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LAKEWOOD POLICE DEPARTMENT APPLICANT ALLEGES BIAS IN APPLICATION PROCESS. DOES THE PUBLIC DESERVE TO SEE THE FULL RECORDS?




A Lakewood Township official wrote to a police captain regarding an applicant, "what would Civil Service do when this guy beats on some prisoner?"


His job application was then rejected. The applicant, Jeffrey DeSimone, appealed the rejection to the New Jersey Civil Service Commission. This appeal included allegations of bias in the Township officials emails regarding him.


An OPRA request was submitted to the Commission with the intention of receiving the entire file and allowing the public to draw their own conclusions as to any bias in the emails. The Commission denied the OPRA request.


The New Jersey Appellate Division has just dismissed an appeal of the OPRA denial.


Jeffrey DeSimone applied for a police officer position at the Lakewood Police Department.


The police department rejected his application after a background check revealed that he failed to disclose his 2015 removal or resignation as a special class police officer after a verbal altercation with his girlfriend's neighbor; advised he was laid off from a job though his former supervisor attested he was fired due to work conflicts; threatened another recruit at the police academy; and had a temporary restraining order.


DeSimone appealed his removal to the New Jersey Civil Service Commission.


In his appeal, he alleged bias due to an email from a Township official to a police captain stating, "what would Civil Service do when this guy beats on some prisoner[?]"


The Commission denied his appeal, finding that a police officer is a special kind of employee, and that rejection of his application because he did not meet the standards for a police officer. The Commission specifically stated that the police department has "demonstrated sufficient information as to DeSimone's ineligibility."


The Commission also rejected his bias allegation, ruling that the Commission acted in accordance with its statutory role in requesting documentation and addressing deficiencies. 


The Commission declined to forward DeSimone's appeal for an administrative law hearing.


In February 2022, the president of Association for Governmental Responsibility, Ethics and Transparency (AGREAT) submitted an Open Public Records Act (OPRA) requesting DeSimone's appeal files.


Randy Belin, custodian of records, denied the OPRA request, advising that "the . . . Commission appeal files [we]re not public records." AGREAT then requested the records under the common law right of access stating, "There can be no interest in privacy while we have an interest in governmental regularity and fair treatment of veterans." On March 4, 2022, the Commission again denied AGREAT's request reiterating that the "appeal files [we]re not public records."


On March 28, 2022, AGREAT filed an order to show cause and verified complaint in New Jersey Superior Court in Mercer County, alleging the Commission violated the common law right of access to public records, the New Jersey Constitution, the New Jersey Civil Rights Act, and requested an award of attorneys' fees.


Judge Robert Lougy dismissed the complaint, agreeing that AGREAT had demonstrated the documents were public records and established a public interest in veterans' fair employment treatment but found after balancing the interests in disclosure against the Commission's interests in non-disclosure, AGREAT was not entitled to the documents under the common law right of access.


AGREAT appealed the ruling, arguing that the records should be released so the public can draw its own conclusions as to DeSimone's allegations of bias and collusion based on the email between the Lakewood Township official and the police captain.


In a written ruling released this week, Appellate Division Judges Smith and Perez Friscia disagreed.


The point of contention is whether AGREAT has established a common law right of access to the Commission's public records over the Commission's interests in non-disclosure. To determine whether a balancing of the interests mandates disclosure of a public document under the common law, a court must undertake a review of the factors identified by the Supreme Court in Loigman v. Kimmelman:


(1) the extent to which disclosure will impede agency functions by discouraging citizens from providing information to the government; (2) the effect disclosure may have upon persons who have given such information, and whether they did so in reliance that their identities would not be disclosed; (3) the extent to which agency self-evaluation, program improvement, or other decision making will be chilled by disclosure; (4) the degree to which the information sought includes factual data as opposed to evaluative reports of policymakers; (5) whether any findings of public misconduct have been insufficiently corrected by remedial measures instituted by the investigative agency; and (6) whether any agency disciplinary or investigatory proceedings have arisen that may circumscribe the individual's asserted need for the materials.


In this case, factors one and two weigh heavily in favor of non-disclosure and the remaining factors are either in equipoise or inapplicable.


Under factor one, the judge found that "[d]isclosure will impede the Commission's primary function to ensure merit-based employment by discouraging employees and applicants from providing information to the Commission for purposes of appealing civil service employment actions."


The Commission undisputedly operates to safeguard a personnel system that provides a fair balance between managerial needs and employee protections for the effective delivery of public services.


Unquestionably, the Commission's function of evaluating challenges to eligibility removals relies on accurate and candid submissions from applicants, appointing authorities, and third parties. It is readily discernible that the disclosure of applicants' personal and sensitive employment information would quell participation. Additionally, the Commission would be inhibited in its charge of reviewing employment decisions and providing FADs if limited information were submitted. We discern no reason to disturb the judge's thoughtful determination that the Commission's function would be impeded; thus, the interest considerations under factor one weigh strongly against disclosure. 


Similarly, under factor two, disclosure of the appeal records would affect the information individuals provide as there exists a reliance on a level of privacy and confidentiality in submitting employment information. Commission records commonly contain information from parties relying on non-disclosure. Access to the records under the common law would deter citizens from applying for civil service positions and result in circumspection of the information provided. Contrary to AGREAT's argument, the judge's determination that applicants would be more likely to "pursue their appeal rights without fear" knowing their personal employment information would not be disclosed as a public record was correctly reasoned. AGREAT's argument that defendants failed to provide support to establish a confidentiality interest is unavailing. 


We also see no reason to disturb the judge's finding that factors three and four were in equipoise based on the record. The judge found the factors were both neutral in the balancing analysis because, under factor three, there was no demonstration that the "agency decision-making w[ould] be chilled," and, under factor four, neither party "indicated" "the appeals files could contain a mix of factual data and evaluation reports."


As to factor five, the judge correctly determined that, based on the record, he could not find "any public misconduct was insufficiently corrected by remedial measures instituted by the [Commission]." In the FAD, the Commission found DeSimone's allegations of bias and collusion unsubstantiated. AGREAT's argument that disclosure is warranted "to allow the public to draw its own conclusions," because the judge misconstrued that an Administrative Law Judge reviewed the matter, and that the Commission conducted "no investigation," is without merit. A mere statement of misconduct is insufficient.


Indeed, we conclude the mere assertion of "a generalized suspicion of corruption" is insufficient to overcome an established public interest in confidentiality. Wilson v. Brown.


Lastly, under factor six, we are unpersuaded by AGREAT's argument that the factor six weighs in favor of disclosure.


In summation, the Appellate judges affirmed the lower court's ruling affirming the Commission's denial of the OPRA request.


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