Borough Clerk Names Municipality In Potential Lawsuit
By Saul Qersdyn
Published: March 6, 2014 @ 5:00 PM EDT
The February 20th Mayor & Council meeting announced that they would be going into closed session to discuss – among other thing – potential litigation of Cali vs. Roselle Park. It was confirmed through an OPRA (Open Public Meetings Act) request that Borough Clerk Doreen Cali filed a “Notice Of Claim” on December 31, 2013.
By New Jersey law (NJSA 59:1), anyone seeking a claim for damages against a government entity, in this case the municipality of Roselle Park, must file a “Notice Of Claim” within 90 days of an accident or occurrence.
The Notice Of Claim stated that on October 2, 2013 at a Casano Community Center Committee meeting, 5th Ward Councilman Michael Yakubov performed the following “Negligent Or Wrongful Act” as stated in Section (F) of the Notice:
- Violation of the Open Public Meetings Act (OPMA) [NJSA 10:4-7]
- Violation of the Rice Notice [NJSA 10:4-12b(8)]
- Threat Of Job
- Defamation Of Character
- Invasion Of Privacy Rights
- Acted with knowledge of the violation of the Open Public Meetings Act
- Acted with knowledge of the violation of the Rice Notice
- Reckless disregard for the law
Under Section 4A of the notice, the following claim for damages was made:
- Violation of rights provided by state statute
- Slander reputation
- Defamation of character
- Invasion of privacy rights
- Mental anguish
The amount of claim being sought under Section 5 was $10,000.
Among the 49-page document are copies of the OPMA statute, a copy of the minutes from the October 2, 2013 meeting, and emails between the Borough Clerk and the councilman. The section of the minutes being used as a reference for the potential litigation is:
“Councilman Yakubov is sending letter to vendors to support the food pantry, especially for the holidays. He said he went to Borough Clerk (Doreen) requesting a vendor list. Borough Clerk advised him to OPRA request the list. Clerk accused him of improprieties by requesting the vendor list. He said he was not going to OPRA the request, he will bring the complaint up with the DCA.”
It is that statement that appears to be used as a violation of the Rice Notice exclusion of the Open Public Meetings Act. The Rice Notice, named after plaintiff Regina Rice in a 1977 NJ Superior Court case, states that prior to discussion of personnel – which is covered as a closed session item – an affected employee must be given notice (known as a Rice notice) which gives the employee the right to request a public hearing. If such notice is not given, then the meeting may not go into closed session when discussing any matter involving the employment, including the evaluation of the performance of said employee unless the employee whose rights could be adversely affected request in writing that such matter or matters be discussed at a public meeting.
In correspondences between Ms. Cali and Mr. Yakubov, the matter of an extraordinary request is presented by the Borough Clerk but never addressed by the councilman as to its merit. During one particular email exchange, Ms. Cali states:
Since it is not in an electronic format the 78 pages would need to be individually scanned which would take over an 1.5 hours to complete. There is a special service fee for an extraordinary expenditure of time to accommodate an electronic copy of same which is $46.79.
This cost was given by the Borough Clerk when the councilman asked for the information in digital format when told copies of the 78-pages requested would cost $7.90. Per OPRA law, copies are charged at $0.05 (five cents) a page – electronic or digital copies are free. It is questionable why an extraordinary expenditure would be charged if copying would take the same amount of time and the only difference would be that someone would press “Scan” instead of “Copy” on a modern office copying/fax/scan machine. If no extraordinary expenditure could be determined, then that would be a violation of OPRA.
There is no word if the councilman will ask for a ruling by the New Jersey Government Records Council (GRC) on whether or not an OPRA violation was made on behalf of the Borough Clerk’s office. The matter could have been presented to Superior Court but the 45 day limit of filing after a violation occurs expired in early November of last year. There is no time limit for an action to be filed with the GRC.
A copy of the full “Notice Of Claim” is available below for viewing/printing/downloading: