WILSON v. CORZINE & KATZ: NO SHIELD FOR ROGUE COMMUNICATIONS

At first glance it seems that Tom Wilson has a steep mountain to climb if he is to gain public access to the Union email negotiation communications between Governor Corzine and Ms. Katz. News articles’ phrases like “executive privilege”, “confidential process privilege”, and “rights of privacy” portray a daunting challenge. So let’s play Devil’s Advocate. Let’s conjure up some offhand scenarios, amateur views and quite possibly totally wrong conclusions. And unfold them in the court of public opinion (“be they the quick or the dead”). Let’s think about why the underdog should win this one.

There seems to be no factual issue Governor Corzine abused his Office by placing his personal emotional attachment to Ms. Katz above his official duties when the Governor accepted and perpetuated the practice of receiving secret emails and telephone calls from Ms. Katz. Governor Corzine and Ms. Katz knew the proper negotiating procedures and their subsequent acts and omissions in opposition to those procedures show that, because of their personal relationship, they willfully violated the procedures. Since neither New Jersey nor Ms. Katz have any legitimate interest, let alone a substantial or compelling confidential privilege interest, in rogue communications, the emails and telephone conversations fall outside any exceptions to public release. Conversely, since the Government and the Public have a substantial and compelling interest in the appearance and actual integrity of the negotiating process and both the Government and Public have a substantial and compelling interest in both the appearance and actual trust in the integrity of Government functioning, the emails and telephone conversations should be released to the public arena.

THE SECRET COMMUNICATIONS BETWEEN GOVERNOR CORZINE AND MS. KATZ CONSTITUTE AN ACTUAL IMPROPRIETY.

The Governor’s Ethics Advisory Panel condemned the act of secret communications, regardless of content, between the Governor and Ms Katz because such communications, standing alone, are in and of themselves an actual impropriety.

“Our advice, moving forward, is the Governor’s friends and other close associates be briefed in advance by the Governor’s Counsel or Ethics Liaison officer that they must have no direct communication with the Governor concerning matters involving the exercise of his duties as Governor in which they have a personal, professional, or pecuniary interest. If the close associate is unable or unwilling to honor such a commitment, then the governor must cease communicating until the issue is resolved. This is a difficult standard to meet; it is by its nature awkward, and may strain relationships. It is never easy to rebuff a friend or a loved one … [S]uch a bright-line prohibition is the surest way to p[reserve the Governor’s private life while respecting his public duties. The boundary between public duty and private life must be strictly observed, or it will not be respected.” Ethics Advisory Panel Report, May 8, 2007, P.33.

BOTH GOVERNOR CORZINE AND MS. KATZ NEW THE SECRET COMMUNICATIONS WERE FORBIDDEN.

It is a common experience in collective bargaining that a participants attempt to ‘end run’ the process by approaching interested parties informally. At the outset of the State’s process, Mr. Genova cautioned the entire State team, including the Governor, of this likelihood. Mr. Genova further instructed the State team, including the Governor, to try to avoid such informal discussions, and to redirect the caller to the formal bargaining process. According to Mr. Genova, he instructed all involved that ‘[t]he extent a Union official would seek to barging, and you find yourself in a position where such an exchange occurs, you should undertake efforts to divert that Union official to the bargaining table and back to me as lead negotiator as best as you can. …’ The Governor recalled that this cautionary instruction was ‘drilled into me’ by the negotiating team”. Ethics Advisory Panel Report, May 8, 2007, pgs. 13-14.

“… Thomas Shea, the Governor’s Chief of Staff … had been with Senator Corzine in Washington, D.C. and came to know Ms. Katz at that time. He said he did not need Mr. Genova to tell him that overtures might be made toward the Governor, and that caution need be taken. He informed us that as the Governor’s gatekeeper, he informed Ms. Katz that the Governor ‘is under strict instructions’ not to discuss these matters.” Ethics Advisory Panel Report, May 8, 2007, p. 22.

GOVERNOR CORZINE CONDONED ONGOING SECRET COMMUNICATIONS WITH MS.KATZ SOLELY BECAUSE OF HIS PERSONAL RELATIONSHIP WITH MS. KATZ.

Although the Governor may not have created the situation, he certainly condoned and encouraged such communications by allowing them to continue. And, Governor Corzine, in opposition to his duty as Governor, did not attempt to end the secret communications and allowed them to continue because of his relationship with Ms. Katz. .

Ms. Katz “stated that she and the Governor have remained friends and acknowledged that they had contact through the early stages of the negotiations. Contact was by e mail and telephone.” Ethics Advisory Panel Report, May 8, 2007, p. 25.

“On several occasions during the process, State negotiators recalled, the Governor during the course of a conversation would mention the fact that Ms. Katz had contacted him.” Ethics Advisory Panel Report, May 8, 2007, p.19

“He [Governor Corzine] described that it is not easy to disengage from a relationship that is both personal and political.” Ethics Advisory Panel Report, May 8, 2007, p. 23.