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Commission’s Ethics Records Are Exempt From OPRA and Secret Under NJ Ethics Laws

Is This Kafka-esque, Orwellian, Surreal, Or Absurd?

This legislation springs from one of our most essential principles: a democracy works best when the people have all the information that the security of the Nation permits. No one should be able to pull curtains of secrecy around decisions which can be revealed without injury to the public interest. […]

I have always believed that freedom of information is so vital that only the national security, not the desire of public officials or private citizens, should determine when it must be restricted. ~~~ LBJ (1966)

If government is to be truly of, by, and for the people, the people must know in detail the activities of government. Nothing so diminishes democracy as secrecy. Self-government, the maximum participation of the citizenry in affairs of state, is meaningful only with an informed public. How can we govern ourselves if we know not how we govern? Never was it more important than in our times of mass society, when government affects each individual in so many ways, that the right of the people to know the actions of their government be secure. ~~~ US Attorney General Ramsey Clark

The Pinelands Commission just denied my request for public records for the ethics disclosure documents for two of Gov. Murphy’s new Pinelands Commissioners on the grounds that they were exempt from the NJ Open Public Records Act (OPRA) and confidential under the NJ Ethics Law.

I filed this request after being stonewalled by the Pinelands Commission’s Ethics Officer Stacey Roth.

I’ve also filed a request for ethics review to the State Ethics Commission, but they have invoked confidentiality restrictions and will not release any information publicly.

[Update 4/4/22: Almost as if to parody my prior reference to the CIA, I received this email from the State Ethics Commission today:

Hello Mr. Wolfe,

This will confirm the receipt of your most recent email. As previously noted, the SEC is in receipt of the information you provided. Unfortunately, I cannot provide you with any updates regarding the concerns you raised. This email nor any of my prior emails neither confirms or denies the existence of an investigation.

Mary Ann Keys, Esq.

Legal Specialist

New Jersey State Ethics Commission

She left out the part about “this email will self destruct in 10 seconds”!!! ~~~ end update]

It is a matter of public record that Gov. Murphy’s two new Pinelands Commissioners have extensive economic, employment, and political ties to powerful NJ corporations with interests in the Pinelands and that may come before the Pinelands Commission in the future.

Those relationships to private economic interests fit the definition of creating an “appearance” or potential conflict of interest that the ethics laws were supposed to have been designed to provide protections from.

So, after being rebuffed when the Pinelands Ethics Officer Stacey Roth rejected my voluntary request, I filed a formal public records request to the Pinelands Commission for the disclosure and recusal documents for new Commissioners Matos and McCurry.

(since I filed this OPRA request, I learned that Ms. Matos was appointed Chairman of the Pinelands Commission and more recently appointed to the NJ Legislative Apportionment Commission responsible for establishing electoral districts. Wow.)

Here is the Pinelands Commission’s denial of my records request: (emphases mine)

The Commission only possesses two documents responsive to your OPRA request, the Outside Employment  Questionnaires completed by both Chairperson Matos and Commissioner McCurry in accordance with N.J.A.C. 19:61-5.9. These documents, however, are excluded from the definition of government record in and are not subject to disclosure under OPRA. See 47:1A-10; McGee v. Township of East Amwell, 416 N.J. Super. 602, 616 (App. Div. 2010); and New York Pub. Radio v. Office of the Governor, 2016 N.J. Super. Unpub. Lexis 1612, which held that Outside Activity Questionnaires, which are analogous to Outside Employment Questionnaires, are confidential and not subject to disclosure under the common law right to access, which is broader than OPRA.

Moreover, Outside Employment Questionnaires are considered confidential by the State Ethics Commission, and therefore, are not government records subject to public inspection, copying or examination under OPRA pursuant Executive Order 26 (McGreevey 2002), ¶4.d. As a result, your request for these documents is DENIED.

Wow.

It would seem that BOTH Commissioners are subject to NJ State Ethics regulations that mandate Situations where recusal is required ( 19:61-7.4)

And both Commissioner clearly are subject to the financial disclosure requirements of Gov. Murphy’s Executive Order #2:

Executive Order No. 2, promulgated by Governor Murphy on January 17, 2018, requires the annual filing of Financial Disclosure Statements (“FDS”) by certain designated State employees. These designated State employees are subject to the casino-related post-employment restriction of N.J.S.A. 52:13D-17.2(c). The Order also requires that designated special State officers file FDSs, including members of boards, commissions and authorities and the New Jersey members of designated interstate or bi-state agencies. Pursuant to section 21(2)(n) of the Conflicts Law, FDSs required to be submitted to the Commission by law, regulation or executive order must be made available to the public, promptly after receipt, on the Commission’s website. 

The entire purpose of State ethics laws are to promote the public’s trust and confidence in the independence and integrity of government servants.

That goal is accomplished, in part, via requirements that government officials publicly disclose potential conflicts of interest – including basic things like employment records – and recuse from participating in decisions that might reasonably be perceived to create a conflict of interest or impair impartial independent judgement.

So, how could these disclosures be exempt under OPRA and State ethics laws, as asserted by the Pinelands Commission?

Secrecy not only frustrates transparency and accountability, but it undermines public trust and confidence in government, which is the exact opposite of the objectives of both OPRA and State ethics laws.