New Jersey Law Journal Article- Town Without Pity
Town Without Pity
Henry Gottlieb 10-03-2005
©2005 New Jersey Law Journal
http://www.njlj.com
Towns and the lawyers who work for them should pay heed to what's happening in West Milford, a woodsy patch of northern New Jersey where the search for ethically clean attorneys is hitting new heights.
West Milford is the only town in the state with an ordinance that requires its lawyers to grant access to their records on file with the Office of Attorney Ethics - files that may contain secret stuff like pending investigations or grievances that turned out to be frivolous.
Two weeks ago, the town council proved it wasn't kidding. It found that Arthur Timins, outside counsel for tax appeal defense, failed to comply with the December 2003 ordinance and fired him.
The ouster comes less than a month before the Appellate Division is to hear arguments on the legality of the ordinance, or at least whether the town must make the ethics information it receives from the OAE public upon request.
"We're looking for attorneys who aren't afraid to divulge their entire ethics history and then we will get the cream of the crop," Councilman Robert Nolan says. "If you have anything you don't want to disclose, then you shouldn't be coming to West Milford looking for work from the township."
Others aren't so sure. Last year, Passaic County Assignment Judge Robert Passero ruled against public disclosure. The appeal, to be heard in Hackensack on Oct. 18, will decide whether he was right, but it also gives the appeals court an opportunity to wipe the law off the books.
That would be OK with Salvatore Alfano, a Bloomfield solo who is defending the town clerk's decision to keep the secret data out of the public's hands. He's afraid the ordinance, taken too far, could encroach on the Supreme Court's power to regulate lawyers.
"Your honor has to put a stop to it in place, and this is the place to stop it," he told Passero.
Political Factors
The lawyer with the most reason to dislike the measure is the freshly removed Timins, of Roseland's Shiriak & Timins, who says that his ethics record is clean, that the council knows it and that he complied with the spirit of the law. Timins insists he was targeted for firing because he was the local Republican Party's election campaign treasurer and Democrats on the six-member council wanted him out. Two Republicans bowed to pressure and voted to oust him, he says. Timins had represented the town when the ordinance was adopted, and he submitted the requisite waiver, authorizing the OAE to send the town authorities his ethics history. Under the ordinance, lawyers retained by the town and its school, planning and zoning boards are required to submit the waiver within seven days of being hired or rehired.
As a practical matter, the waiver is similar to those granted by applicants for many public positions, giving prospective employers access to privileged information held by previous employers. Timins says he doesn't agree with the law's philosophical underpinnings. He says towns are entitled to counsel who are "currently competent and currently ethical." The information in the OAE's public files - the history of past public discipline and current formal complaints - should be enough of a record on which to base an appointment, he says.
Past grievances that came to nothing and current investigations that may be fruitless do not reveal whether there's anything wrong with a lawyer's ethics at the time he or she is hired, he says. This past July 6, the town council passed a new resolution approving Timins' appointment for tax appeal work, but Timins' didn't send in another waiver. Nor did he respond to a reminder sent to him on Aug. 22 by the town clerk. On Sept. 21, the council voted 4-2 to fire him because he hadn't filed the waiver. Timins says he didn't send in the waiver because the one on file since 2003 gave the council all the powers it needed and that he didn't have to send it in because the July 6 resolution hiring him wasn't really an appointment: It was the codification of a fee agreement. And while the ordinance is explicit about the seven-day requirement, there was nothing in the letter referring to the deadline, he says.
Since his firing, Timins has sent in the waiver and would like the council members to accept it, he says. If they don't, he's not likely to sue to get his job back, mostly because the $105 hourly rate in the contract doesn't make the effort worthwhile, he says. A simple request won't work, says town attorney Fred Semrau of Dorsey & Semrau in Boonton. "I believe at this point it would be too late because the ordinance is very clear," he says. "It's very strict." The waiver has to be sent in within seven days of an appointment or reappointment and "it was a reappointment." Semrau says of the ordinance, "I think it's very good. The client, who is the governmental entity, should have the information about the attorney they are hiring." A leading local municipal lawyer agrees with him. Robert Renaud of Palumbo & Renaud in Cranford, chairman of the New Jersey State Bar Association's Local Government Law Section, says he can't think of any bar to a municipal requirement that prospective retained attorneys make their private ethics histories available. It doesn't even have to be codified in an ordinance, he says. On the other hand, making the information public doesn't seem right, particularly information about unfounded grievances, says Renaud, giving an off-the-cuff opinion and not speaking for his section.
Fighting the Old Guard
The idea for the ordinance came from John Paff, a Libertarian Party leader in Somerset County. He makes a livelihood owning rental properties, he says, sparing him from 9-to-5 commitments and giving him leisure time to work as a self-appointed public advocate for open government and lawyer accountability.
After years of needling, cajoling and sometimes suing public officials to pressure them into opening records to the public, Paff has almost become a member of the establishment. His lawyer-watching Web site, www.cjnj.org, posts such OAE documents as lists of pending complaints, otherwise accessible only in district ethics committees and OAE offices. Paff says that in 1996 he recommended an ordinance like West Milford's to town officials in Franklin Township, where he lives. But they weren't interested. He also has received polite but terse turndowns from governing bodies in Boonton and Mountain Lakes. Paff found common cause with a group of homeowners in West Milford, including a retired New York Times editor, Martin O'Shea. A critic of old guard politicians who kept tight control over public business, O'Shea has sued town officials for noncompliance with open records laws, edited an online newsletter delving into minutiae of local decision-making and campaigned to have longtime town attorney Martin Murphy investigated for alleged conflicts of interests. As it turned out, Murphy was admonished by the Disciplinary Review Board and was replaced as town attorney by William DeMarco, who has a firm in Wayne. When the ethics waiver ordinance was adopted in 2003, DeMarco complied. Paff's request for DeMarco's ethics history touched off the case that is now in the Appellate Division.
Town clerk Kevin Byrnes filled the request but blacked out most of the document on grounds it was a personnel record exempt from disclosure under the Open Public Records Act. Paff, represented by Montclair solo Richard Gutman, sued Byrnes and is arguing in the Appellate Division that the redaction was illegal. Under OPRA, personnel records are disclosable if another law requires it, and that other law is the waiver ordinance, Gutman argued. Alfano, as counsel to Byrnes, argues the ordinance violates OPRA's strictures against disclosure of material barred by state law and public policy, including rules against disclosure of material the Supreme Court deems confidential. What's more, he argues, the ordinance is defective for not telling lawyers explicitly that the information will be made public.
Henry Gottlieb 10-03-2005
©2005 New Jersey Law Journal
http://www.njlj.com
Towns and the lawyers who work for them should pay heed to what's happening in West Milford, a woodsy patch of northern New Jersey where the search for ethically clean attorneys is hitting new heights.
West Milford is the only town in the state with an ordinance that requires its lawyers to grant access to their records on file with the Office of Attorney Ethics - files that may contain secret stuff like pending investigations or grievances that turned out to be frivolous.
Two weeks ago, the town council proved it wasn't kidding. It found that Arthur Timins, outside counsel for tax appeal defense, failed to comply with the December 2003 ordinance and fired him.
The ouster comes less than a month before the Appellate Division is to hear arguments on the legality of the ordinance, or at least whether the town must make the ethics information it receives from the OAE public upon request.
"We're looking for attorneys who aren't afraid to divulge their entire ethics history and then we will get the cream of the crop," Councilman Robert Nolan says. "If you have anything you don't want to disclose, then you shouldn't be coming to West Milford looking for work from the township."
Others aren't so sure. Last year, Passaic County Assignment Judge Robert Passero ruled against public disclosure. The appeal, to be heard in Hackensack on Oct. 18, will decide whether he was right, but it also gives the appeals court an opportunity to wipe the law off the books.
That would be OK with Salvatore Alfano, a Bloomfield solo who is defending the town clerk's decision to keep the secret data out of the public's hands. He's afraid the ordinance, taken too far, could encroach on the Supreme Court's power to regulate lawyers.
"Your honor has to put a stop to it in place, and this is the place to stop it," he told Passero.
Political Factors
The lawyer with the most reason to dislike the measure is the freshly removed Timins, of Roseland's Shiriak & Timins, who says that his ethics record is clean, that the council knows it and that he complied with the spirit of the law. Timins insists he was targeted for firing because he was the local Republican Party's election campaign treasurer and Democrats on the six-member council wanted him out. Two Republicans bowed to pressure and voted to oust him, he says. Timins had represented the town when the ordinance was adopted, and he submitted the requisite waiver, authorizing the OAE to send the town authorities his ethics history. Under the ordinance, lawyers retained by the town and its school, planning and zoning boards are required to submit the waiver within seven days of being hired or rehired.
As a practical matter, the waiver is similar to those granted by applicants for many public positions, giving prospective employers access to privileged information held by previous employers. Timins says he doesn't agree with the law's philosophical underpinnings. He says towns are entitled to counsel who are "currently competent and currently ethical." The information in the OAE's public files - the history of past public discipline and current formal complaints - should be enough of a record on which to base an appointment, he says.
Past grievances that came to nothing and current investigations that may be fruitless do not reveal whether there's anything wrong with a lawyer's ethics at the time he or she is hired, he says. This past July 6, the town council passed a new resolution approving Timins' appointment for tax appeal work, but Timins' didn't send in another waiver. Nor did he respond to a reminder sent to him on Aug. 22 by the town clerk. On Sept. 21, the council voted 4-2 to fire him because he hadn't filed the waiver. Timins says he didn't send in the waiver because the one on file since 2003 gave the council all the powers it needed and that he didn't have to send it in because the July 6 resolution hiring him wasn't really an appointment: It was the codification of a fee agreement. And while the ordinance is explicit about the seven-day requirement, there was nothing in the letter referring to the deadline, he says.
Since his firing, Timins has sent in the waiver and would like the council members to accept it, he says. If they don't, he's not likely to sue to get his job back, mostly because the $105 hourly rate in the contract doesn't make the effort worthwhile, he says. A simple request won't work, says town attorney Fred Semrau of Dorsey & Semrau in Boonton. "I believe at this point it would be too late because the ordinance is very clear," he says. "It's very strict." The waiver has to be sent in within seven days of an appointment or reappointment and "it was a reappointment." Semrau says of the ordinance, "I think it's very good. The client, who is the governmental entity, should have the information about the attorney they are hiring." A leading local municipal lawyer agrees with him. Robert Renaud of Palumbo & Renaud in Cranford, chairman of the New Jersey State Bar Association's Local Government Law Section, says he can't think of any bar to a municipal requirement that prospective retained attorneys make their private ethics histories available. It doesn't even have to be codified in an ordinance, he says. On the other hand, making the information public doesn't seem right, particularly information about unfounded grievances, says Renaud, giving an off-the-cuff opinion and not speaking for his section.
Fighting the Old Guard
The idea for the ordinance came from John Paff, a Libertarian Party leader in Somerset County. He makes a livelihood owning rental properties, he says, sparing him from 9-to-5 commitments and giving him leisure time to work as a self-appointed public advocate for open government and lawyer accountability.
After years of needling, cajoling and sometimes suing public officials to pressure them into opening records to the public, Paff has almost become a member of the establishment. His lawyer-watching Web site, www.cjnj.org, posts such OAE documents as lists of pending complaints, otherwise accessible only in district ethics committees and OAE offices. Paff says that in 1996 he recommended an ordinance like West Milford's to town officials in Franklin Township, where he lives. But they weren't interested. He also has received polite but terse turndowns from governing bodies in Boonton and Mountain Lakes. Paff found common cause with a group of homeowners in West Milford, including a retired New York Times editor, Martin O'Shea. A critic of old guard politicians who kept tight control over public business, O'Shea has sued town officials for noncompliance with open records laws, edited an online newsletter delving into minutiae of local decision-making and campaigned to have longtime town attorney Martin Murphy investigated for alleged conflicts of interests. As it turned out, Murphy was admonished by the Disciplinary Review Board and was replaced as town attorney by William DeMarco, who has a firm in Wayne. When the ethics waiver ordinance was adopted in 2003, DeMarco complied. Paff's request for DeMarco's ethics history touched off the case that is now in the Appellate Division.
Town clerk Kevin Byrnes filled the request but blacked out most of the document on grounds it was a personnel record exempt from disclosure under the Open Public Records Act. Paff, represented by Montclair solo Richard Gutman, sued Byrnes and is arguing in the Appellate Division that the redaction was illegal. Under OPRA, personnel records are disclosable if another law requires it, and that other law is the waiver ordinance, Gutman argued. Alfano, as counsel to Byrnes, argues the ordinance violates OPRA's strictures against disclosure of material barred by state law and public policy, including rules against disclosure of material the Supreme Court deems confidential. What's more, he argues, the ordinance is defective for not telling lawyers explicitly that the information will be made public.
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