NJFOG wrote about this issue in August 2015. The case was subsequently filed and heard on January 4, 2016. At issue is whether Executive Order 26 has teeth, specifically the part that says “resumes of unsuccessful candidates may be disclosed after the search has been concluded and the position has been filled, but only where the unsuccessful candidate has consented to such disclosure.” The Judge opined that the need to contact candidates would create an additional responsibility and new records not required by OPRA, felt (but did not decide) that the Executive Order may have improperly limited an OPRA exemption, and ruled against disclosure. NJFOG president Walter Luers stated, “The candidates get to choose how much privacy they want. Here, Trenton is choosing for them. They have a duty to ask.” “The executive order means nothing. It might as well not even exist,” said John Paff. You can read the 2-page Court Order here. -NJFOG
Jan. 5, 2016
By Isaac Avilucea
A judge ruled Monday the city does not have to turn over resumes of unsuccessful candidates who were passed over for an opening for chief municipal prosecutor.
Noting it was one of the more “unusual” public record cases she has heard, Mercer County Superior Court Judge Mary Jacobson said the city has wide latitude to interpret an executive order issued in 2002 by former Gov. James McGreevey that says resumes of unsuccessful candidates may be publicly disclosed with candidates’ consent, according to a recording of the proceeding.
The judge also ruled resumes are personnel records and therefore exempt from the state’s Open Public Records Act, a position vehemently disputed by a government records guru who fought over the records based upon The Trentonian’s reporting.
“The word ‘may,’ in many cases, has been interpreted to grant discretion as opposed to ‘shall,’” Jacobson said. “I think this language gives discretion to the entity. Does it make the executive order a dead letter? No. There’s still discretion. If there’s any particular decision that’s particularly sensitive and the entity wants to show it made a good choice, they’re free to go check even after the hiring.”
That didn’t happen in this case with Trenton, which denied requests made by The Trentonian and government activist John Paff under the state Open Public Records Act for the resumes of the passed-over candidates who applied to become the next chief municipal prosecutor.
The job went to Kimberley Wilson, a former city attorney without prosecutorial experience appointed by Mayor Eric Jackson to replace Nakia White.
White left for a job at Michigan State University, creating the opening and creating questions about whether Wilson’s appointment was politically motivated.
Wilson was confirmed despite questions about from city councilors about the transparency of the hiring process and whether she had the chops to lead the city’s chief municipal prosecutors.
The city now contends it gave another unnamed person with experience as a prosecutor a shot at the job before it went to Wilson.
“The position was filled by an assistant municipal prosecutor who was standing in as acting chief municipal prosecutor because the chief municipal prosecutor left,” said Jeanne McManus, the attorney who represented the city at the hearing. “And when that acting assistant municipal prosecutor said, ‘I hate this; I don’t want to do this. I hate this administrative stuff; I just want to go back to being an assistant municipal prosecutor,’ [the city] turned around. They had [Wilson’s] resume and they said, ‘Would you like this position?’”
This is the first time the city mentioned another candidate other than Wilson. Trenton brass have refused to name any applicants or acknowledge the criteria it used to select the successful candidate.
That led Paff to sue the city over the resumes following a series of stories in The Trentonian revealing Wilson landed the job despite not having prior experience as a prosecutor and that she had been serving as chief municipal prosecutor for three months without being confirmed by City Council.
He said in a phone interview Tuesday he is deciding whether to appeal Jacobson’s decision, which he said he believes is based upon “fanciful” thinking government agencies and municipalities will exercise discretion in a manner that favors disclosing documents it deems sensitive.
“Whenever you give an agency discretion that will always lead to denial of access,” Paff said. “Giving them discretion is de facto exempting the record from disclosure. Their default position is to deny. Maybe there is a town somewhere. I haven’t found it. The executive order means nothing. It might as well not even exist.”
At issue before Jacobson was whether Executive Order 26 has teeth, specifically the part that says “resumes of unsuccessful candidates may be disclosed after the search has been concluded and the position has been filled, but only where the unsuccessful candidate has consented to such disclosure.”
While Jacobson balked at deciding “separation of power” issues, she questioned whether the executive order, which gives the governor authority to keep certain documents secret, also amended “the personnel exemption that the legislature adopted.”
“I was really troubled that an executive order could essentially amend an exemption that OPRA had intended by making public something that the legislature has determined should not be public,” she said. “Did this executive order go beyond the statute? Is there a question of separation of powers? It’s not up to the governor to make the law, except that the legislature gave him this power to add to the exemption. But I didn’t see that it gave him the power to take away from the exemptions.”
Walter Luers, the attorney for Paff, argued the city should have turned over the resumes or at least contacted the unsuccessful candidates to see if they would allow the release of their resumes.
“The candidates get to choose how much privacy they want,” he said. “Here, Trenton is choosing for them. They have a duty to ask.”
McManus countered public record law does not require records custodians to create new records during procurement and that is what Paff asked the city to do by contacting the candidates. She also contended turning over the resumes would “provide no insight into whether Ms. Wilson is qualified.”
Jacobson sided with the city on the point of creating additional responsibilities.
“That makes me feel very uncomfortable under OPRA,” she said. “You identify a record. You turn it over. That’s the end of it.”
(Article online here and re-posted above.)