Las Vegas POA

Discipline Settlement Agreement Not A Public Record

Written on 12/10/2020
Will Aitchison

A New Jersey group calling itself Libertarians for Transparent Government obtained minutes of the March 12, 2018 Cumberland County Board Meeting of the Police and Fireman’s Retirement System (PFRS), reflecting the Board’s consideration of an application for special retirement by Tyrone Ellis, a corrections officer employed by the County at its correctional facility. The minutes stated that Ellis had been proposed for termination for conduct unbecoming following an internal affairs investigation in which Ellis admitted to engaging in sex with two inmates and bringing them contraband, including bras, underwear, cigarettes and a cellphone. He also admitted to using an alias that allowed him to correspond with and provide money to one of the inmates through JPAY, a service that allows individuals to transfer money to inmates.

The minutes reflected that Ellis resigned while the disciplinary action was pending, agreeing to cooperate in an investigation of other suspected acts of improper fraternization, leading to charges against four other officers. As a result of the cooperation, the County agreed to dismiss the disciplinary charges and permit Ellis to retire in good standing, reflected in a settlement agreement between Ellis and the County. The PFRS Board determined Ellis’ misconduct required a partial forfeiture of his service and salary and approved his service retirement less the partial forfeiture.

The Libertarians filed a request for the settlement agreement, citing New Jersey’s Open Public Records Act. After some skirmishes, the matter wound up in a New Jersey state appeals court.

The Court ruled that the settlement agreement was not subject to disclosure under the Act. The Court found that the Act “excludes personnel and pension records from the definition of government records, with limited exceptions. The Legislature has declared in this provision that personnel records are, by definition, not classified as government records at all; any document that qualifies as a personnel record is therefore not subject to being disclosed notwithstanding the other provisions of the statute.

“We have little doubt that the Preliminary Notice of Disciplinary Action which Libertarians initially sought from the County, but did not pursue in this action, would qualify as a personnel record. If the disciplinary records themselves are exempt from disclosure, we have difficulty understanding why an internal settlement agreement resolving disciplinary charges, which often involves an employee accepting discipline, would not similarly be considered a personnel record exempt from disclosure.

“Indeed, we expect that some employees agree to settle disciplinary charges, at least in part, to avoid public disclosure of the charges. We do not share the trial court’s concern that a ruling permitting public agencies to shield settlement agreements resolving internal disciplinary charges will result in the improper characterization of other settlements as agreements resolving ‘personnel’ matters.

“We, of course, expect government agencies to comply with law and turn square corners in doing so. Additionally, in camera review of challenged documents permits both a court to quickly and efficiently test the government’s claim that a document is not publicly accessible under Act.”

Libertarians for Transparent Government v. Cumberland County, 2020 WL 5264825 (N.J. Super. Ct. App. Div. 2020)

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