March 15, 2014

Hon. Patrick Scaglione, Director and members of the
Somerset County Board of Chosen Freeholders
20 Grove Street
Somerville, New Jersey
via e-mail only to [email protected]

Dear Director Scaglione and members of the Board:

I am confused by the County’s responses to two Open Public Records Act (OPRA) requests I made for financial records related to a $1 million fund that the County set up in 1998 to defend against claims against former County Prosecutor Nicholas Bissell.  My two OPRA requests and the County’s responses are on-line here.  There are two general areas of confusion:

1. Why aren’t any financial records available for this fund?

In both his February 21, 2014 and March 14, 2014 responses, County Counsel William T. Cooper, III stated that even though the Bissell Defense Fund was in existence as recently as 2010, the County’s “research cannot locate any specific records pertaining to this account” (See Cooper’s February 21, 2014 letter) and “the Records Custodian cannot locate any records for the referenced account” (See Cooper’s March 14, 2014 letter).  Rather, the only records of the account that the County’s staff can find are “references in audits . . . for 2008 and 2010 [which] are the basis for the information and belief that an account was created” (See Cooper’s March 14, 2014 letter).

I am confused as to why the original, source records pertaining to the Bissell Defense Fund account cannot be located.  After all, the auditors must have reviewed some financial records in order to reference the Bissell Defense Fund account in their 2008 and 2010 audit reports.  Why cannot the financial records that the auditor reviewed be disclosed in response to my OPRA requests?

According to the “County Agency General Records Retention Schedule” which is online here, Somerset County is required to retain “[a] central listing of all activities for an account within a particular time period” permanently. (See, Record Series 0102-0001 on page 2 of the Schedule).  And, most of the other financial records, such as account statements, checks and deposit slips need to be kept for six years. 

The only conclusion I can draw after reading the retention schedule and Mr. Cooper’s letters is that the County, despite the State’s retention requirements, somehow lost or destroyed records that were supposed to have been retained.

Did the County disobey the retention requirements?  If not, then why does it not have any records related to this account?

2. Why did the Bissell Defense Fund account continue to exist until 2010? 

According to Mr. Cooper’s March 14, 2014 letter, “the County was first advised that the State was taking over the defense [of any actions alleging negligence or wrongdoing by Prosecutor Bissell] on or about July 31, 2001.  Yet, Mr. Cooper’s February 21, 2014 letter states that the Bissell Defense Fund “account was cancelled by the County when the State of New Jersey assumed the defense and liability for the actions of the Somerset County Prosecutor’s Office.”

Why did it take the County until 2008 and 2010–seven and nine years after it realized that the Bissell Defense Fund account was no longer needed–to return the $1.6 million account balance back to the general fund?  Could not the taxpayers have benefited by having this substantial fund of money available to them in 2001 instead of in 2008 and 2010?

Thank you for your attention to this matter.  I look forward to your response.

Very truly yours,

John Paff
P.O. Box 5424
Somerset, NJ  08875
Voice: 732-873-1251
Fax: 908-325-0129
e-mail: [email protected]

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