Bully Pulpit

At an open town meeting on December 16, 2014, the town council told Mr. Rizkalla

1. The township’s million dollar water project did not cause flooding in his house
2.  Had two experts visit his house who “cannot tell us anything the Township did is causing water in your basement”
3. Will not release the reports of those “two experts”
4. Offered Mr. Rizkalla $19,000 to go away
5. That he’s welcome to get a lawyer and sue

Does that sound like the town is being honest?

Here’s another piece to consider.

The township is blocking disclosure of the engineer reports based upon the reports are protected “work product” prepared in anticipation of legal action. Fair enough. The reports probably are “work product.” However, in our country, the government works for us. Governmental institutions don’t enjoy the same rights to privacy as individuals. Freedom of Information Laws and the Open Public Records Act codify the public’s right to government records with certain exceptions.

Work product is a limited exception. As the town attorney surely knows, on July 21, 2014, in Martin E. O’Boyle v. Borough of Longport, the Supreme Court of New Jersey affirmed the public’s “common law right of access”. The court further held as follows:

The attorney-client privilege shields the disclosure of documents otherwise accessible under OPRA . . . In order to determine whether the common law right of access applies to a particular set of records, a court must first determine whether the documents in question are public records. Second, the party seeking disclosure must show that he has an interest in the public record. If the record is privileged, the requestor must articulate a particularized need. Finally, once an interest is established, the burden shifts to the public entity to establish that its need for non-disclosure outweighs the plaintiff s need for disclosure. [Emphasis added]

The engineer’s reports are plainly public documents. Mr. Rizkalla has a “particularized need” in knowing if the township turned his home into a fish tank before he spends $100,000 to remediate the basement. Mr. Cannon, an attorney and town council member speaking on behalf of the town council, stated emphatically that the engineering reports do not show the township has any liability.

If so, how can the public’s need for non-disclosure outweigh Mr. Rizkalla’s need to know?

And that’s the crux of the matter. Mr. Rizkalla has the law on his side but the township has taxpayer money. The council can spend hundreds of thousands of taxpayer dollars on legal fees and stretch the court battle over years. Mr. Rizkalla cannot.

Mr. Rizkalla is not a rich man. Mr. Rizkalla’s home is flooded and likely has mold issues.

So the town council, acting on behalf of the public’s welfare, offers Mr. Rizkalla some money and tells him to take it or sue.

Welcome to the bully pulpit.

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