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Diogenes looking for an honest man

A friendly reader shot me an email in response to yesterday’s post.

This reader took exception and questioned why I referred the misconduct of a State government official to the Office of Attorney Ethics (OAE), instead of some government agency with authority over State officials. This reader wrote:

how do you know office of atty ethics handles actions by govt employees. it may only handle attorneys in private practice or those before supreme court. you are complaining about a govt employee action. who to your knowledge keeps govt employees honest and govt agencies honest at the nj state level? who is supposed to do that? anybody?

So I clarified my reasons for going to OAE. Basically, there is no other State agency with jurisdiction to address the misconduct I was troubled by: the AG’s Office of Public Integrity enforces criminal misconduct, and there was no crime involved. The State Ethics Commission enforces the State Ethics law, which does not regulate the conduct I was troubled by. So I went to OAE to address the conduct via professional ethics.

The reader was not satisfied with that response, and fired off this comment:

is there a law that should be in place where citizens outraged by lies can file. maybe we need new laws on the outrageous conduct of govt employees?

Hahhahaaha! Imagine that! That Office would have one hell of a tremendous workload!

But instead of laughing it off, I provided a serious closing observation of what should have happened to DEP Commissioner LaTourette, if we had a functioning democracy, which saddens me:

The legislature could conduct oversight and censure him, but both Houses are controlled by D’s so they won’t.

The Governor could reprimand or fire him, but he won’t because the lies protect the Gov. politically.

The entire DEP Management Team could resign in protest or blow the whistle, but they won’t because they have cushy jobs making good money with great benefits and a pension.

The press could expose him and criticize the lies, but they won’t because they too are corrupt and lazy and stupid and they don’t see reporting on and correcting lies as their job.

Environmental groups could call him out but they won’t because they too are either stupid or corrupt and want to keep the Foundation and DEP grant money flowing.

Disgusting all around.

No integrity anywhere.

And so it goes.

Alleged Facts And Ethics Violations Are Not Challenged

OAE Asserts An Absurd Legal Basis For Dismissal

The NJ Bar Association’s Office Of Attorney Ethics (OAE) “declined to docket” “at this time” the ethics complaint I filed against Murphy DEP Commissioner Shawn LaTourette (to read my August 1, 2024 complaint hit this link).

The OAE “declination” is so seriously flawed and in error, that it raises issues of either professional incompetence or political interference. It was issued on the same day the complaint was filed, so there was not even a cursory review conducted by OAE. Instead, OAE asserted a sham basis to decline.

In August 1 and August 20 letters, the OAE stated the basis for their decision.(hit this link to read the applicable OAE regulations).

Importantly, neither OAE letter challenged the facts or the ethical violations I alleged.

Instead, the OAE misinterpreted my complaint as an air pollution permit dispute (instead of an ethics matter). The OAE erroneously characterized the target of the complaint as regulatory action by DEP (instead of false, misleading and unethical statements by DEP Commissioner LaTourette). And the OAE relied on a legal interpretation of the applicable ethics regulations which is absurd on its face, as I discuss below.

In the August 1 letter, the OAE stated the following: (boldface mine):

NOTICE THAT DOCKETING IS DECLINED ON THE BASIS OF SUBSTANTIAL SIMILARITY OF PENDING LITIGATION PURSUANT TO R.1:20-3(f).

It is the determination, pursuant to R. 1:20-3(f), to decline to docket the grievance as a matter of discretion, where the criteria of the Rule are presented.

(f)Related Pending Litigation. If a grievance alleges facts that, if true, would constitute unethical conduct and if those facts are substantially similar to the material allegations of pending civil or criminal litigation, the grievance shall be docketed and investigated if, in the opinion of the secretary or Director, the facts alleged clearly demonstrate provable ethical violations or if the facts alleged present a substantial threat of imminent harm to the public. All other grievances involving such related pending civil and criminal litigation may be declined and not docketed. If the matter has already been docketed when the related pending litigation is discovered, the matter may be administratively dismissed, provided the matter is still in the investigative stage. The grievant shall be informed in writing of any decision, together with a brief statement of the reasons therefor and a copy of any Court Rule or written guideline supporting declination. Once a formal complaint has been filed, the matter shall not be dismissed nor held in abeyance pending completion of the related litigation, unless so authorized by the Director. Whenever an attorney is a defendant in any criminal proceeding, the Director shall docket the matter and may, in the Director’s discretion, investigate and prosecute the disciplinary case.

I have determined not to docket the grievance at this time (my emphasis), because related litigation is ongoing (cite). After the conclusion of the pending litigation, you make choose to resubmit a new grievance against the attorney, or to refile the same grievance.

I challenged their decision as a “a mischaracterization and misinterpretation of my grievance” and a misinterpretation and flawed application of the OAE regulatory term “related pending civil and criminal litigation” and requested reconsideration. I wrote:

Please be advised that this is purely a matter of law and ethics, not merely a policy dispute:

I was NOT referring to the DEP’s pending regulatory decisions in that matter, and explicitly stated that this was NOT a policy dispute.

My grievance is based on Commissioner LaTourette’s knowingly false statements. As you know, attorney ethics prohibit false representations of the facts and law. This is unprofessional and dishonest behavior that warrants ethical sanction.

I also called and left 2 detailed questions and statements on the OAE phone line.

On August 20, the OAE replied to respond to my criticisms and to clarify their decision.

OAE doubled down on their initial errors and made an additional misinterpretation of my complaint. OAE wrote:

This letter is in further reference to our letter to you of August 1, 2024 declining to docket your grievance on the basis of substantial similarity of pending litigation pursuant to R. 1:20- 3(f), as well as your phone call of this date requesting clarification of the declination.

Please be advised that your grievance references “ a pending Clean Air Act Title V. Operating Permit Modification sought by permit applicant Passaic Valley Sewerage Commission.” Pending litigation is meant in its broadest sense to encompass any pending litigation or pending agency or governmental action as referenced in the body of your grievance. The Office of Attorney Ethics is not the appropriate body to address your dispute regarding the actions of the New Jersey Department of Environmental Protection.

“pending agency or governmental [permit] action” is NOT “pending civil and/or criminal  litigation”. And notice how the OAE omitted the terms “civil and criminal” that are used in the applicable regulation.

The compounding series of errors is incredible.

How could the OAE misconstrue an ethics complaint directed at an individual lawyer, the DEP Commissioner, for alleged false and misleading public statements, with a complaint targeted at the DEP involving a permit decision? (especially when my complaint anticipated this evasion and specifically stated that this was NOT about a policy dispute with DEP).

Worse, it boggles my mind how an OAE lawyer could interpret the phrase “related pending civil or criminal litigation” within the meaning of R. 1:20-3(f) as applicable to a regulatory permit process?

In addition to the blatant mischaracterization of my complaint, this kind of egregious legal error (i.e. “litigation” does not mean a regulatory permit process) suggests that OAE lawyers are incompetent or that there was political intervention to block OAE enforcement against a politically powerful lawyer.

When I wrote to challenge this blatant legal error, the OAE informed me that the regulations prohibit appeals of OAE decisions to decline to docket (investigate) ethics complaints (which OAE calls “grievances”).

That all amounts to an abuse of process, as far as I’m concerned.

Regardless, given that the complaint was dismissed “at this time“, I plan on refiling the complaint after the PVSC permit matter is resolved.

DEP Drinking Water System Rules Allow Water Purveyors To Define And Set Standards

DEP Continues Voluntary Status Quo Despite Mandatory Law

The DEP today proposed new regulations to implement a 2021 law designed to assure that drinking water systems are well maintained and that their physical assets are managed appropriately to assure compliance with regulatory standards and prevent failures and threats to human health. The law also sought to upgrade infrastructure to reduce leaks and waste of water resources.

Long before the current crop of Foundation Funded Frauds, we helped put the infrastructure deficit issue on the policy agenda, way back in 2005 testimony to the Clean Water Council and in this 2006 Report, see:

• HUGE NEW JERSEY WATER INFRASTRUCTURE NEEDS NOT BEING MET

We also took leadership in warning of the climate risks a decade ago, see:

• Environmental Infrastructure Funding Bills Continue to Ignore Climate Risks and Adaptation

The 2021 law was passed in order to put teeth in DEP’s voluntary 2014 “Asset Management Guidance” and to mandate that drinking water systems develop Asset Management Plans and finance and actually implement them.

We exposed the flaws of that voluntary “Asset Management” program when it was initially adopted by the Christie DEP, see:

• Christie’s Other Hidden Multi-Billion Dollar Deficit – No Plan to Pay for Huge Water Infrastructure Shortfall Aggravated by Sandy

According to the Murphy DEP proposal:

The [2021] WQAA requires that the specified public community water systems implement asset management plans within 18 months of the Act’s effective date … Asset management programs include the process of ensuring that there is sufficient investment in the system, as well as the planned maintenance, repair, replacement, and upgrade of the physical components of a drinking water system.

Unfortunately, the DEP failed to get the message from the Legislature that their voluntary 2014 Asset Management Guidance Document was the source of the problem because it was voluntary and implementation was not mandatory. 

The DEP proposal delegates essential standards and would allow local water purveyors to define the goals and make the Asset Management Plan effectively voluntary:

Due to the large amount of variability between systems, the Department will not mandate specific goals, nor evaluate specific goals as being adequate or inadequate. These proposed requirements would provide  minimums, such as compliance with drinking water rules and regulations, and being reflective of the service goals and metrics of the system.(@ p.16)

WTF? DEP will not set goals or determine if local goals are adequate? Are you kidding me?

The Department relied on existing regulatory standards – the same standards the new law sought to strengthen:

The 15 percent non-revenue water threshold is consistent with the standard from the existing rules (N.J.A.C. 7:19-6.4(a)).

Even for the most “critical” risks – including climate risks – and engineering and operating features of the drinking water systems, DEP abdicates and continues the current voluntary approach and effective delegation and privatization of setting goals, defining critical conditions, outlining technical elements, and standards:

This rulemaking establishes a process for performing criticality assessments at N.J.A.C. 7:10-6.3(b)4 that is designed to evaluate the risk for each asset in a public community water system. The first step of this process is to use the Business Risk Exposure (BRE) framework. In the BRE framework, the probability of failure (scored between one and five) and the consequence of failure (scored between one and five) are multiplied together to create a criticality rating (scored between one and 25). The BRE framework is a commonly recognized methodology for evaluating risk of assets. It is recommended for use in the Department’s 2014 Asset Management Guidance (https://www.nj.gov/dep/assetmanagement/pdf/asset-management-plan-guidance.pdf), … The Department is not requiring the use of any specific values in criticality assessment. Instead, the Department is emphasizing the comparison of the probabilities and consequences of failure to determine criticality as the essential aspect of this part of the process.

Did you get that? DEP will allow private water purveyors to define critical risks.

Here is another blatant loophole regarding the need to determine and reduce the loss of water – note how DEP did not impose and mandate critical new requirements – that would be too “complicated” (and “expensive”):

To accompany this effort, the Department will work with State drinking water sector training organizations to ensure that systems will receive training that will allow them to complete an audit successfully. Some states have incorporated steps to include the Level 1 validation process. This is a process outlined by the Water Research Foundation and AWWA that would have individuals qualified through a training program, and overseen by the State evaluate data quality of audits prior to submittal to the State. However, due to the complication, expense, and staffing associated with developing a licensing program, which would be necessary to meet the requirements of a robust Level 1 validation program, such a process is not incorporated into this rulemaking.

Coulda, Woulda, Shoulda

The entire proposal is full of discretionary actions the DEP “could take” or “may take” – instead of mandates that the water purveyors “shall take”, again defeating the Legislative intent of the 2021 law, which was to mandate implementation and ratchet down on current discretionary and unenforceable DEP standards.

As the quality of submitted data improves, the Department could, pursuant to the Water Supply Management Act at N.J.S.A. 58:1A-15f and consistent with N.J.A.C. 7:19-6.4, 6.5, and 8.3, require systems that exhibit significant water loss to take actions to reduce such loss. Examples of actions that the Department would take to compel systems to reduce losses include: a denial of increases to water allocation, leak detection surveys, submittal of a water main replacement schedule, or a meter replacement program. Each of these follow-up actions is consistent with existing regulatory requirements

DEP is falsely implying that a lack of data is why standards are not enforced, (“as quality improves”) and signaling that any implementation is many years in the future.

Once again, another example of where DEP injects discretion into what should be a mandatory standard:

The Department is proposing that, where a public community water system is in the bottom 35th percentile of comparable systems per the findings of submitted water loss audits, or reports greater than 15 percent UFW or non-revenue water, the Department may take several actions to compel a public community water system to reduce water losses.

So, under the guise of ratcheting down and imposing mandatory Asset Management Plan implementation requirements, the Murphy DEP has done exactly the opposite and preserved the status quo voluntary program.

Accordingly, our drinking water assets will continue to deteriorate and investment upgrade decisions will continue to be made primarily by private corporate water purveyors in order to maximize profits, not protect public health and the environment.

Harris/Walz Democrats Have An Opportunity To Follow FDR’s Lead

President Biden delivers the keynote address tonight to start the Democratic Party’s convention in Chicago.

The ghosts and many echoes of Chicago ’68 (see:The Ghost of Hubert Humphrey Is Stalking Kamala Harris have gotten the attention of even The NY Times (see: When Chaos Came To Chicago”).

Since unfortunately I can’t be out in the streets with the protesters, I thought I’d offer moderate thoughts on a far different history, a timely focus on what FDR once described as “The Choice before Us” in his famous 1938 “Message To Congress On Curbing Monopolies”:

Examination of methods of conducting and controlling private enterprise which keep it from furnishing jobs or income or opportunity for one-third of the population is long overdue on the part of those who sincerely want to preserve the system of private enterprise for profit.

No people, least of all a democratic people, will be content to go without work or to accept some standard of living which obviously and woefully falls short of their capacity to produce. No people, least of all a people with our traditions of personal liberty, will endure the slow erosion of opportunity for the common man, the oppressive sense of helplessness under the domination of a few, which are overshadowing our whole economic life. …

The power of a few to manage the economic life of the nation must be diffused among the many or be transferred to the public and its democratically responsible government. If prices are to be managed and administered, if the nation’s business is to be allotted by plan and not by competition, that power should not be vested in any private group or cartel, however benevolent its professions profess to be.

FDR was no Socialist – he was seeking modest reforms to preserve capitalism and to derail political revolution.

Although today’s economic conditions and abuses of power of corporations and monopoly are as bad and in many ways worse than those FDR faced in 1938,  I strongly doubt we’ll hear anything like that from Biden tonight.

FDR framed the issue and source of the problem in his first paragraph: the threat of fascism:

The first truth is that the liberty of a democracy is not safe if the people tolerate the growth of private power to a point where it becomes stronger than their democratic state itself. That, in its essence, is Fascism—ownership of Government by an individual, by a group, or by any other controlling private power.

Today, we face not only the economic power of corporations FDR described.

Today, corporate power has expanded to entrench an Oligarchy that has bought Congress and the Supreme Court, controls the media and cultural institutions – who distribute propaganda – and are financing and stoking culture wars and Christian Nationalists with strong fascistic cultural and political tendencies.

They form the Trump base. They are not right wing Populists. They are fascists.

I urge folks to read the entirety of FDR’s message to Congress and consider the policy and program he set forth: (topical bullets from the address):

• THE GROWING CONCENTRATION OF ECONOMIC POWER.
• FINANCIAL CONTROL OVER INDUSTRY
• THE DECLINE OF COMPETITION AND ITS EFFECTS ON EMPLOYMENT
• COMPETITION DOES NOT MEAN EXPLOITATION
• A PROGRAM

FDR tied his program reforms not to a European Socialists program, but to American traditions:

No man of good faith will misinterpret these proposals. They derive from the oldest American traditions. Concentration of economic power in the few and the resulting unemployment of labor and capital are inescapable problems for a modern “private enterprise” democracy. I do not believe that we are so lacking in stability that we shall lose faith in our own way of living just because we seek to find out how to make that way of living work more effectively. …

It is a program whose basic purpose is to stop the progress of collectivism in business and turn business back to the democratic competitive order.

And that sure sounds like an effective rebuttal to Trump’s delusional attacks on the Democrats as “Communists” and “Socialists”.

Critics Are Downplaying The History And The Implications For Fascist Consolidation

Project 2025 Is A Radical Break With The Traditional Corporate Agenda

The first truth is that the liberty of a democracy is not safe if the people tolerate the growth of private power to a point where it becomes stronger than their democratic state itself. That, in its essence, is Fascism—ownership of Government by an individual, by a group, or by any other controlling private power. ~~~ FDR Message to Congress (1938)

[Update below]

I’ve long been calling for writers, government officials, and political activists to engage and educate the public about Project 2025, see:

• The Right Wing’s New Long Game Plan – “Project 2025″

• What “Project 2025″ Would Do To US EPA, Climate, And Environmental Protection Programs

• Trump’s Project 2025 Attack On The Department Of Interior Might Be Worse Than EPA Dismantling

So I am extremely pleased by the dramatic increase in criticism and media coverage.

But I am frustrated that the critics are overplaying the culture war and identity issues and downplaying the ideological significance and policy implications, particularly given the current cultural, political and legal context.

The primary criticism basically argues the Project 2025 is a rehash of the longstanding Chamber of Commerce Neoliberal pro-business and anti-regulatory agenda, coupled with a misogynistic attack on women. I note but do not discuss today the Christian Nationalist influences.

But while there are policy overlaps with that traditional Chamber of Commerce program, critics are missing the ideological roots of the foundational fascist history and are ignoring the radical nature of Project 2025, particularly in light of the US Supreme Court’s efforts to “dismantle the administrative state”.

The roots of Project 2025 are in an ideological and fascist attack on FDR and the New Deal by a corporate group called The American Liberty League. This group was not only fascist, but plotted a coup on FDR, see:

• Wealthy bankers and businessmen plotted to overthrow FDR. A retired general foiled it.

Ignoring or downplaying this history, ideology, and fascist politics generates a “politic as usual” cynical stance that risks consolidation of fascism in a Trump second term.

The most recent criticism of Project 2025 I read along these lines is this otherwise superb piece at CounterPunch:

• Blueprint for Dystopia: Project 2025

Here is my note to the author that tries to express my concerns:

Thanks for writing that – a couple of thoughts for what I hope is a followup piece:

1) the Trump loyalty test is not limited to defense and intel – but across federal government (Schedule F). That means scientists too. Estimates are over 100,000. Total destruction of the civil service and with it any notion of the public interest, science, and public policy.

2) You missed the Department of Interior recommendations, which are a s bad or worse than the EPA stuff. Please do a followup on Dept. Of Interior – Americans love federal lands!

3) You missed the climate and energy recommendations, which are simply suicidal.

4) You missed the “Unitary Executive”, which, in context of the Supreme Court decision on immunity, and Trump and his base’s fascist and cultural tendencies, must be exposed.

5) I terms of history, I think you downplayed the significance, both of the current and historical context. This is not the same old Chamber of Commerce anti-regulatory agenda. And historically, the roots are best traced to the Liberty League (1934), who supported Nazi’s and plotted a coup of FDR. There is also deep ideological attacks on the New Deal that can be understood as the current reaction against the Green New Deal.

6) Finally, beyond the scope of your piece but intimately related to Project 2025, is the ideological attack by the Supreme Court seeking to “dismantle the administrative state” via invocation of the 19th Century non-delegation doctrine and a new “major questions” doctrine to emasculate government agencies by requiring Congressional delegation of explicit authority.

[Update: this website is unable to accept reader comments – as a result of prior bot attacks – but I thought I’d post this good question I just got on my Substack page and my reply:

Q: what is the traditional corporate agenda? how come there’s a ‘radical break’ in the first sentence and ‘there are policy overlaps’ later on?

A:  Good question. Let me try to explain and illustrate.

The traditional Chamber agenda called for “less government” and opposed “costly regulatory mandates” and “red tape”. These slogans were operationalized in specific policy recommendations for “reform”. An example would be for EPA to set more “flexible” standards, for example, by allowing corporations to average emissions over time (this would allow for a violation of the standard for some period of time) or to monitor on a monthly basis, instead of daily. Or corporations would demand that EPA “streamline” regulatory reviews and provide “certainty”. EPA would then find various ways to do this within existing laws.

These are all basically “reform” initiatives. They accept the legitimacy of government intervention and support the role of science and professionalism and “balance”.

In contrast, the Project 2025 agenda is not reform. It is radical.

It does not accept government intervention as legitimate (i.e. “dismantle the administrative state”). It does not accept government employees and the civil service as legitimate (e.g. they are “deep state actors” with a “Leftist agenda” that need to be replaced by Schedule F Trump loyalists and cronies). It does not accept the role of science or believe in objectivity – they are merely cover for the economic self interests of the bureaucrats (Google “public choice theory” to understand this concept). Project 2025 views protective regulations and taking private property (e.g. agricultural nutrient control programs are really ways to confiscate farmland. Climate just ways to ban cows and eating meat or taking your pickup truck). Project 2025 seeks to replace civil service with Trump loyalists. It seeks to eliminate science and replace them with political and industry advisers. It seeks to privatize and make voluntary the current regulatory apparatus. It does not accept regulation as legitimate and legally authorized by Congress (Google the “major questions” doctrine). It views the President as a dictator of all executive branch policy, e.g. Trump could call the EPA administrator and tell him what to do, regardless of science and fact. This is no exaggeration: remember when trump drew a line on a hurricane weather map? Google the “unitary executive” and read Chapter 1. Trump says climate emergency is a hoax and Project 2025 calls for the elimination of most all climate programs.

The traditional Chamber of Commerce didn’t go anywhere near any of this.

I could provide many more examples. ~~~ end update