- In a Facebook post Thursday, Mahwah’s Council President indicated that Chief of Police James Batelli, had issues with ordinances ( e.g. 1806 to ban
all non-residentscertain people, from parks and others, pulled from the agenda) but now feels confident they will be ready for the next meeting.
Sadly, he doesn’t mention what the Chief’s concerns were. Several residents at previous council meetings were asking about the reasons ordinances seem not to be enforced and Council members haven’t seen fit to publicize this information to the residents of Mahwah.
An Open Public Records Act request procured the following information, shared in several posts, here. In the future, it may be helpful (and less time consuming for the municipal clerk) to provide this kind of information directly to residents. Sharing timely information would also serve to dispel rumors and innuendo about the Police Department and identify what exactly is being done by Mahwah Township representatives. There were several questions by residents, about delays and timing, that would have been addressed by proper release of this information.
Those issues were covered here: Mahwah is in search of a violation (for anyone that wants to see the context of how they fit into the timeline).
This post will start with the concerns Chief Batelli outlined in his email of July 30th, which raised the following issues with the Town’s Business administrator:
The Council is spreading defamatory misinformation about the Chief not diligently working on ordinances and enforcement of laws:
Perhaps there’s a reason why the council isn’t sharing this information with residents.
The police department in Mahwah has been put in an untenable situation by the Council.
Chief Batelli is clearly trying to navigate through dangerous legal waters created by the council and exacerbated by hostility towards those that refuse to listen, merely because Constitutional rights are getting in the way.
How did this start?
When the Council passed ordinance 1806, banning
all some non-NJ residents from the parks in Mahwah, enforcement issues started to become apparent, almost immediately.
Despite what Councilman Sbarra would claim, drafting laws is hard work. And drafting them well, takes time. You can’t only apply laws to certain people (e.g. Jews from Rockland County), and not an out of state Grandma with her Mahwah resident grand-kids. That would be unequal treatment under the law for which the cops could be liable to scrutiny and legal action for selective enforcement. From a municipal perspective, the last thing anyone should want is another easily winnable lawsuit because of a poorly drafted ordinance.
But as you can see below, this is exactly the kind of situation the council created when they enlisted the lawyers to draft Ordinance 1806.
Mahwah resident, Ms. [redacted] was worried about the new ordinance. so she reached out to her councilman to find out what was permitted:
“According to the new ordinance, any non-resident will be asked to leave the park. My mother often takes my girls to the park. She has New York plates as she lives in New York.”
And of course, since the ordinance clearly stated: “The Township’s parks and play grounds are open to the public and may be used by New Jersey Residents only”, the only choice was to inform Ms. [redacted] that she needed to find a new place to have her mom hang out with the little ones. Laws are hard and sometimes unforgiving.
Except that didn’t quite happen. Instead, this happened:
Your mom is fine we will also allow outside residents to be in the park with Mahwah residents. The signs say so.
Now, a reasonable person may be confused. Does the sign really say there are exceptions? Does the ordinance contradict the sign? Does the statute not get enforced if the sign contradicts it? What does an officer go by, the statute or the sign?
What does the sign say, anyway?
This seemed confusing to Chief Batelli as well, who sent this letter to the Town’s business administrator, Mr. Wiest:
“The proposed signage contains verbiage which is different from the Ordinance. The ordinance reads parks and playgrounds are open to New Jersey residents and does not list any exceptions. The signage includes exceptions that “guest of a resident are permitted” and “employees of local businesses are permitted”
Houston, we have a problem. The Chief is rightly concerned with the text of Ordinance 1806. As an officer, the Chief knows that in NJ, there is no requirement to carry identification. Nor are workers in Mahwah required to carry identification from their employer. So how is a Mahwah PD officer, whose department is called regarding non-NJ residents using parks, supposed to differentiate one person from another?
Here’s Chief Batelli in his own words:
“In addition individuals are not obligated to carry identification to use a public park nor do they have to display their identification in a park if they are not doing anything wrong. For out of state residents who work in local businesses and according to the sign are allowed to use our parks there is no statutory obligation for them to carry any sort of company ID.”
Making matter all the more problematic is that there’s quite a reasonable probability that this is not merely about use of parks, but that there can be a bias element as well.
According to Chief Batelli, positions on Facebook that elected Township officials have made about this issue…
“would lead a reasonable person to conclude or argue that there is a relationship between actions being taken by our governing body as it relates to ERUV’s and the new restrictive Park Ordinance.”
Uh oh. This law thing may be complicated after all. They just said to ban
all non NJ residents (except the grandmas and the shop workers and the guests and ???). Now this seems like an invitation to lawsuits against police officers, against the township, against residents and really, who wants to be the guy asking grandma for ID that she doesn’t legally need to carry, just so her grand-kids can enjoy the park, which her kid pays a lot to create and maintain.
Ok, this is an issue. But laws are created and they can be tweaked. It’s not like the Council is still demanding they enforce this, right? I mean, even they can see the huge issues involved.
On July 27th, Mayor Laforet wrote to the County Prosecutor regarding a conversation he had with Council President Hermansen:
Prosecutor Grewal, I would like to inform you of a conversation with Council President Robert Hermansen. His position is that the “New Jersey residents only” signs should be installed today as “a deterrent”. Fully aware of the fact that we cannot enforce this ordinance.
My position on this issue is that I will not allow our Police Department to be subject to potential lawsuits and as a result of violating the constitutional rights of a protected class.
The placement of these signs with the full intent of not enforcing them gives the impression to anyone who views them that they may not allowed be welcome. That in its self violates their current rights to our parks.
As a result I continue my stance of not posting these signs.
Any guidance you or your office can offer the Township is sincerely appreciated. rights to our parks.
As a result I continue my stance of not posting these signs.
Any guidance you or your office can offer the Township is sincerely appreciated. (emphasis added)
However, on August 2nd, the Council President wrote to the Mayor, Councilmembers and Township attorney regarding Chief Batelli’s concerns:
“He now is telling us that he only found out about our park ordinance in July, even though the council, our attorney and administration had been talking about this issue since May. I will repeat as I have to you now several other times already that the attorney makes ordinances that they believe is the best law, we pass the laws and the head of law enforcement enforces the laws…” (emphasis added)
Ok then. The Council didn’t know about the Chief’s enforcement related issues until the last second. That doesn’t explain why he still thinks it should be enforced. Problematic laws don’t become kosher just because you didn’t know they were problematic soon enough. Was there a reason for the delay in receiving comments about ordinances?
This wasn’t so much a delay, as business as usual by the rules the council created. You did say you pass the laws, right? Maybe you should take Mr. Wiest’s advice and update the procedures so department heads can get enough notice to be useful to the council.
But does the excuse that the Chief didn’t tell the council early enough actually hold up to scrutiny? Did they have no clue this was a problem earlier on? Had no lawyers capable of figuring this out ahead of time looked at the problematic language?
Back in May, the Town’s business administrator wrote to the NJMMA Municipaltalk group to get info about park ordinance bans. Here’s what Saddle River’s business administrator, Jerry Giaimis had to chime in:
“Barkawi vs. Borough of Haledon would appear to prohibit such residency restrictions in NJ.”
So, the Council knew back in May that this was problematic and pushed forward anyway. But after the problems became apparent, they were still pushing.
That sounds remarkably like the problem Chief Batelli had with Ordinance 1806. Here’s what he wrote to the council on July 20th:
After all these issues, the Council seemed very adamant they would have a ban sooner or later. Here’s the President on August 10th declaring:
“I promise you. There will be a park ordinance and there will be one that will be enforceable!”
On Friday, the Bergen Record reported:
“Hermansen said the township is still coordinating with local police to iron out “a few minor kinks” in the ordinance language. Both should be ready for introduction on Sept. 14, he said.
Hermansen said the revised ordinance will be modeled after those used by surrounding towns. Upper Saddle River, for example, allows parking at its local parks by permit only.”
What if the parks didn’t take Green Acres money, maybe some of the Mahwah parks can issue restrictions? Let’s go to NJMMA Municpaltalk again. on July 27th, Mahwah’s business adminittator had this exchange:
“We have heard that USR does restrict local parks to residents because they have never accepted Green Acres money. Is this correct?”
Loophole! That’s got to be good to go, right? Finally, a ban they can enforce. Here’s what Mr. Giaimis replied:
“I did hear that USR tried but then realized they couldn’t. Instead, they instituted parking regulations that required a permit to park in the parking lot; effectively doing the same thing (which in my view wouldn’t hold up in court because it is a de facto ban).” (emphasis added)
So the new solution is to try a plan they have already been told is a problem? Did the Council not yet see the comments from Mr Giaimis? Will they find out in another few weeks because they rushed through new ordinances (again) without time to solicit comments?
It seems they are determined to aim for another (en)forced error.