Friday, February 27, 2009

LFB: Files lost and "administratively closed."

I recently sent an OPRA request to the Local Finance Board (LFB) seeking information on Local Government Ethics Law violation cases from 1999 that were still marked "pending" in 2006. I was interested in these cases because I wanted to know what types of cases took seven years to investigate. At the time of my request, the LFB had not publicly disclosed the identities of the local government agencies or the complainants or the nature of the violation alleged.

Below is the response to my request. Below that is the provision in the Administrative Code that exempts the LFB's ethics investigation records from public disclosure. You'll note that there are two categories of cases identified in the responsive e-mail:

a) Cases where case files were simply lost by the LFB, or perhaps never existed in the first place. There are two cases in this category: 1) LFB Case No. 1999-26, which is John Florentino's complaint against an unknown party--probably a Roselle Borough (Union County) official; 2) LFB Case No. 1999-18 for which no information is available.

b) Cases that have been "administratively closed." The LFB takes the position that these case files are not public because "the cases were not adjudicated by the [Local Finance] Board."

Interestingly, the LFB takes the position that the complainant is under a duty to keep pushing for resolution of his or her case, and that failure of the complainant to do so will eventually result in the case's administrative closure.

One example of this is Case 1999-01 against some unnamed official in Bridgeton City (Cumberland County). As you can see from the LFB's reply, City officials did not reply to the LFB's written requests for information, failed to respond to a subpoena and apparently didn't appear for a scheduled hearing. Yet, instead of exposing Bridgeton officials to consequences for their failures to respond, the LFB just dropped the matter because, apparently, the original complainant didn't pursue it.

As another example, see Cases 1999-31 and 1999-32 against Asbury Park City (Monmouth County). Apparently, the LFB decided to postpone the ethics charges pending resolution of criminal charges brought against some of the officials who faced ethics charges. Apparently, the LFB did not check to determine when and how the criminal charges were resolved. Instead, the LFB waited, and is apparently still waiting, for the original complainants to again "press the complaints" after the criminal litigation concluded. So, it is possible that Asbury Park officials who either did not face criminal charges or were acquitted of those charges never had to face the ethics charges because the complainants, for whatever reason, weren't motivated to "press" their cases, perhaps years after having filed them.

Finally, I wish to comment on Case 1999-23, where "Robert Czech" filed a complaint against his former municipal employer and then, perhaps, withdrew his complaint. Since the matter was never adjudicated by the LFB, the LFB considers the file "closed to public access." It doesn't seem to me that the complainant, simply by electing to withdraw his or her complaint, should have the power to keep the matter out of public view. Such would allow a complainant to accept an under-the-table incentive in exchange for his or her withdrawal of a complaint and thus keeping the LFB from dealing with (and public from learning about) unethical conduct by public officials.

John Paff
Somerset, New Jersey

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Dear Mr. Paff:

This is in response to your OPRA Request W41317. You are more than welcome to come in a review files; however, we must advise you that upon researching your request, we discovered circumstances that result in files not being available as explained below.

Since 1999, our Ethics Staff has experienced several staff changes, several directors, and several changes in off-site storage locations. Given that we have not been able to find the files, we have concluded that the combination of those circumstances has resulted in the regrettable loss of several files or incomplete information for others. Given this situation, plus decisions made at given points of time when the Board was backlogged with cases, decisions were made to "administratively close" older cases where complainant had not been in contact with the staff. Thus, while the case was closed as it would not be pursued, the record is closed for public access as the cases were not adjudicated by the Board.

With regard to your specific request, we have ascertained the following circumstances:

1999-1 Bridgeton, In March 2000 a subpoena was send to the Zoning Board Secretary in Bridgeton for minutes and a date of appearance before the LFB was to be 5-10-00. There was no response to the previous written requests for information or the subpoena and no follow-up from any party. It was not handled again after that and has been marked administratively closed and not available for review.

1999-18 This file has been missing for years and there is no record of it on any agenda. It was most likely found to be logged in incorrectly (i.e., it may have a request for an advisory opinion) and never taken off the report. As it was logged in, it was marked closed on the most recent OPRA report provided to you.

1999-23 This one, from Robert Czech is against a former municipal employer. It was investigated and the employer responded, however, the matter was never considered by the Board. While there is no written record on the point, staff believes that the complainant withdrew the complaint. As the case did not proceed to the Board for adjudication, the file remains closed to public access.

1999-26 This regards a complaint from former employee of the Borough Roselle, John Florentino. The file cannot be located, the case never went to the Board, and under these circumstances, the complaint was administratively closed.

1999-31 and 32 Both cases concern the City of Asbury Park, and were related to other complaints against City officials by the same complainants during that time period. It is our understanding that several officials who were the target of the complaints were also subject to criminal complaints. Our records show that these two cases were tabled by the Board pending outcome of the litigation. The cases were never formerly closed. Staff recalls that other cases involving Asbury Park were closed as a result of the litigation; the complainants did not follow-up to press the complaints once the litigation was resolved.

Notwithstanding the foregoing, all of the remaining closed files from 2000 forward are available for your review

We look forward to seeing you Wednesday afternoon.

Marc Pfeiffer, Records Custodian
NJ Division of Local Government Services
101 South Broad Street
PO Box 803
Trenton NJ 08625
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N.J.A.C. 5:35-1.2 Confidentiality

(a) Any complaints, statements, information, or documents obtained or prepared by the Board staff or the Board are deemed confidential and not subject to public disclosure during the course of the preliminary investigation or investigation to determine whether a violation of the Local Government Ethics Law has occurred, except as necessary for the Board's staff or the Board to conduct the preliminary investigation or investigation.

(b) The Board's discussion regarding a preliminary investigation or investigation shall be in executive session. However, any vote by the Board regarding a preliminary investigation or investigation shall be in public session. In public session, the complaint shall only be identified by a docket number, determined by the Board's staff.

(c) The Notice, the complaint and allied statements or information obtained by the Board's staff during the course of the preliminary investigation or investigation are subject to public disclosure 30 days after mailing a Notice of Dismissal, pursuant to 5:35-1.1(h), or a Notice of Violation, pursuant to 5:35-1.1(i).

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