On Monday, March 7, 2022, the New Jersey Supreme Court held that settlement agreements that resolve disciplinary charges against public employees, redacted as necessary, are disclosable under the state’s Open Public Records Act (OPRA).
The Supreme Court’s unanimous ruling reversed a September 4, 2020 Appellate Division opinion that held that “a settlement agreement resolving internal disciplinary action against a public employee is not classified as a government record under OPRA, but instead is a personnel record exempt from disclosure under section 10 of the statute.”
The case, brought by Libertarians for Transparent Government (LFTG) (Disclosure: I am LFTG’s executive director), involved Tyrone Ellis, a Cumberland County jail guard who was facing disciplinary charges “related to alleged improper fraternization with inmates and introduction of contraband into the [county jail].” After Ellis decided to cooperate in the investigation of four other jail guards, Cumberland County agreed to dismiss its charges against him and allow him to retire in good standing.
After learning about Ellis’ retirement from the March 18, 2018 meeting minutes of the Board of the Police and Firemen’s Retirement System (PFRS), LFTG submitted an OPRA request for, among other records, the settlement agreement between Ellis and County. In its response to the OPRA request, the County denied access to the agreement and told LFTG that Ellis had been “charged with a disciplinary infraction and was terminated” when in reality he was allowed to retire in good standing.
LFTG filed a lawsuit and in a November 2, 2018 consent order, Judge Benjamin C. Telsey ruled that LFTG was entitled to a redacted version of the settlement agreement, as well as its attorney fees and court costs, but ordered the redacted agreement sealed until he or the Appellate Division ordered it released. As noted above, Telsey’s decision to release the agreement was reversed by the Appellate Division. In its March 7th decision, the Supreme Court reversed the Appellate Division’s ruling and reinstated Telsey’s order.
According to an August 28, 2018 NJ.com news article “Did ex-guard accused of sex with inmates get a sweet deal? Group sues to find out,” by Matt Gray, Ellis is receiving a $2,326.16 monthly pension.
In its lawsuit and throughout the appeals, LFTG was represented by CJ Griffin, a partner in the Hackensack firm of Pashman Stein Walder Hayden.
On the same day that the Supreme Court handed down its decision, I put the new ruling into practice by making an OPRA request to the Borough of South Bound Brook (Somerset County) for the separation agreement between the Borough and Sergeant Richard J. Meinsen who had abruptly retired from the Borough’s police department on April 30, 2021 as “part of an agreement resolving internal disciplinary charges.” I had previously submitted an OPRA request for Meinsen’s separation agreement in May 2021 but my request was denied because the Appellate Division’s ruling was still good law at that time.
In response to my most recent OPRA request, however, the Borough released an unredacted copy of its separation agreement with Meinsen. The agreement revealed that Meinsen was charged on January 27, 2021 with sixteen separate disciplinary charges and that he agreed to plead guilty to one charge (for having obtained a tattoo without prior approval of the Police Chief) and serve a five-day suspension. The agreement, which required both the Borough of Meinsen to not disclose its terms to anyone, provided for Meinsen to retire in good standing at a sergeant’s rank on May 1, 2021 after using his accumulated vacation, personal and sick time.