Municipal Lawyer’s Flawed Bill Records Held To Explain ‘Secret’ Town Meetings

From  the Law Journal

Meetings with town leaders that turned up on a municipal lawyer’s billing records were not secret sessions in violation of the Open Public Meetings Act, a Camden County judge has held.

In a decision made public Monday, Superior Court Judge Louis Meloni found that what appeared to be quorumed meetings not in compliance with OPMA were the result of the lawyer’s outdated computer program, which did not accurately reflect the time billed.

Meloni found Haddon solicitor Richard Klineburger III’s explanation of the billing system reasonable. “[He] seemed sure of his recollection, I did not find him evasive nor was there any unwillingness or reluctance to answer the questions posed,” Meloni said in Cassel v. Twp. of Haddon , L-1426-09.

Though the lawyer’s chats with town officials did not flout OPMA, Meloni held the town did violate the law by advertising a public meeting in 2007 for 7 p.m. but starting it 40 minutes earlier.

He also ruled that the Open Public Records Act did not allow Haddon to charge $5 for a CD with an audio recording of a public meeting, rather than the actual cost of 88 cents.

The plaintiff, Haddon resident Thomas Cassel, came across the references to Klineburger’s meetings with commissioners in billing records he obtained through an OPRA request.

The invoices, covering January through June 2008, contained five entries reflecting meetings attended by Klineburger, Mayor Randall Teague and Commissioner Paul Dougherty.

As the town has three commissioners, including the mayor, only two are needed for a quorum. And if they discuss municipal business, it becomes a public meeting subject to OPMA, which requires prior public notice and official minutes.

So reasoned Cassel when he filed an OPRA request on Feb. 6, asking for notices, agendas, minutes and related papers for the five dates, as well as resolutions that might have authorized a closed meeting or executive session.

Haddon Clerk Denise Adams sought advice from Klineburger on how to respond. His Feb. 18 letter in reply said, “during said consultative meetings, I would meet with either one or both of the [commissioners] with regard to potential, pending or ongoing litigation.”

No official documents of those “consultative” meetings were created, he wrote, only his “own personal notes” that were not turned over to the town as public records. Those notes were prepared in anticipation of litigation and are considered privileged work product under OPRA, which in any event does not deem advisory, consultative or deliberative material to be a public record, wrote Klineburger.

Cassel relied on that letter and the invoices when he sued.

During a hearing on July 2, Klineburger blamed the software.

He explained he had recently become solicitor and, to get up to speed, was spending a lot of time at the municipal building reviewing thousands of documents turned over by his predecessor, Timothy Higgins. During that process, he had brief conversations with the mayor or a commissioner but never more than one at a time unless they were eating lunch or talking about the Phillies or other unofficial topics, he testified.

He was going over multiple matters in a single hour but the program would lump everything together as Haddon Township time, creating the impression of a quorum in talks on town matters, he claimed.

That was a viable explanation to Meloni, who also found sufficient Klineburger’s explanation that when he wrote to Adams, he thought he was dealing with an OPRA request for minutes and not with whether a public meeting occurred.

Klineburger, of Klineburger & Nussey in Haddonfield, says he cannot recall the name of the billing program that created the confusing invoices but it was installed 12 years ago, when the firm was still using a DOS version of Word Perfect.

He says he notified the town when the problem became apparent, before Cassel’s request, and the firm is now using Timeslips billing software.

“No one got overcharged, no one got ripped off, there were no secret meetings,” emphasizes Klineburger.

He declines comment on the other issues in the case — the public meeting held earlier than the notice said and the ordinance setting a $5 charge for CDs — because those public actions predated his appointment as solicitor.

Haddon’s lawyer in the case, Robert Baxter, of Wardell Craig Annin & Baxter in Haddonfield, did not return a call.

Cassel’s lawyer, Oxford solo Walter Luers, says, “we believe based on evidence that meetings took place and that minutes of the meetings should have been maintained.”

He calls the decision “very frustrating” because “at trial, [Klineburger] said when we said ‘meetings’ we didn’t mean meetings, we meant something else and the judge bought that.”

Luers is pleased with the other part of Meloni’s decision concerning the cost of CDs and the violation of OPMA by holding a meeting earlier than stated in the notice to the public.