The State Local Finance Board (LFB) has rejected a Petition for Rulemaking submitted by the New Jersey Foundation for Open Government (NJFOG) that sought changes to the Board’s procedure for handling ethics complaints filed against local government officials. NJFOG proposed time limits for handling the investigations (there currently are none), public disclosure sooner in the process, and tightening of a rule that allows the Board to skip review of some ethics complaints altogether.
“The state’s review process has suffered from declining public confidence because the long delays, likelihood of dismissal, and nominal fines--normally $100--do little to deter unethical conduct by local officials,” said Foundation president Walter Luers. “Our goal was to improve enforcement and public awareness to encourage better conduct by local officials and better voluntary compliance with ethical requirements.”
NJFOG announced in October 2015 that it had petitioned the Local Finance Board to adopt the proposed changes. The Board released a rejection notice on March 7 following decision at its February meeting.
PETITION REQUESTS AND BOARD RESPONSES
In sum, the Board just said "no" to each request and used specious reasoning to support its positions, in NJFOG’s view.
In its petition, NJFOG requested that the Board impose upon itself reasonable time constraints for completing its preliminary and full investigations -- up to 120 days to finish a preliminary investigation and up to 18 months to complete a full investigation. The Board referred to these proposals as "artificial deadlines" and claimed that it already processes complaints with "due haste" and that the Board's staff needs "flexibility" so that they can "adapt to the unique realities of each investigation, achieving the most appropriate result." The Board also chided NJFOG for "fail[ing] to make any showing as to the adequacy of…[the] proffered timelines for complaint investigation and consideration."
Additionally, NJFOG requested that a complaint be publicly disclosed after a preliminary investigation is completed and a determination has been made that the complaint is not frivolous and has a reasonable factual basis. The Board opined that the public's right to know about non-frivolous ethics complaints that are based upon a reasonable set of facts is trumped by concerns that "[d]isclosure of unverified information . . . may impact a [government official's] standing in the community or employment with a public agency."
The Board went on to compare its confidential investigation process to the attorney disciplinary process employed by the Office of Attorney Ethics. But that comparison is inapposite because records in an attorney disciplinary proceeding are made public after a determination is made "that there is a reasonable prospect of a finding of unethical conduct by clear and convincing evidence." See, R.1:20-4(a) and R.1:20-9(a). The example cited by the Board actually supports NJFOG's request because the attorney ethics process, unlike the Board's, allows for public disclosure of ethics matters prior to their final disposition.
Finally, the Board rejected NJFOG’s request to tighten the rule that permits it to reject an ethics complaint if the matters at issue in an ethics complaint are also pending before a court or administrative agency. NJFOG's concern is that the rule, as written, permits the Board to reject complaints even if the matters complained of are only tangentially implicated in another proceeding. The Board rejected this proposal because "it would require allocation of staff resources to the redundant investigation of matters that are the subject of parallel investigations or proceedings."
MISSTATEMENTS IN THE BOARD’S REJECTION NOTICE
“There are some statements in the Board’s notice that are not factually correct and deserve a response because they undermine the legitimacy of our concerns about the current process,” said NJFOG treasurer John Paff, a well-known transparency advocate and co-applicant on the Petition.
For example, the Local Finance Board claimed that "Notices of Violation were issued for two of the complaints referenced [in the Petition], 12-009 and 13-014, in August 2015.” Both are ethics complaints made by Paff, filed on March 7, 2012 and April 21, 2013, respectively.
First, Paff says that he has no record of having received a disposition on 13-014, which was filed almost three years ago. To challenge the Board's claim that the complaint had been adjudicated prior to the Petition being filed, Paff submitted an OPRA request seeking the disposition and the cover letter that allegedly accompanied it. Based on the information he received, Paff notified the agency in a March 16 letter that its statement was in error. “Apparently, the Board had assigned the same complaint number to two separate cases,” he said.
Second, Paff did not become aware of the disposition of 12-009, which took three and a half years to resolve and resulted in a $100 fine, until September 4, 2015, after the date when the Petition for Rulemaking was mailed to Trenton.
The other two complaints listed in the petition, 13-034 and 13-035, which were both filed on August 16, 2013, remain unresolved as of March 2016.
Thus, even by the Local Finance Board’s own records, these examples clearly demonstrate that the agency is very slow in resolving cases.
New Jersey bill S342 may provide the needed reform. If S342 is enacted, the LFB's oversight of local ethics issues will be terminated and transferred to the State Ethics Commission, and the maximum fine for an ethics violation will be substantially increased. The bill was passed by the Senate with unanimous support this February. In June 2015, John Paff submitted written testimony on the bill to the Senate State Government, Wagering, Tourism and Historic Preservation Committee (bill S729 in the prior legislative session).
The New Jersey Foundation for Open Government (NJFOG) is the only non-profit organization in the state dedicated solely to improving public access to governmental records and meetings. We work to educate the public about the Open Public Records Act and Open Public Meetings Act as well as increase governmental compliance, transparency, and accountability.