Murphy DEP Acting Commissioner Abusing COVID As A Pretext To Hide His Ethics Disclosure And Recusal Documents
Who Were LaTourette’s Former Corporate Clients?
Has He Recused Himself From Involvement In Their Interests?
DEP Denies Public Records Request For Ethics Documents
Shortly after Shawn LaTourette was appointed Acting DEP Commissioner by Gov. Murphy, I filed an Open Public Records Act (OPRA) request for his ethics disclosure and recusal documents.
I filed this request because Mr. LaTourette previously worked for a private law firm and represented corporate clients in environmental regulatory compliance matters he now presides over as DEP Commissioner.
Under professional legal ethics and NJ ethics laws, Mr. LaTourette was obligated to disclose and recuse himself from matters he was previously involved in as a private corporate lawyer.
Mr. LaTourette should have filed a disclosure/recusal package when he first went to DEP as a high level manager (Deputy Commissioner and Chief of Staff) in [Correction: September/October] 2018 (fully disclosing his former legal clients and the matters he worked on and recusing himself from any involvement with them.)
He should have filed a more thorough disclosure/recusal package when he was appointed as Acting Commissioner in January 2021.
The DEP ethics Officer should have reviewed all this for compliance with NJ uniform ethics laws:
IX. RECUSAL ON OFFICIAL MATTERS
A State officer or employee or special State officer or employee is required to recuse him/herself on an official matter that involves any private sector individual, association, corporation or other entity that employed or did business with the State officer or employee or special State officer or employee during the one year prior to the employee’s commencement ofState service.
A State officer or employee or special State officer or employee is required to recuse him/herself on an official matter if he/she had any involvement in that matter, other than on behalf of the State, prior to commencement of his/her State service.
The DEP Ethics Officer also reviews for compliance with DEP’s Ethics Code (this may have been repealed) and issued LaTourette a Guidance memo memorializing the disclosure and recusals.
XV . RECUSAL
(a) A Department employee shall recuse himself or herself from a matter if he or she has:
1. Any financial interest, direct or indirect, that is incompatible with the discharge of his or her duties as a Department employee; or
2. Any personal interest, direct or indirect, that is incompatible with the discharge of his or her duties as a Department employee.
The State Uniform Ethics Code has a very broad standard regarding potential conflicting interests:
interest might reasonably be expected to impair a State official’s objectivity and independence of judgment in the exercise of his/her official duties or might reasonably be expected to create an impression or suspicion among the public having knowledge of his or her acts that he/she may be engaged in conduct violative of his/her trust as a State official.
The ethics review procedure is formal (and should be subject to OPRA):
Upon determining that a State official shall recuse him/herself on any matter, the State official shall execute the recusal in writing, and shall have no involvement with the subject matter of the recusal. If a State official cannot determine whether he/she should execute a letter of recusal in any matter, the State official shall contact his/her agency ELO or the Commission for guidance. A State official shall seek the advice of the State agency’s counsel, agency ELO or the Commission as to the propriety of participation in a matter if any person requests that a State official recuse him/herself from that matter. Oral advice, followed up by a writing, shall be provided by the agency’s counsel, the agency ELO or the Commission to avoid delay. Oral advice shall subsequently be memorialized by a writing or by inclusion in public minutes.
Why does Mr. LaTourette have time to prepare for and attend trivial matters, like the recent Rutgers panel (sponsored by PSE&G!!!) but no time to retrieve his ethics records, which are a very serious matter?
Will the NJ press corp ask him?
Below is DEP’s reply to my OPRA request, which I received earlier today. Note that DEP does not provide a deadline or even make a commitment to ever responding, i.e. “once resources allow”.
It is obviously lawyerly written, so I suspect that they are laying the groundwork for denial of records on the basis of “privilege/confidential concerns”.
That “privilege/confidential” information would likely be the corporate clients LaTourette represented and the cases and matters he represented them on. Of course, if DEP were to deny that information, it would defeat the whole purpose of ethics review and recusal, as well as the OPRA law.
Please be advised that at this time, due to the circumstances surrounding the on going COVID-19 pandemic and the direction of the Governor to strictly observe the practice of social distancing and directing State Employees to work remotely; the NJDEP is not able to fully respond to records requests within the prescribed timeframe under the Open Public Records Act, N.J.S.A. 47:1A-1 et seq (OPRA). The NJDEP work force has transitioned to work remotely from home, impacting the ability oof the NJDEP to access onsite and archived government records, review records for responsiveness and privilege/confidential concerns, conduct onsite inspections, and copy responsive records. In accordance with N.J.S.A. 47:1A-5(i)(2), which state the the deadlines under OPRA, to grant or deny access t0 a government record shall not apply if no reasonable efforts are available based on the circumstances, and maintaining consistency with the social distancing directives of the Governor, the NJDEP is not able to complete the search f0r responsive records and respond to this request. Once resources allow, the NJDEP will complete and issue the final Government Records Request Form response to this request. We apologize for this inconvenience.