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2005-130
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FINAL DECISION |
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Supplemental Findings and Recommendations of the Executive Director |
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Interim Order |
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Findings and Recommendations of the Executive Director |
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Administrative Case Disposition |
FINAL DECISION
At the September 21, 2006 public meeting, the Government Records Council ("Council") considered the September 7, 2006 Supplemental Findings and Recommendations of the Executive Director and all related documentation submitted by the parties. The Council voted unanimously to adopt the entirety of said findings and recommendations. The Council, therefore, finds that the Custodian have complied with the Council's August 10, 2006 Interim Order.
This is the final administrative determination in this matter. Any further review should be pursued in the Appellate Division of the Superior Court of New Jersey within forty-five (45) days. Information about the appeals process can be obtained from the Appellate Division Clerk's Office, Hughes Justice Complex, 25 W. Market St., PO Box 006, Trenton, NJ 08625-0006. Proper service of submissions pursuant to any appeal is to be made to the Council in care of the Executive Director at the State of New Jersey Government Records Council, 101 South Broad Street, PO Box 819, Trenton, NJ 08625-0819.
Final Decision Rendered by the Government Records Council On The 21st Day of September, 2006
Vincent P. Maltese, Chairman
I attest the foregoing is a true and accurate record of the Government Records Council.
Robin Berg Tabakin, Vice Chairman & Secretary Supplemental Findings and Recommendations of the Executive Director
Records Relevant to Complaint:
Request Made: June 3, 2005 Response Made: No Response Custodian: Eve Robinson GRC Complaint Filed: June 30, 2005
Background
August 10, 2006 Government Records Council's ("Council") Interim Order. At its August 10, 2006 public meeting, the Council considered the August 3, 2006 Findings and Recommendations of the Executive Director and all related documentation submitted by the parties. The Council voted unanimously to adopt the entirety of said findings and recommendations. The Council, therefore, found that:
August 15, 2006 Council's Interim Order distributed to the parties.
August 23, 2006 Custodian's response to the Council's Interim Order. The Custodian copied the Executive Director of a letter addressed to the Complainant with an enclosure of the requested record.
August 29, 2006 Custodian's Certification of Compliance with the Council's Interim Order. The Custodian legally certified that she complied with the Council's August 10, 2006 Interim Order. Analysis
Whether the Custodian complied with the Council's August 10, 2006 Interim Order?
Pursuant to the Custodian's letter to the Complainant dated August 23, 2006 with the enclosure of the requested record and the Custodian's legal certification to the Executive Director asserting to her compliance with the Council's August 10, 2006 Interim Order, it may be determined that the Custodian did comply with such Interim Order. Conclusions and Recommendations
The Executive Director respectfully recommends the Council find that the Custodian has complied with the Council's August 10, 2006 Interim Order.
Prepared By: Catherine Starghill, Esq. Executive Director [1] There is no legal representation of record. [2] The Custodian is represented by Robert Goodsell of Post, Polak, Goodsell, MacNeill & Strauchler, P.A. (Roseland, New Jersey). Interim Order
At the August 10, 2006 public meeting, the Government Records Council ("Council") considered the August 3, 2006 Findings and Recommendations of the Executive Director and all related documentation submitted by the parties. The Council voted unanimously to adopt the entirety of said findings and recommendations. The Council, therefore, finds that:
Interim Order Rendered by the Government Records Council On The 10th Day of August, 2006
Vincent P. Maltese, Chairman
I attest the foregoing is a true and accurate record of the Government Records Council.
Robin Berg Tabakin, Vice Chairman & Secretary Findings and Recommendations of the Executive DirectorAugust 10, 2006 Council Meeting
David Herron [1] GRC Complaint No. 2005-130 Complainant
v.
Montclair Community Pre-K Center[2] Custodian of Records
Records Relevant to Complaint:
Request Made: June 3, 2005 Response Made: No Response Custodian: Eve Robinson GRC Complaint filed: June 30, 2005
Background
June 3, 2005 Complainant's letter requesting records. The Complainant sought annual budget information and a list of all salaries for employees of the Montclair Community Pre-K Center. (The Custodian alleges that she never received a copy of the June 3, 2005 letter.)
June 30, 2005 Denial of Access Complaint filed with the Government Records Council ("GRC"). The Complainant alleges that he did not receive a response to his Open Public Records Act ("OPRA") request. The Complainant attached the original OPRA request to his denial of access complaint form.
July 6, 2005 Offer of mediation sent to both parties.
GRC staff received the Complainant's signed agreement to mediate.
July 7, 2005 E-mail correspondence between the Custodian's Counsel and GRC staff. Counsel alleges that the Director of the Montclair Community Pre-K stated that she never received a copy of the alleged June 3, 2005 OPRA request. The Custodian further told Counsel that she had received correspondence from the Complainant on May 28, 2005 and she responded to that letter on June 17, 2005. However, those two letters are not referenced in the Denial of Access Complaint. The Custodian further alleges that while she did receive an unsigned copy of the complaint, the June 3, 2005 letter was not attached. Counsel acknowledges that a copy of the letter was received by their office after the complaint was filed. Counsel alleges that due to the nature of the Pre-K as a non-profit corporation, Counsel does not consider the Montclair Community Pre-K to be subject to OPRA. Counsel further asserts that while the Montclair Community Pre-K should not be subject to OPRA, he did provide a portion of the requested records to the Complainant. Counsel stated that he did not provide the Complainant with a list of salaries because the Montclair Community Pre-K is not a public entity.
July 8, 2005 GRC staff sent e-mail correspondence to the Complainant. GRC staff asked for clarification of issues of the Denial of Access Complaint. The Complainant responded via e-mail that the only items remaining at issue in the complaint was access to the budget and salary information for the Montclair Community Pre-K.
July 8, 2005 GRC staff received the Custodian Counsel's agreement to mediate. The Custodian's counsel did reiterate that the Montclair Community Pre-K may not be subject to OPRA, however they decided to participate in mediation.
July 11, 2005 The complaint was sent to mediation.
November 14, 2005 The complaint was referred back from mediation for adjudication.
December 5, 2005 GRC staff sent a request for a Statement of Information to the Custodian.
December 6, 2005 Custodian's Counsel requested an extension of time to respond to the request for a Statement of Information due to schedules at the Montclair Community Pre-K. The Custodian was given a two-week extension.
December 22, 2005 Custodian's Counsel attached the following documents to the Statement of Information:
GRC staff received the Custodian's Statement of Information prepared by Custodian's Counsel. Counsel alleges that the GRC is limited in its jurisdiction of the case because the Montclair Community Pre-K is not a public agency. Counsel states that the case should be dismissed and the matter should be addressed by the court if the Complainant wants to pursue his request. Counsel asserts that OPRA provides that the Council's authority is jurisdictional regarding the disclosure or nondisclosure of documents that are considered to be government records. Counsel further asserts that OPRA does not give the Council authority to determine whether a non-profit corporation should be deemed a public agency. Counsel stated that the Pre-K operates independently from the municipality. Counsel states that while the Montclair Community Pre-K does receive contributions from the Montclair Board of Education (BOE), the Pre-K is supported by student tuition and other forms of revenue. Counsel further alleges that the Pre-K provides a service under a contractual agreement with the BOE. Counsel asserts that due to the financial structure of the Montclair Community Pre-K and it business operations, it is not a public agency as defined in OPRA. Counsel goes on to state that in the case of The Trenton Times v. Lafayette Yard Community Development Corporation, 183 N.J. 519 (June 2005), it was determined that the Lafayette Yard Development Corporation (Lafayette Yard) was subject to OPRA. Counsel alleges that the characteristics of Lafayette Yard and the Montclair Community Pre-K are vastly different. Counsel asserts that Lafayette Yard was created as an "instrumentality" of the city, however the Montclair Community Pre-K has complete autonomy from the Township. Counsel also alleges that the Pre-K was not formed to assist the Township. While the Township does assist the Pre-K by making periodic contributions, Counsel further states that pursuant to N.J.S.A. 40:23-8.2.a., local governments are permitted to make contributions to private or non-profit entities without receipt of those contributions making the non-profit entity a public agency that is subject to OPRA.
June 13, 2006 Letter to the Custodian's Counsel from GRC staff requesting clarification of previous submisions from the Custodian's Counsel. (Please see the chart listed below the June 20, 2006 entry which provides the questions asked by GRC Staff.)
June 20, 2006 Response from the Custodian's Counsel to the GRC staff providing answers to the questions asked in the June 13, 2006 correspondence. (Please see the below listed chart which provides the response that was given.)
June 24, 2006 GRC staff received a response to the June 20, 2006 submission from the Custodian's Counsel. Specifically, the Complainant addresses the response of certain questions that were asked. The following is a list of attachments submitted by the Complainant:
With regard to Counsel's reply about the supplies that the Pre-K utilizes, the Complainant asserts that the response given is only partially correct. The Complainant asserts that there are items that are paid for by the Board of Education. The Complainant states that maintenance to the Pre-K facility has been paid for by the Board of Education. He further asserts that from 1998 thru 2003 oil, gas and electric for the Pre-K were paid for by the Board of Education. In support of his position, the Complainant attached a copy of an Montclair Board of Education Interoffice Memo written by the Director of the Buildings and Grounds Department, dated June 24, 2003 regarding the maintenance costs and a memo that shows the utility costs by the Buildings and Grounds Department in association with the Pre-K from 1998 to 2003. The Complainant also attached a ledger page from the Montclair Board of Education titled, Ledger by Vendor dated 6/23/2006 which he asserts demonstrates that supplies and facilities maintenance have been paid for by the Montclair Board of Education. The Complainant also addressed Counsel's response regarding the salaries of the Pre-K employees. Counsel contends that salaries and benefits are not paid by the Board of Education or the Township. The Complainant asserts that the Pre-K would not be able to pay their employee's salaries without the $675,000 of revenue that it receives from the Township of Montclair. The Complainant further asserts that there is documentation that supports his allegation that the Pre-K was created by the Township Council via a resolution. The Complainant alleges that the Pre-K has to be a public agency because the trustees for the Pre-K are appointed by the Township Council and the Board of Education. The Complainant attached an article from The Montclair Times which he asserts further propels his allegation that the Pre-K is a public agency. The Complainant alleges that the following statement made by the Pre-K's Chairman of the Board of Trustees, Jane Susswein to the Montclair Times acknowledges that the Pre-K was created by the Township: "Lastly, our gratitude to the Township Council, who took the lead in creating and helping to finance this program which serves all children in Montclair, no matter what their family income, with a program of which we are rightfully proud." Lastly in support of his position that the Montclair Community Pre-K is a public agency, the Complainant attached a page from a report created by the Center for the Study of Social Policy. The Complainant asserts that this document confirms the fact that the Township created the Pre-K to give residents equal access to early childhood education. In his conclusion, the Complainant requests that the GRC consider his submissions and declare that the Montclair Community Pre-K is a public entity and that they are subject to OPRA.
June 26, 2006 GRC staff received a response from the Custodian's Counsel regarding the Complainant's June 24, 2006 submission. Counsel states that the Board of Education utilizes a portion of classrooms located in the Pre-K and therefore the Board of Education has contributed toward maintenance costs and provided utilities to the Pre-K. Counsel states that this arrangement is not uncommon between a landlord and tenant or tenant and subtenant. Counsel further asserts that the ledger provided by the Complainant is consistent with the contractual arrangements between the Board of Education and the Pre-K. Counsel asserts that many of the entries listed on the ledger relate to the Board of Education's utilization of space in the Pre-K facility for the Board's special needs program. Counsel asserts that the Board has reimbursed a portion of capital costs to the Pre-K for modular classrooms that the Pre-K constructed. Counsel also asserts that the ledger further shows tuition paid by the Board of Education for two special needs students to attend the Pre-K and payment for a parenting class that the Pre-K provided as a vendor to the Board. Counsel further alleges that as stated in previous submissions, the Pre-K's primary source of income is from paid tuition. He goes on to state that all salaries and benefits are paid for by the Pre-K and while tuition is their primary source of income, the Pre-K does receive a generous annual contribution from the Township. In conclusion, Counsel states that he has provided his Statement of Information documentation that proves that the Pre-K is not a public agency. Counsel states that the Complainant's "spin" on the presented facts do not change the fact that the Montclair Community Pre-K is not a public agency subject to OPRA. He further asserts that the Pre-K has provided certain records to the Complainant, however if the Pre-K is not subject to OPRA as is the Pre-K's position, the Pre-K is not willing to release employees' salary information. Analysis
Whether the Montclair Community Pre-K is a public agency pursuant to OPRA?
OPRA defines a public agency as: "...[a]ny of the principal departments in the Executive Branch of State Government, and any division, board, bureau, office, commission or other instrumentality within or created by such department; the Legislature of the State and any office, board, bureau or commission within or created by the Legislative Branch; and any independent State authority, commission, instrumentality or agency. The terms also mean any political subdivision of the State or combination of political subdivisions, and any division, board, bureau, office, commission or other instrumentality within or created by a political subdivision of the State or combination of political subdivisions, and any independent authority, commission, instrumentality or agency created by a political subdivision or combination of political subdivisions." N.J.S.A. 47:1A-1.1.
The Custodian and Counsel certify that Montclair Community Pre-K is a "non-profit, non-sectarian 501(c)(3) organization" and submitted copies of their Certification of Incorporation and amendment to same, which Counsel contends is proof that Montclair Community Pre-K is not a public agency governed by OPRA. Additionally, the Custodian's Counsel references the contract agreement between the Montclair Community Pre-K and the Township as further support for their position by specifically noting that:
Most definitions of "public agency" under New Jersey statutes and the Administrative Code resemble that contained in OPRA. However, the Open Public Meetings Act ("OPMA") defines "public body" as a commission, authority, board, council, committee or any other group of two or more persons organized under the laws of this State, and collectively empowered as a voting body to perform a public governmental function affecting the rights, duties, obligations, privileges, benefits, or other legal relations of any person, or collectively authorized to spend public funds. (Emphasis Added.) N.J.S.A. 10:4-8a. The OPMA definition of a public body requires that an entity, "... (1) consist of 'two or more persons' and (2) be 'collectively empowered as a voting body' (3) to perform a public governmental function affecting the rights, duties, obligations, privileges, benefits or other legal relations of any person or collectively authorized to spend public funds.' N.J.S.A. 10:4-8a..." The Times of Trenton Publishing Corp. v. Lafayette Yard Community Development Corp., 368 N.J.Super. 425, 846 A.2d 659 (April 2004). In that case, the court held that: (1) a private, non-profit corporation created for the express purpose of redeveloping property donated to it by the city of Trenton, (2) having a Board of Trustees appointed by the Mayor and City Council, (3) with the mandated reversion of the donated property after the completion of the project and repayment of the debt, (4) having corporate Bylaws requiring the distribution of all assets to the city upon the dissolution or liquidation of the corporation, (5) having a Disposition Agreement with the city that designates the city as the "agency" and the corporation as the "redeveloper" pursuant to the Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-1 to -49, and (6) having the authority to issue tax-exempt bonds for the financing of the project qualified the corporation as a "public body" under OPMA. The court further held that the corporation was "an 'instrumentality' created by the City and a 'public agency' under the OPRA for essentially the same reasons that it is a 'public body' under the OPMA." Id. at 442,670. The decision of the Superior Court that Lafayette Yard Community Development Corp. qualifies as a "public body" was affirmed by the New Jersey Supreme Court (Times of Trenton, 183 N.J. 519, 874 A.2d 1064 (June 2005)). See also Snyder v. American Association of Blood Banks, 144 N.J. 269, 676 a.2d 1036 (1996) (finding that the legislature did not create or authorize the AABB to perform a specific governmental purpose); Williams v. National Car Rental System, Inc., 225 N.J.Super. 164, 541 A.2d 1125 (1988) (finding that the broad powers conferred upon the Port Authority leave no doubt that it is a public authority or public agency); Blazer Corporation v. NJ Sports and Exposition Authority, 195 N.J.Super. 542, 480 A.2d 953 (1984) (citing Wade v. N.J. Turnpike Authority, 132 N.J.Super. 92, 332 A.2d 232 (Law Div. 1975), "The Court noted the official comment to N.J.S.A. 59:1-3: 'The definition of 'Public Entity' provided in this section is intended to be all inclusive and to apply uniformly throughout the State of New Jersey to all entities exercising governmental functions.'"). Additionally, two rules in the Administrative Code define "public agency" more precisely than other rules and statutes by adding the following language to the usual definition, "... agencies exercising sovereign powers of government." This language is very illustrative of the meaning of public agencies, as explained by the court in the Lafayette Yard cases cited above. While other state statutes and rules do not include this language, it appears that the New Jersey Supreme Court confirms that "exercising sovereign powers of government" is required for an entity to be deemed a public body or agency. The same rules that govern the principles by which the court established that Lafayette Yard was a "public body", must be utilized in this case to determine if the Montclair Community Pre-K is a public body which is subject to OPRA. The Montclair Community Pre-K has submitted a copy of their Bylaws and other information that has assisted in determining the following:
The Custodian's Certificate of Incorporation establishes that the Montclair Community Pre-K is a private, nonprofit corporation whose purpose is to provide the development of child care programs in order to promote and assist the continuous educational, physical, social and intellectual growth and general well being of children in the community. The Custodian also submitted documents that explain the Montclair Community Pre-K has a contractual service agreement with the Township and is an independent contractor, not under the employment of the Township of Montclair. While the Montclair Community Pre-K is not empowered to perform public functions or authorized to spend governmental funds, it is subject to control or involvement by the Township in a manner more significant than their contractual relationship. The Bylaws mandate that all members of the Board of Trustees are appointed through Township Council or the Montclair Board of Education. Additionally, the Bylaws of the Pre-K state that the Pre-K must turnover any assets to the Township if the Township decides to render its own Pre-K services or if the Montclair Community Pre-K ceases to exist. In consideration of all of these characteristics of the Pre-K taken together, the Pre-K is a public agency as provided for under OPRA and is obligated under the provisions of OPRA, including the provision which requires public agencies to create an official OPRA records request form (N.J.S.A. 47:1A-5.f.).
Whether there was an unlawful denial of access to the annual budget and the list of salaries for all employees of the Montclair Community Pre-K Center?
OPRA provides that:
"...government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions..." N.J.S.A. 47:1A-1.
Additionally, OPRA defines a government record as:
"... any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in a similar device, or any copy thereof, that has been made, maintained or kept on file... or that has been received..." (Emphasis added.) N.J.S.A. 47:1A-1.1.
OPRA places the onus on the Custodian to prove that a denial of access is lawful. Specifically, OPRA states:
"...[t]he public agency shall have the burden of proving that the denial of access is authorized by law..." N.J.S.A. 47:1A-6.
OPRA further provides that:
"Notwithstanding the provisions of [OPRA] or any other law to the contrary, the personnel or pension records of any individual in the possession of a public agency, including but not limited to records relating to any grievance filed by or against an individual, shall not be considered a government record and shall not be made available for public access, except that: an individual's name, title, position, salary, payroll record, length of service, date of separation and the reason therefore, and the amount and type of any pension received shall be a government record..." (Emphasis Added.) N.J.S.A. 47:1A-10.
The Custodian's Counsel alleges that the Montclair Community Pre-K was not a public agency. However, he did release a copy of the annual budget to the Complainant when he submitted the Statement of Information to the GRC. The Complainant has acknowledged receipt of the budget, but has not received a copy of the employee's salaries. Counsel asserted that because the Montclair Community Pre-K is not a public agency, it is not subject to OPRA, and therefore the salaries were not disclosed to the Complainant. Since the Pre-K is a public agency under OPRA, the Custodian has unlawfully denied access to government records pursuant to OPRA. Thus, the Custodian should release the requested salaries of employees to the Complainant. . Conclusions and Recommendations
The Executive Director respectfully recommends the Council find that:
Prepared By: Kimberly Gardner Case Manager
Approved By: Catherine Starghill, Esq. Executive Director [1] The Complainant has not obtained legal counsel. [2] The Custodian is represented by Robert Goodsell of Post, Polak, Goodsell, MacNeill & Strauchler, P.A.. The office is located in Roseland, New Jersey. [3] Or, if that organization is not then existing, to a similar non-profit corporation exempt from Federal income tax, whose purpose include the advancement of public education within the Montclair community. Administrative Case DispositionGRC Complaint No: 2005-130Complainant: David Herron Custodian: Montclair Community Pre-K Center - Eve Robinson Case Disposition: Parties mutually agreed to mediation Date of Disposition: August 11, 2005 Case Manager: Kimberly D. Gardner Date: August 5, 2005 |
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