters

December 20, 2011

By JESSICAMASULLI REYES

SPARTA -- After receiving criticism last month, the Board of Education has decided to no longer print on the agenda names of people who made document requests through the Open Public Records Act (OPRA).

In November, the time spent and cost of each OPRA request were listed next to each name. Some of the people on the list and an OPRA activist, Jesse Wolosky ,criticized the board and Superintendent Thomas Morton for trying to intimidate people from making these requests.

"There was quite a reaction to the board's request to see the OPRA listings," Morton said at Monday's meeting. "It is important to note there was no intent to intimidate or embarrass anyone."

Morton recommended to the board that it modify the list to remove individual names. The board agreed, and Morton announced that since Sept. 29 there have been 16 OPRA requests, totaling 12 hours and five minutes of staff time, and associated legal bills for October and November of $1,791.25.

Morton said the list of names is public information and is accessible to anyone who requests it. He that he found it "curious" that the people who were upset about the list were the people who have previously made an OPRA request of that very list.

Board member Frank Favichia clarified that the entire board did not ask for the list to be printed on the agenda, but instead board President Keith Smith did so.

Also, at Monday's meeting, the board discussed how to handle three recent opinion pieces in local newspapers that they said were inaccurate. The board criticized the New Jersey Herald for calling the pursuit of new athletic facilities an "end-around play" in an editorial in Monday's
newspaper.

"We have contacted the state several times, and we continue to work with the state on this project," Smith said. "The accuracy of the statement is not correct."

Morton criticized the New Jersey Herald editor and questioned the state's decision to not allow Sparta to build a new multi-purpose turf field and synthetic track with unspent referendum funds from the high school project prior to actually seeing an application from Sparta.

The board decided not to respond to the editorial since according to board member Kevin Pollison, "The power of the pen is that they can write an editorial."

The board voted 6 to 3 to draft its own letter to the editor to respond to a letter to the editor from Assemblywoman Alison Littell McHose, Assemblyman Gary Chiusano and Senator Steve Oroho that was in the Sparta Independent and New Jersey Herald. The letter stated that the district used "loopholes in the law" to circumvent a cap on salaries of school administrators.

"It is inaccurate," Smith said. "The timing is inaccurate.

The dollar amounts are inaccurate." Board Vice President Dorothy LaBeau said that there is a
difference between a letter to the editor from a citizen and one from politicians, and thus the letter needed to be addressed. But, Favichia asked the board to build relations with the public rather than rehashing problems.

The board also questioned whether or not to respond to an inaccuracy they believe was in a letter to the editor by Wolosky in the New Jersey Herald, but it decided not to respond to citizen opinions.

Sparta activist against board open records action

Dec 01, 2011

By JESSICA MASULLI REYES

SPARTA — A resident is threatening a lawsuit if the Board of Education does not stop publishing a list of people who made document requests through the Open Public Records Act (OPRA).

Jesse Wolosky, an OPRA activist from Sparta, believes that by publishing the list of names in the November agenda, the board and superintendent are trying to intimidate political opponents and critics.

"It is trying to put guilt on the requestor," Wolosky said. "Remove the list and stop doing it, and then the issue is dead."

Superintendent Thomas Morton said the intention is not to intimidate people, but instead to provide the board and public with information about the cost and time involved with fulfilling OPRA requests.

"There has been a discussion every month about what the cost and time of OPRA is," Morton said. "So let's just put it down as accurately as we can."

Morton said at Monday night's board meeting that since the business administrator resigned in September, he has been handling the OPRA requests and has wanted to let the public know the "man hours" and cost behind these requests.

On November's meeting agenda under unfinished business, four people were listed as having made five OPRA requests from Sept. 30 to Oct. 24. The time spent and cost of the OPRA request were listed next to each name, but under cost it only said "legal fees" since it takes one month for the final bill to be sent to the district.

Morton said that despite Wolosky's warning of litigation, he still plans to print the list of names, time spent and cost on December's meeting agenda. He also expects to be able to put a dollar value instead of writing "legal fees."

"It is public information and there has been a lot of discussion about it," Morton said.

Tom Cafferty, an attorney for the New Jersey Press Association, said the list of names is public record and can be printed in the agenda or obtained through an OPRA request, but the disagreement comes down to the intent in publishing the names.

Wolosky said that regardless of intent this is a violation of civil rights, and the board could just provide time spent and cost without listing names. "If you (read) the First Amendment and the 14th Amendment, you can see that they are violating civil rights," Wolosky said.

"I think it is to intimidate and it is political. I see this a lot in municipalities that it is the political forces that we have in our country that are fighting over power on a local level."

But Morton disagreed and said that some people in Sparta have been submitting OPRA requests for the names of those who filed OPRA requests. By putting the information in the agenda, Morton is providing that information without the normal steps in filing an OPRA request.
Wolosky sees this differently.

"If they wanted to be more public about their information, why not list what this person is requesting and the response," Wolosky said.

Cafferty agreed, and said that if the board wanted to publish the list of names, it should also be more transparent with other public records.

"We are all for transparency, but transparency for everything," Cafferty said. "Let's make everything transparent. This is part of your job and if you are going to do this, let's record everything that is part of your job. Why selectively single out OPRA?"

Wolosky said that more public information should be printed on the district's website to cut back on the number of OPRA requests and to remain transparent.

"The big picture is (that they should) put out the information of the Board of Education," Wolosky said. "Why not have a list of every employee and their salary? I am talking about putting out Board of Education business. The requestor's business is the requestor's business."

Paul Johnson, a former board member who was listed as filing an OPRA request on Sept. 30, said he did not agree with the practice of listing the names. "I believe in my heart it is an intimidation factor," Johnson said.

"They don't want people to know what is going on until they have prepared themselves to present it to the world or not. This is an attempt to intimidate people to not request information that they have a right to see."

Morton disagreed at Monday night's board meeting though and said that it is a public service to show taxpayers how much the requests are costing them.

Johnson said that the requests he filed in September were for a test scores presentation that was given by Assistant Superintendent for Curriculum Kathy Monks and for an exit package contract for former Business Administrator Warren Ceurvels. Johnson requested the exit package because when he asked if there was a legal gag order placed on Ceurvels at the board meeting, board President Keith Smith recommended that Johnson submit an OPRA request.
On the list, it said that Johnson's two requests incurred legal fees and took 50 minutes.
"That would take 10 minutes to do," Johnson said. "Why did they need to associate legal costs with that? It is a contractual agreement. They know that it is a public record."

Melva Cummings, who was also on the OPRA request list twice, said at Monday's board meeting that her requests should not have taken six hours and 15 minutes to fulfill and should not be on the agenda.

"We are doing what is perfectly legal and conscientious," Cummings said. "This action has now crossed the line."

Smith said that Cummings did not need to direct her frustration at Morton since listing the OPRA requests was actually something that Smith himself asked Morton to start doing.

Cafferty said that OPRA requests do not normally incur legal fees. "Most requests are routine," he said. "Many of these requests they've seen several times. This is part of (the) job duty."

Wolosky said that having five OPRA requests over a five-week period is not excessive. "Five OPRA (requests) that they received in the last five weeks is not a lot of work," Wolosky said. "A lot of times it is finding a document and sending it off. It shouldn't be a legal fee because you are not asking for executive session that needs to be redacted."

Wolosky said that if the board doesn't change this newly adopted practice, he will file an OPRA request, get his name on the list and then file a lawsuit. He feels confident that he can win since another municipality stopped the same practice after he persuaded them of the legality.

"Once a local government is directed to the law they are violating, if they are not just stubborn or arrogant, they might listen," Wolosky said. "I just hope if Morton or the board plan on being stubborn or arrogant that they get a lawyer who knows federal law."

Former Sparta mayor faces charges, suspended from state job

May 17, 2011By JESSICA MASULLI

SPARTA — Brian Brady, a former mayor and councilman of Sparta, was placed on administrative leave from his position of police captain of the New Jersey Human Services Police Tuesday while he faces charges of submitting false timesheets and firearms qualification certificates, and misusing police search databases, according to the Attorney General’s Office.

Brady, the third highest ranking officer in the Human Services Police, was charged with three counts of second-degree official misconduct and one count of second-degree pattern of official misconduct. The Human Services Police provide services to the developmental centers and psychiatric hospitals operated by the Department of Human Services.

If convicted, Brady could face maximum sentences of 10 years in state prison on each official misconduct charge and a consecutive sentence on the pattern of official misconduct charge. This includes five years without possibility of parole, according to the Attorney General.

Brady’s attorney, Mario Iavicoli, disputed the charges and said Brady was being retaliated against for complaining to superiors about having to take on extra responsibilities, the Associated Press said.
Brady pleaded not guilty in court, his attorney said, and was released without having to post bail, according to the Associated Press.

Brady, who earns a salary of $101,000, allegedly took personal time off and falsified timesheets to say that he had worked, the Attorney General’s Office said.

“On some of these personal trips, including travel outside of the state of New Jersey, he allegedly used a state vehicle and state-issued E-Z pass,” the Attorney General’s Office said.

Iavicoli said Brady drove the state vehicle when he was on call, at odd hours, and actually gave back vacation time that he didn’t use, according to the Associated Press.

Brady is also alleged to have done police background checks for a team’s manager on every member of a minor league baseball team. He is also alleged to have checked the database for a vehicle he wanted to purchase and to have falsified his own qualifications to use a firearm.

“The police database is to be used strictly for criminal justice purposes and not to be used for personal gain,” the Attorney General’s Office said.

Iavicoli said authorities were going overboard in charging Brady for doing an improper background check that Brady thought would “benefit the community,” according to the Associated Press.

“He thought he had the discretionary right to do the lookup,” Iavicoli said. “We believe they wanted to replace him and this is the method they are using.”

Messages left on Brady’s cellphone were not returned.

The charges stemmed from an ongoing investigation by the Division of Criminal Justice Corruption Bureau and New Jersey Department of Human Services, to which Brady’s department provides police services. The Department of Human Services suspended Brady until a hearing.

“The police captain allegedly abused his office by falsifying and misusing official records to serve his own purposes,” said Attorney General Paula Dow. “There is no room for dishonest conduct on the part of a sworn law enforcement officer.”

Criminal Justice Director Stephen J. Taylor said that police officers must be held to higher standards.

Brady was on the Sparta Township Council for four years starting in 2006. Under his term, Brady and two other council members, Michael Spekhardt and Manny Goldberg, acted together to approve the purchase of the Limecrest Quarry for $2.45 million, create a garbage utility and resulting townwide referendum, and contract local health services out to the county. Public outcry over many of the council's decisions led in 2008 to recall petitions for the three council members. The petition petitions failed to get the required number of signatures in time. Brady did not run for re-election in 2010.

Sparta man says he will bring petition case to Legislature

March 10, 2011

BY JEFF SISTRUNK

A Sparta resident said he plans to bring the issues central to his recently dismissed lawsuit against Sparta Township to a member of the state Legislature.

On Tuesday, Superior Court Judge Theodore Bozonelis dismissed a lawsuit brought against Sparta by Jesse Wolosky, who claimed that Sparta’s governing council violated petition laws on several occasions last year through the manner in which it handled the restructuring of the township’s Department of Parks and Recreation.

The Sparta Township Council passed an ordinance last year restructuring the department. That ordinance had some language similar to that found in an ordinance the council repealed earlier in 2010 in light of a successful petition drive by township residents.

While Bozonelis agreed that the action that Sparta’s council took to pass the ordinance was valid, he also agreed with some of Wolosky’s points on the issue.

According to court documents, during oral arguments, “Bozonelis agreed with (Wolosky’s) position that the governing body of a municipal agency should not be allowed to re-introduce an ordinance that was repealed or voted down in response to a referendum petition.”

However, Bozonelis held that he was limited by the vague language of the Faulkner Act — the legislation that governs municipalities such as Sparta — and that the situation should be corrected by the Legislature, not the courts.

While Wolosky can take his case to appellate court, he said he won’t pursue that option because he expects that judges at the appellate level would give him the same answer.

Instead, Wolosky said he plans to bring his concerns to a member of the state Legislature, possibly a member from Sussex County. If Sussex County legislators “are not interested in correcting the statute” in question, he said he will approach Sen. Loretta Weinberg (D-Bergen County), with whom he said he’s had “past communication” on Open Public Records Act issues.

“I feel the law needs to be corrected for all Faulkner Act municipalities in New Jersey before governing bodies realize this loophole in the statute and silence the will of the people when they make the effort and take the time to submit a petition,” Wolosky said.

Wolosky said the “loophole” he refers to is a governing body’s legal ability to re-introduce an ordinance that’s identical or similar to an ordinance that has been repealed.

Activist wins open records dispute

February 9, 2011

By TOM HOWELL JR.

The Government Records Council has put the final stamp on a case filed by a Sparta activist who successfully argued a Green Township custodian of records failed to comply with his open records request in late 2008.

Jesse Wolosky said he did not receive executive session minutes from the township’s governing body and check registry data from Jan. 1, 2003 to Dec. 2, 2008, by his requested method of delivery or within the seven days allotted by the Open Public Records Act.

He filed a complaint with the GRC, which reviews and mediates OPRA-related issues, on Jan. 5, 2009.

“In a month, she didn’t give me the records,” Wolosky said.

According to the GRC, the Green custodian of records also improperly charged $25 for a CD-ROM of the requested check registry data.

“The days of the 25-dollar CDs are long gone,” said Walter Luers, an Oxford attorney who served as co-counsel for Wolosky on the case.

The records council said the township records custodian did ultimately provide the executive session minutes through a requested method of delivery — by fax — and complied with the intent of the GRC’s Dec. 22, 2009, interim order by providing the check registries in PDF format via e-mail.

However, the council added, the custodian’s legal certification to the GRC was not completed in a timely manner, and the GRC found a direct link between Wolosky’s filing of a complaint and the eventual desired result.

“The Custodian did not provide the Complainant access to the requested records in the medium requested or by the preferred method of delivery until after the filing of this Denial of Access complaint,” the GRC said in its final decision papers.

Therefore, the GRC said, Wolosky is the prevailing party and his attorneys are entitled to appropriate fees. Both parties reached a settlement, under the auspices of the Office of Administrative Law, to dispose of the matter.

Newton attorney William Hinkes, who represented Green Township, confirmed the settlement but had no further comment on the terms.

Sparta attorney John McMeen, who served as lead counsel for Wolosky alongside Luers, said the pair of attorneys received $2,300 to be split in accordance with their billable hours.

Sparta sued over council's response to petition drive

January 13, 2011

BY JEFF SISTRUNK

SPARTA -- A Sparta resident has filed a lawsuit against the township, claiming that it violated petition laws on several occasions last year.

Jesse Wolosky, who has led several petition drives in Sparta and Mount Olive and recently won a lawsuit against the Sparta Board of Education, filed the suit in response to the manner in which the Sparta Township Council handled the restructuring of the Department of Parks and Recreation last year.

The lawsuit calls for an ordinance passed by the council in September that split the department into two divisions to be voided.

Wolosky is represented in the case by Walter Luers, while Sparta Township is represented by Thomas Ryan, its municipal attorney. Calls to Ryan's office seeking comment were not immediately returned.

As outlined in the lawsuit, Wolosky has multiple objections to the council's actions.

In April 2010, the council adopted an ordinance that eliminated the Department of Parks of Recreation and the position of recreation director and created a new division within the Community Development Department called the Division of Recreation and Senior Services. Council members at the time called the ordinance a cost-saving measure; the elimination of the recreation director was purported to save the township about $120,000 annually in salary and benefits.

A month later, a committee of petitioners who objected to the ordinance garnered the necessary number of signatures on a petition calling for the measure's repeal and submitted the petition to Sparta Municipal Clerk Mary Coe. Wolosky said he was neither involved with the petition committee nor did he sign the petition.

Coe certified to the council that the petition was valid on June 22. On July 8, the council introduced a measure to repeal the ordinance and on July 27, it adopted that measure.

In September, the council passed, on second reading, an ordinance reorganizing the Department of Parks and Recreation that contained some language that was similar to that found in the repealed ordinance. The new ordinance split the department into two separate entities within the Community Development Department.

Citing a state statute, Wolosky contends that, because the council didn't take action to repeal the original ordinance within 20 days after the public's petition was certified, it was required to submit the ordinance to repeal to the public to vote upon in a general or special election. When Wolosky presented this argument to the council at its regular meeting Sept. 14, Ryan said that the fact that the council introduced the measure to repeal the ordinance within the 20-day timeframe was sufficient.

Wolosky's lawsuit also points out some of the similarities between the April and September ordinances and, citing another statute, alleges that the council is prohibited from passing an amended version of the repealed ordinance for three years unless it first presents it to the public to vote upon.

The defendants' response denies that the two ordinances are the same and claims that the statute in question only applies to ordinances that were voted upon in a general election, which the original measure was not.

Wolosky said he filed the lawsuit out of concern for how future petitions in Sparta will be handled.

"It's important for the residents of Sparta to discover whether or not the council was circumventing the law," he said. "What's the point of people having the right to petition if the council can just re-write a repealed ordinance?"

At the Sept. 14 meeting, Ryan called Wolosky's accusations that the council circumvented the law "grossly presumptuous."

The lawsuit is scheduled to be heard before Superior Court Judge Theodore Bozonelis Jan. 21. Sparta is asking that the judge dismiss the suit.

Sparta schools must release executive session minutes, judge rules

January 7, 2011

BY JEFF SISTRUNK

SPARTA -- A township resident has won a lawsuit against the Sparta Board of Education seeking copies of executive session minutes, less than two years after winning a similar case against Vernon Township.

Superior Court Judge Theodore Bozonelis, who also heard the Vernon case, ruled in Jesse Wolosky's favor on all points last month and issued an order Monday that outlined his ruling and contained several mandates to the Sparta Board of Education.

Under the order, the board also must reimburse Wolosky for his court and attorney's fees. Wolosky said an amount hasn't yet been finalized and that Bozonelis will determine his attorney's fees.

Wolosky filed the lawsuit in September following a pair of Open Public Records Act requests to the board. The lawsuit alleged that the board "violated the Open Public Records Act, the Open Public Meetings Act and New Jersey common law right of access by denying Wolosky copies of executive session minutes, not timely approving executive session minutes and not identifying the names of individuals discussed in executive session."

Executive session minutes are records that pertain to matters discussed by a government body in private. Tom Cafferty, an attorney for the New Jersey Press Association, said that such minutes can only be withheld from the public as long as "the interest in privacy outweighs the public's interest in access."

Wolosky's lawsuit stated that Warren Ceurvels, the board's secretary, failed to produce any executive session minutes for the time period spanning Jan. 1, 2002, to Sept. 10, 2006, and declined to provide Wolosky access to 13 sets of approved executive session minutes from 2009 and 2010. The suit also stated that the board didn't "promptly approve" five sets of executive session minutes from 2009 and 2010.

In his decision, Bozonelis declared that all three of these instances violated the Open Public Meetings Act. He also ordered the board to provide Wolosky access to the names of the public employees and public employee titles discussed in all existing executive session minutes from Jan. 1, 2002, through July 20, 2010, and to amend its policy regarding the maintenance of meeting minutes.

"I got everything I wanted out of this lawsuit," Wolosky said. "The board's claim that they are transparent to the public is false. They're conducting business behind closed doors away from the public's eyes, in the Dark Ages."

Jennifer Dericks, president of the Sparta Board of Education, acknowledged that previous boards failed to keep some records but said that in the three years Ceurvels has served as secretary, the board has maintained comprehensive executive session minutes.

With regard to the 13 sets of withheld minutes, Ceurvels said in his certification statement that his understanding was that the minutes were "exempt from public disclosure until ... the board (takes) formal action on the matters discussed during the executive session meeting."

After Wolosky filed his lawsuit, the board took action at its regular session Oct. 25to approve the five sets of unapproved executive session minutes mentioned in the suit.

Dericks said she doesn't think the board's handling of its meeting minutes will change drastically in light of Wolosky's lawsuit.

"The only thing that will change is that there will be much more scrutiny in ensuring that executive session minutes from previous meetings are promptly approved at the next meeting," she said.

Bozonelis' order calls for the board's policy regarding the maintenance of meeting minutes to be amended to include a detailed privilege/redaction log "describing the general topic discussed, the date on which the topic was discussed and the reason for the redaction." The board must review these logs and "ascertain if the legitimate reason for confidentiality continues to exist."

Dericks said she believes the board already made these revisions to its policy via a bylaw approved at the board's Nov. 22 regular meeting that formalized the requirements for recording and distributing meeting minutes.

Wolosky said his sole concern in the lawsuit was promoting transparency in government.

"For some reason, politics get involved when it comes to a government agency violating the law," he said. "If they didn't violate the law, I wouldn't have to file a lawsuit and a judge wouldn't end up agreeing with me. People are going to think, 'How much did the lawsuit cost us?' but it's not about money."

In the Vernon lawsuit, Bozonelis ruled in Wolosky's favor after township officials failed to fulfill Wolosky's Open Public Records Act requests. That suit resulted in Bozonelis ordering the Vernon Township Council to introduce an ordinance requiring the township clerk to produce draft executive session minutes for approval at the next scheduled meeting.

Sparta man sues Board of Education

October 17, 2010

BY JEFF SISTRUNK

SPARTA — Following a successful 2009 lawsuit against Vernon Township for failure to properly fulfill an Open Public Records Act request, Jesse Wolosky is taking the fight to the Sparta Board of Education.

Wolosky, of Sparta, filed a denial of access complaint against the Sparta board in September. The lawsuit alleges that the board “violated the Open Public Records Act, the Open Public Meetings Act and New Jersey common law right of access by denying Mr. Wolosky copies of executive session minutes, not timely approving executive session minutes and not identifying the names of individuals discussed in executive session.”

Warren Ceurvals, the board’s business administrator, said the attorneys for the two parties are exchanging information.

The lawsuit states that, when presented with two separate open records requests by Wolosky this year, Ceurvals failed to produce executive session meeting minutes for any meetings between January 2002 and September 2006, and that he disclosed minutes for only seven of 20 executive sessions between January 2009 and July 2010.

In regard to the minutes that were disclosed, the document alleges that the names of the Board of Education members who were discussed were redacted, which “there is no basis for under OPRA or OPMA.” In addition, the lawsuit alleges that the Board of Education has “only approved 12 sets of minutes from those 20 executive session meetings.”

According to the state Open Public Meetings Act, a public body must keep minutes of its meetings “showing the time and place, the members present, the subjects considered, the actions taken, the vote of each member, and any other information required to be shown in the minutes by law ...” and promptly make them available to the public.

Wolosky filed a complaint against Vernon Township in 2009 after his open records request for council minutes spanning a five-year period from January 2003 to November 2008 was fulfilled, albeit with redacted documents and excluding minutes from September through November 2008. In that lawsuit, Wolosky asked for the excluded minutes and unredacted copies.

Ultimately, a state Superior Court judge said the council had not been in compliance with open meetings and records laws in response to Wolosky’s request for the August through November 2008 minutes and ordered it to adopt an ordinance requiring the municipal clerk to prepare the requested minutes in time for approval at its next meeting.

Ceurvals said, in respect to the minutes he declined to release, “some information is, under the law, classified as non-disclosable, and some of the minutes fall into that category.”

“I don’t think (Wolosky) has grounds,” he said. “His claims are based on his interpretation of at what point closed session minutes are available to the public.”

Sparta Council again restructures Parks and Recreation Department

September 15, 2010

BY JEFF SISTRUNK

For The Herald

SPARTA — The Township Council unanimously approved an ordinance reorganizing the Parks and Recreation Department during a regular session Tuesday night.

Under the new ordinance, the department will be split into two separate entities within the Community Development Department — the Division of Recreation and Senior Services and the Division of Parks.

The measure is a revision of a previous ordinance that was repealed by the council in August.

The first ordinance, which passed in April by a vote of 3-2, was a cost-saving measure that restructured the Parks and Recreation Department. Among other things, it eliminated the position of the director of parks and recreation to save about $120,000 annually in salary and compensation.

A group of concerned citizens who thought the ordinance would sharply curtail recreation programs in Sparta drafted a petition to repeal and collected the necessary signatures in June.

If the council had let the original ordinance stand, it would have gone to a fall referendum, which would have cost between $18,000 and $20,000.

The new ordinance is largely the same as the original and only features minor tweaks. It does not reinstate the position of director.

Jesse Wolosky, a Sparta resident, said he didn’t have an issue with the council’s restructuring of the department but insisted that the council did not act lawfully in its response to the petition. He said the council didn’t take the appropriate actions to repeal the ordinance within 20 days after the petition was authorized.

“Frankly, the council is circumventing the law here,” Wolosky said.

Thomas Ryan, the municipal attorney, said he thought Wolosky was confused on his facts and didn’t understand the process. Ryan said the fact that the council introduced the ordinance of repeal within the 20-day time frame was sufficient.

“To say that the council is not acting within the law is grossly presumptuous,” he said.

Mayor Scott Seelagy said he would research Wolosky’s arguments.

The council also voted unanimously to appoint David Troast to the position of township manager. He will replace Henry Underhill, who resigned in May.

The council unanimously approved a measure to increase residents’ solid waste fees from $60 to $75 over the next two quarters to make up a budget shortfall of $137,000 in solid waste management.

Troast said the shortfall is attributable to a recent increase in tipping fees at the county’s landfill. This creates a trickle-down effect. Blue Diamond Disposal, the company that provides public garbage service to Sparta, has seen its operation costs increase, and it is within the bounds of its contract with the township to raise customers’ fees to make up the difference.

Despite the slight increase in solid waste fees, Seelagy said that residents’ annual costs will still be much lower than if they used private garbage services.

Vernon certifies petition to change government

September 14, 2010

By PHILLIP MOLNAR

VERNON — The township decided Monday night to validate a petition to change the municipality’s form of government, despite rejecting it last week.

The decision by township attorney John Ursin, with the apparent support of the council, brought a round of applause from the more than 40 members of the public in attendance — but it was not without controversy.
Mayor Sally Rinker and Councilman Richard Carson appeared to urge Ursin to expedite the process. “Let’s get this over with,” Carson said.

Ursin then decided, with a nod of support from Acting Township Clerk Angie Bates, that the petition could be certified Monday.

A letter from Bates Thursday stated the petitioners were 70 signatures short of the needed number to get the question before voters.
The petitioners responded to the decision by retaining Newton attorney Eric Wood, who argued their case to Ursin Monday afternoon. Many of the 618 rejected signatures were, in fact, valid, according to petitioners Mary Ellen

Vichiconti and Bonnie Rubin who personally reviewed the rejected names.
“It’s a shame it had to come to this,” Rubin said, of confronting Ursin with the group’s own attorney.
The petition seeks the establishment of non-partisan elections, direct election of a full-time mayor, and altering the duties of a township administrator to deal solely with township finances and business. The petition was submitted to Bates Aug. 23, giving her 10 days to review it to meet a Sept. 3 deadline to get the issue on the November ballot. Bates missed that deadline but completed her review within the allotted 20 days required by law.

The issue should now go before voters in a special election, but the petitioners are opposed to this because it would result in added costs to taxpayers
Wood said he would be bringing the petition to Superior Court Judge B. Theodore Bonzonelis in order to get the petition on the November ballot, but needed the approval of the township Monday evening in order to go before the judge.

Wood said if the petition was not certified Monday night, he would have spent the next “six or seven hours” preparing a complaint against the township and Sussex County.
The discussion was far from over, however. Sparta activist Jesse Wolosky, well-known for several of his own petitions in Sparta, question the validity of the petition. Wolosky alleged the initiative petition papers did not contain the full text of the proposed ordinance, each separate petition page did not have an attached affidavit stating circulators were the ones collecting signatures, and said the petitioners got more signatures than needed.
Petitioner Jessi Paladini then took to the microphone, questioning Wolosky’s “motivation for being here” and saying “he was 100-percent wrong.” A shouting match between the two went on for several minutes, while Rinker repeatedly slammed her gavel and yelled for order. Wolosky was eventually asked to leave the meeting by Rinker.

After the meeting, Wolosky said, “I wanted to make sure both sides were following the law regarding the petition process.”

Ursin confirmed after the meeting was adjourned the petition would be validated by Bates Monday evening and physically delivered to the Board of Elections today.

State lowers price tag for public records

September 12, 2010

By PHILLIP MOLNAR

NEWTON -- Martin O'Shea, a former journalist and open government advocate, called his municipality's township manager in fall 2008 and asked her to lower public fees for government records.

O'Shea spent much of his life, especially his 18 retirement years, bringing much-needed reform to open government and the Open Public Records Act -- a tool for everyday New Jerseyans to learn the inner workings of their government in a state well known for corruption.

Hardyston Township Manager Marianne Smith said last week she couldn't remember what came first, "the chicken or the egg," but the township soon decided after speaking with O'Shea to lower its fees for paper copies of government documents and audio recordings of meetings.

The township became the first municipality in Sussex County to lower fees to 10 cents per copy. The rest of the county took longer.

"Trying to cause change takes time; it takes effort," said Sparta activist Jesse Wolosky, who was also fighting to lower government record fees around the same time as O'Shea.

The activists' hard work paid off. Today all municipalities in the county charge 10 cents or less per paper copy -- instead of as much as 75 cents as many once did -- and the change is happening all over the state.

Sussex County was one of the "isolated pockets" in the Garden State that pushed officials to lower fees for government records, according to John Paff, the chairman of the New Jersey Libertarian Party's Open Government Advocacy Project.

Late Friday afternoon, a bill lowering the fee of letter size paper documents to 5 cents per copy and legal size pages to 7 cents per copy was signed by Gov. Chris Christie.

Now, the average citizen who was once charged $7.50 for 10 pages of government records, will instead pay just 50 cents.

The bill, which also made documents sent by fax and e-mail free, had been approved by the state Legislature in June. Christie had until Monday to sign or veto the bill.

New Jerseyans have more access to government documents, such as budgets and meeting minutes, since 2002, when the Open Public Records Act, known as OPRA, was passed. But confusion about how much to charge for government records has baffled municipalities since.

"The Legislature didn't know what the Legislature meant," Paff said.

Regardless, individuals concerned about government transparency fought hard to change what they said was an injustice.

The problem, as Wolosky and many others saw it, was that the bill's default rate for what to charge the public for paper copies was 75 cents per page (the maximum allowable by law) for the first 10 pages -- but nowhere in the law did it say the government agencies should charge that much, especially considering one sheet of paper and toner hardly reached that amount.

The public could also be charged 50 cents for each of the next 10 pages and 25 cents for every page after that.

"They should have been charging actual costs," Wolosky said, noting the law did not allow agencies to charge labor costs. "It was a shakedown, and people weren't aware of it."

O'Shea had already reduced fees for records in the County Clerk's Office, Andover Township and Hardyston, when Wolosky revved up his own campaign to lower fees in summer 2009. Although the two individuals were on similar missions, they never met.

"We were doing the same thing," Wolosky said. "But we took different paths."

Wolosky started out the year settling a complaint with the Government Records Council, which oversees OPRA complaints, against Hopatcong. Before his complaint, Hopatcong had been charging $20 for audio recordings, the maximum amount for government records, and was not using the model OPRA form.

Wolosky later convinced Hamburg, Stillwater, Newton, Vernon and Walpack to lower their fees after personally speaking with the clerks.

"I just walked in and asked the clerk, who was very pleasant, and said, 'Would you mind lowering the fees for audio and paper?'" he recalled of visiting Hamburg Clerk Doreen Schott, who then presented a proposed change to the council.

In May 2009, he e-mailed the remaining 16 Sussex County municipalities seeking fee reductions. Most of them lowered the fees, or had done so already. Fredon and Green were final holdouts in the county.

Sussex County may have been ahead of the curve with the OPRA law, but thanks to a February state appellate court ruling, the rest of the state caught up.

In his opinion, Judge Jack Sabatino wrote that beginning July 1, "The defendant counties (Hudson, Hunterdon, Morris, Middlesex, Mercer, Passaic and Sussex) and other government agencies may not charge requestors more than the 'actual costs' of photocopying government records."

The rest of New Jersey, not just the seven counties included in the appellate decision, will start next week finding it more affordable to obtain government records.

"This new law brings a new day for transparency in New Jersey," wrote Bobby Conner of the New Jersey American Civil Liberties Union in a press release Saturday morning. "Now public records will be more available to everyone, not just those who can afford it. It will help New Jersey's citizens to better hold their officials accountable."

Error leads to privacy breach

June 30, 2010

By SETH AUGENSTEIN

SPARTA — A local activist’s recent public records request resulted in some extra information — including some personal Social Security numbers, and some federal tax identification numbers.

Jesse Wolosky, a well-known Sparta activist who recently lost a bid for a township council seat, put in a request for a list of vendors to the Sparta Board of Education, board President Jennifer Dericks said.

However, the list including redacted confidential information — such as the Social Security and tax identification numbers — got switched with the documents that still had all the information intact. The extra information was sent to Wolosky.

“The wrong list got sent out,” Dericks said. “It was an error; it was a mistake. It was a bad one.”

The mistake was not a widescale security breach, like computer hacking, Dericks said; instead, the leak of information is limited to Wolosky.

She said the school district sent Wolosky a letter asking for the return of the numbers; it also informed him any use of the information would be a breach of Open Public Records Act rules.

The law precludes government records custodians from giving out personal, sensitive or otherwise compromising information about public employees.

Wolosky called the Social Security number release a “bad government practice.”

“These are the people who educate and protect our children, and they can’t even protect our Social Security numbers,” he said.

Wolosky declined to give further specifics on the extent of personal data he received. He said he had no plans to use any of the information for any purpose.

John Paff, the chairman of the Open Government Advocacy Project of the New Jersey Libertarian Party, said the Sparta schools had “violated OPRA” when it came to releasing the sensitive information.

“They’re not supposed to release this stuff, but office errors do happen,” Paff said.
“It highlights the need for custodians to be careful — once the genie’s out of the bottle, there’s no getting it back in,” he added.

Sparta fires township manager

May 11, 2010

By SETH AUGENSTEIN

SPARTA -- The Township Council fired Township Manager Henry Underhill Monday night, after a week of closed-door meetings and rumors.

The council's decision was unanimous. Although terms of the separation agreement were not publicly available until today, the council also agreed to appoint David Troast, the township planner, to the role of interim administrator in a separate, also unanimous vote.

Underhill was appointed township manager in 2000. He had previously been business administrator for Irvington, as well as serving a 15-year stint as the administrator for Chatham Borough.

Underhill has faced some recent opposition and apparent disfavor in Sparta,
however.

When state aid reductions were unveiled in March, the council met to discuss how best to cut about $300,000 it had anticipated that had been removed. But those discussions were put off; Underhill was on vacation, and the council was awaiting his suggestions. (Even before the state cut aid, the municipality also had to account for an unexpected nearly $1 million shortfall, due to a drop in collected taxes, among other factors.)

Differences between Underhill and the council were made public when the manager returned from vacation. The council instructed him at the April 12 council meeting to reduce the secretarial staff of the police department. But by the next meeting on April 22, Underhill had not done so -- and instead came up with a separate proposal that he said the "chief would prefer."

After several minutes of discussion, the council overrode Underhill's plan.

In mid-April, too, the council passed an ordinance over Underhill's protests allowing a councilman to sit in on the township's union negotiations. Underhill had balked, saying that it "undermined the position of the township manager." The council assured him otherwise.

Criticism has also come from the candidates seeking council seats in today's local election. One of the newcomers unveiled the firing of Underhill as a prime campaign promise, and he even said Underhill's personal finances were a reason for doing so.

Underhill and his attorney declined comment.

Two years ago, Underhill interviewed for the position of village manager for Islamorada, Fla. The video of the interview was made public at the time on the village's website.

Election means Frankford power shift

December 10, 2009

By CHRISTINA TATU

FRANKFORD — Emery “Sam” Castimore’s victory Tuesday versus Paul Sutphen completes a dramatic power shift on the township committee between two sides that have been at odds the past few years.

Castimore joins Bill Hahn, a township committeeman since 1996, and Gary Larson, who will take office in January after his Election Day win, as a solid bloc that has said it wants to reverse the township’s recent anti-development direction and settle a lawsuit filed by a developer wanting to build an outlet mall in the township. It will be both Castimore’s and Larson’s first time serving on the township committee.

Hahn, who supported the recall efforts aimed at both Sutphen and Robert McDowell, has disagreed with some of the more controversial ordinances approved by that duo the past two years. In particular, this new group opposes ordinances passed earlier this year to limit commercial development on the township’s main corridors — state Route 206 and county Route 565 — as the catalyst behind the recall efforts.

Castimore said he’d like to see the development be “green” businesses, but also wants to maintain the township’s historic agriculture base.

Hahn, Larson and Castimore said they plan to modify those ordinances, as well as a defense and indemnification ordinance passed earlier this year.

The defense and indemnification ordinance provides legal counsel and indemnification for township officials, employees and appointees who may not be fully covered by the township’s insurance policy. The ordinance was recommended by township attorney Kevin Benbrook, who after reviewing the town’s law books noticed they did not have an ordinance that most state municipalities have.

The new committee members said they plan to remove the section that offers coverage for punitive damages, or compensatory fees that are sometimes imposed by a court when a defendant’s conduct is found to be intentional or malicious.

“Our intention is to go in and make sure things work the way they should, fairly for everyone within the community,” Larson said. “Again, all of this is not about Ross’ Corner (the site of the proposed town center), although many people may think that. It’s about the entire township.”

Hahn said he hopes the committee can resolve a lawsuit filed against the township in August 2008 by outlet mall developer Sussex Commons. The suit alleges Sutphen, McDowell and members of the plan endorsement advisory committee were biased against the mall project and asks that a special judge be appointed to oversee the township planning process.

The suit does not seek specific damages, although Sussex Commons attorney Kevin Kelly has estimated the mall project to be worth about $90 million.

The township also is facing a second development lawsuit after Lorterdan Properties at Frankford LLC, the developer of a proposed 270-unit housing plan and six-to nine-hole golf course located a Ross’ Corner, filed a lawsuit in September against the township committee and land use board alleging they violated a 2003 developer’s agreement.

Castimore wins Frankford seat

December 9, 2009

By CHRISTINA TATU

FRANKFORD -- Mayor Paul Sutphen was recalled in Tuesday's special election, the first recall election for a government official in Sussex County.

Taking Sutphen's place on the township committee will be local veterinarian Emery "Sam" Castimore.

The first question on the ballot asked if Sutphen should be recalled from the township committee.

According to unofficial results Tuesday, that question passed with 53 percent, or 850 votes, for the recall and 767, or 47 percent, against it.

The second question asked voters to choose a replacement for Sutphen.

New Jersey's election law allowed Sutphen to run as a candidate on the ballot.

Castimore won with 54 percent, or 863 of the votes; Sutphen received 722 votes, or 46 percent.

"I am deeply concerned with the direction the new majority will take Frankford," Sutphen said in a prepared statement Tuesday night. "As for my recall, I can say that I have carried out my responsibilities of Township Committeeman to the best of my abilities."

Sutphen, 72, has served as a member of the township committee, land use board and plan endorsement advisory committee since he took office in 2008. Had he not been recalled, his term would have expired December 2010.

Castimore, 59, ran against committeeman Robert McDowell in 2006. McDowell was defeated in the June primary by recall activist, Gary Larson.

"I'm thrilled that an informed group of voters in Frankford township have decided to take back our town because they are more aware of issues than people who choose to keep their heads in the sand with local, state and national politics as they are," Castimore said. "We need sustained controlled growth in our country or our children and grandchildren are doomed."

County Board of Elections Administrator Marge McCabe said Castimore will be sworn in to office as soon as the ballots are certified, but did not know how long that would take.

Recall organizers have said Sutphen made decisions on township issues based on his own personal agenda and not for the benefit of residents.

They specifically cite ordinances passed earlier this year that limit commercial development on county Route 565 and state Route 206. The ordinance does not change the zoning, but prohibits the building of strip malls, service stations, restaurants without wait staff and box stores.

Landowners worry the ordinance would decrease their property values, and recall supporters have questioned whether the move is an attempt to oust the Sussex Commons outlet mall, a 90-store outlet center proposed for the town center at Ross's Corner.

Frankford recall election set today

December 8, 2009

By CHRISTINA TATU

FRANKFORD -- Township residents today will have the first recall election for a government official in Sussex County's history.

The first question on the special election ballot will ask voters if they wish to recall Mayor Paul Sutphen from the Township Committee. A second question will ask voters to choose a replacement if Sutphen is recalled.

New Jersey's election law allows Sutphen to run on the ballot as a candidate for his own seat.

Sutphen, 72, and local veterinarian and recall activist Emery "Sam" Castimore, 59, will appear on the ballot as candidates for the seat.

The special election will take place during regular election hours from 6 a.m. to 8 p.m.

Frankford's four voting districts are located at the municipal building, 151 state Route 206, Augusta; at the Frankford Township School, 2 Pines Road; at the Frankford Township Firehouse 2, 34 Pelletown Road; and at the American Legion, 157 state Route 206.

To have the recall election, petitioners needed to gather the signatures of at least 25 percent of the municipality's voters registered during the last general election.

The special election will cost township taxpayers about $15,500.

Sutphen, an opponent of the proposed Sussex Commons outlet mall, entered office in 2008, with his first term set to expire December 2010.

He also has served as a member of the land use board and plan endorsement advisory committee since 2008.

Castimore ran against committeeman Robert McDowell in 2006. Castimore has been one of the main supporters of the recall election. If Sutphen is recalled and Castimore is elected, it would be his first time serving on the Township Committee.