Friday, November 15, 2013

My comments regarding the rule proposal by New Jersey's Local Finance Board

Update:  The Local Finance Board passed its rules without change, despite my comments.  See below.  Note that they did promise to "develop a process whereby more information can be shared on the internet."
Readoption: N.J.A.C. 5:35

Local Government Ethics Law
 Proposed: October 21, 2013, at 45 N.J.R. 2295(a).
Adopted: March 12, 2014, by the Local Finance Board, Thomas H. Neff, Chair.
 Filed: March 13, 2014, as R.2014 d.060, without change.
 Authority: N.J.S.A. 40A:9-22.7.g.
 Effective Date: March 13, 2014.
 Expiration Date: March 13, 2021.
 
Summary of Public Comments and Agency Responses:

Public comments were submitted by: John Paff, President, Open Government Project, New Jersey Libertarian Party; Robert Wechsler, Director of Research, City Ethics, Inc.; Susan Scoblink-O'Neill; Barbara Sachau; and an anonymous commenter on behalf of Atlantic City Bitcoin, LLC, which are summarized below.

COMMENT: N.J.A.C. 5:35-1.2. John Paff, Susan Scoblink-O'Neill, and Barbara Sachau ask that the Local Finance Board (Board) relax N.J.A.C. 5:35-1.2, which requires confidentiality during the course of a preliminary investigation into a complaint, so that the public can get more timely information about ethics complaint filings. Commenters believe that no sound policy reason exists for conferring the current level of confidentiality upon allegations of misconduct by local government officers, particularly given their lower expectation of privacy than the average citizen. Information about complaints should be publicly disclosed after a finding of probable cause or a finding similar to that for public disclosure of New Jersey attorney ethics complaints under New Jersey Court Rule R.1:20-4(a) "when it has been determined that there is a reasonable prospect of finding ethical misconduct by clear and convincing evidence."

RESPONSE: The Board disagrees with the commenters' suggestion that substantial information on complaints become available for public disclosure at a point prior to either a notice of violation pursuant to N.J.A.C. 5:30-1.1(h) or a notice of dismissal pursuant to N.J.A.C. 5:30-1.1(i). The Board finds that information surrounding the complaint should not be disclosed prior to a formal investigation taking place. In contrast with the attorney ethics process referenced by the commenters, which requires "a reasonable prospect of a finding of unethical conduct by clear and convincing evidence" prior to a complaint issuing from a district [attorney] ethics committee, a notice of investigation may be issued after a preliminary investigation by Board staff only if the Board finds that the complaint is not outside its jurisdiction or frivolous, and that the complaint has a reasonable factual basis. This lesser standard recognizes that a formal investigation must be authorized and carried out before the Board can properly make a determination as to whether or not reasonable doubt exists as to whether the officer or employee is in conflict with the provisions of the Local Government Ethics Law pursuant to N.J.S.A. 40A:9-22.9.

COMMENT: N.J.A.C. 5:35-1.2. John Paff, Susan Scoblink-O'Neill, and Barbara Sachau ask that the Board establish a deadline for the creation of an interactive online database allowing citizens to query information on pending and closed ethics matters with hyperlinks to filed case documents.

RESPONSE: Current human resource and programming limitations prevent the Board from implementing a database such as what has been proposed by commenters. However, in lieu of formal rules, Board staff will begin developing a process whereby more information can be shared on the internet.
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November 15, 2013

Patricia Parkin McNamara, Executive Secretary
Local Finance Board
Department of Community Affairs
P.O. Box 803
Trenton, New Jersey 08625-0803
(via e-mail only to dlgs@dca.state.nj.us)

Rule Proposal PRN 2013-149
Readoption of N.J.A.C. 5:35 - Local Government Ethics Law

Dear Ms. McNamara:

I wish to provide my written comments and recommendations regarding the captioned proposal.  For the reader's ready reference, the proposal is on-line here

I. Relax N.J.A.C. 5:35-1.2 so that public can get more timely information about ethics complaint filings.

This rule currently provides that all ethics complaints and even identifying information about complaints be kept "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 . . ."

This would all be well and good if the Local Finance Board's staff expeditiously adjudicated complaints.  But, the reality is that complaints sometimes languish in the investigation stage for many years.  For example, on-line here are two pages from rosters of the Board's complaints from, respectively, July 20, 2012 and July 26, 2013, that I received from the LFB in response to separate Open Public Records Act (OPRA) requests.  I invite your attention to the complaints numbered 2006-011 and 2006-041. 

Complaint 2006-011 was redacted by the LFB from the 2012 roster and excluded from the 2013 roster.  This means that as of July 2013--more than seven years after 2006-011's filing--the public was still not permitted to know against whom the complaint was filed or even the agency with which the accused was associated.

Complaint 2006-041 was redacted from the LFB's 2012 roster but was disclosed on its 2013 roster, presumably because the matter was adjudicated or otherwise resolved between mid-2012 and mid-2013.  Upon resolution of the matter--some six to seven years after the complaint's filing--Upper Freehold Township citizens could finally inform themselves that Township Committeeman William Miscoski was accused of an ethics violation by Stephen Edelstein. At that point, any citizen could submit an Open Public Records Act request for the complaint and the LFB's disposition.

But, would not this information be much more useful to voters in, say, 2006 or 2007 rather than finally becoming available five or six years after Miscoski departed from public office? (The January 3, 2008 meeting agenda of the Upper Freehold Township Committee indicates that Miscoski's service as an elected official ended on December 31, 2007.)

From reviewing N.J.S.A. 40A:9-22, I find nothing that statutorily compels this level of confidentiality.  Thus, it appears that the decision to afford confidentiality to complaints and information about complaints during the investigative phase rest with the Board and is subject to the rulemaking process.

I assert that there is no sound policy reason for this level of confidentiality to be conferred upon allegations of misconduct by Local Government Officers, especially those who are elected.  After all, if I or any other ordinary citizen was charged, say, with a shoplifting offense, that allegation could be spread out in the newspapers and on Internet blogs immediately.  Why should public officials, who have much less of an expectation of privacy than an ordinary citizens, have charges alleging their ethical impropriety shielded from the citizens and voters they serve?

Even lawyers, who are arguably the most jealous proponents of keeping their profession's charges of misconduct out of the public eye, recognize that allegations against them should be made public after the ethics system has "determined that there is a reasonable prospect of a finding of ethical misconduct by clear and convincing evidence."  See R.1:20-4(a).  Why should not a similar test be applied to Local Government Ethics Law matters?

Accordingly, I recommend that N.J.A.C. 5:35-1.2 be amended so that substantial information about an ethics complaint be publicly disclosed after a finding of probable cause, or when a finding similar to that required in attorney disciplinary matters is made.

II. Amend N.J.A.C. 5:35-1.2 to get the Local Finance Board into the Internet age.

This is 2013 and on-line databases are not recent inventions.  Given this, why in the world should I or any other citizen have to file OPRA requests for rosters of open and closed LFB ethics complaints or for documents filed in those complaints that have become public?

Even the New Jersey Superior Court, as challenged as it is  technologically, has an on-line database (called the Automated Case Management System) that is capable, albeit awkwardly, of giving citizens some access to Superior Court, Civil Chancery and Law case information.  Even better is the federal court's PACER system, which allows case documents to be downloaded for an affordable price.

So, what's the problem with the Local Finance Board?  The Board has an Internet site and undoubtedly has access to Internet techs on the State payroll.  Why can't the LFB launch an interactive, on-line database that allows citizens to query for information on pending and closed ethics matters, with hyperlinks to filed case documents? Accordingly, I recommend that N.J.A.C. 5:35-1.2 be amended to establish a deadline within which the LFB promises to launch such an interactive, on-line database.

Very truly yours,

/s/ John Paff, Chairman
New Jersey Libertarian Party's
Open Government Advocacy Project
P.O. Box 5424
Somerset, NJ  08875-5424
Phone: 732-873-1251
Fax: 908-325-0129
E-mail: paff@pobox.com

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