On August 23, 2012, the Township of Wayne (Passaic County) agreed to pay $220,000 to a local car wash/quick lube center and its owner.  In its lawsuit, the car wash, Wayne Auto Spa, which advertises itself as being “environmentally responsible” claimed that the Township “unlawfully targeted [its] efforts to install a wind powered electric system on its premises.  The Auto Spa’s owner, Robert Burke of Morristown, alleged that Wayne officials subjected him to “invidious discrimination” because of “his outspoken advocacy for the wind energy system.” 

Burke alleged that he was the campaign manager for William Brennan, who challenged Council incumbent and Planning Board member Paul Margiotta in an election.  He claimed that his support of Brennan resulted in the Council and Planning Board taking action to “impede, frustrate and prohibit the Wayne Auto Spa application for approval of a proposed wind energy system.”

Burke claimed that Joseph Connolly of Wayne, who is a retired Bergen County Sheriff’s Officer, opposed his wind energy proposal and threatened him.  Specifically, Burke claimed that Connolly e-mailed him that “I will come back and see you about this.  I expect you to get the point this time around.”

Burke also claimed that Connolly came to the Auto Spa, flashed his Sheriff’s badge and told him “I will kick your ass” unless he stopped pursuing his wind energy application.  The threats, he claimed, were not investigated by the Wayne Police Department or the Passaic County Prosecutors’s Office despite his repeated requests.

Burke further claimed that the Wayne Police Department “began stopping patrons of Wayne Auto Spa who were making or attempting to make left turns,” which Burke said are legal, into his business.  This, according to Burke, was the police department’s attempt to intimidate and harass his customers.

During an October 20, 2011, “sealed settlement conference” before U.S. District Court Magistrate Judge Joseph A. Dickson, Burke and Wayne Auto Spa agreed to a) accept $220,000 as a settlement amount, b) not disclose the amount of the settlement to anyone, c) not disparage Wayne or its officials and d) to not file any more Open Public Records Act (OPRA) requests regarding any matters relating to his lawsuit.  The settlement was made contingent upon the failure of a legal challenge to Burke’s application to the Planning Board for permission to install his wind turbine system.   The transcript from the October 20, 2011 conference, together with a transcript of another conference held on October 24, 2011, are on-line here.

Fortunately, however, confidentiality provisions, such as the one agreed to in this case, do not trump the public’s right to obtain copies of settlement agreements that arise out of lawsuits in which a government agency or official is a defendant.

The case is captioned Burke v. Wayne, Federal Case No. 11-cv-1066 and Burke’s attorney was, at least initially, R. William Potter of Princeton.  The lawsuit is on-line here and the settlement agreement is here.  The resolution under which the Township Council accepted the settlement is on-line here.

None of Burke’s or Wayne Auto Spa’s allegations have been proven or disproven in court. The settlement agreement resolution expressly states that the $220,000 payment does not constitute an admission of wrongdoing by Wayne or any of its officials. All that is known for sure is that Wayne or its insurer, for whatever reason, decided that it would rather pay Burke and Wayne Auto Spa $220,000 than take the matter to trial. Perhaps the defendants’ decision to settle was done to save further legal expense and the costs of trying what were in fact exaggerated or meritless claims. Or, perhaps the claims were true and the defendants wanted to avoid being embarrassed at trial. This is the problem when cases settle before trial–it is impossible to know the truth of what really happened.

Chairman of the New Jersey Libertarian Party's Open Government Advocacy Project. Please send all comments to [email protected]