NEW JERSEY TREASURY, ET AL., MAY WE PLEASE HAVE APPEARANCES. (APPEARANCES
TENDERED.) CHIEF JUSTICE RABNER: WELCOME COUNSEL. MR. DWYER.
ANDREW DWYER: THANK YOU. CHIEF JUSTICE RABNER, MAY IT PLEASE
THE COURT AN WITH THE COURT'S INDULGENCE I WOULD LIKE TO RESERVE A FEW MEANT FOR REBUTTAL
SFLFRMENTS THAT'S FINE. ANDREW DWYER: THE DISPUTE BETWEEN THE PARTIES IS
WHETHER OR NOT THE LEGISLATION QUESTION, N.J.A.C. HAS THE EFFECT OF COERCING OR STIFLING
WHAT WOULD OTHERWISE BE PROTECTED SPEECH EITHER UNDER UPD THE LAW OF DISCRIMINATION OR
UNDERSTAND THE PROVISIONS OF THE NEW JERSEY CONSTITUTION AN THE UNITED STATES
CONSTITUTION THAT PROTECT FREEDOM OF EK SPRESHGS AND PROTECT ASSOCIATION NATURAL RIGHTS.
OF PARTICULAR CONCERN FROM OUR PERSPECTIVE IS THE PROVISION IN THE LOG IN
DISCRIMINATION THAT REFLECTS AMENDMENTS THAT WERE MADE IN 1992 AND IN 2018 TO THE STATUTE'S
ANTI REPRISAL PROVISIONS. PRIOR TO 1992, THE LAW FWENS DISCRIMINATION HAD WHAT WAS A
PRETTY STANDARD ANTI REPRISAL PROVISION SIMPLY STATING NO ONE COULD SUFFER RETALIATION
FOR COMPLAINING ABOUT ANYTHING THAT WAS UNLAWFUL UNDER THE ACT. IN 1992, THERE WAS
SIGNIFICANT AMOUNT THAT HAD TWO PARTS TO IT, ONE IS THAT IT WENT I DON'T KNOW THE QUESTION
OF REPRISAL AND SAID THAT IT WAS UNLAWFUL UNDER THE ACT TO COERCE, THREATEN, INTIMIDATE
OR INTERFERE WITH ANYONE'S EXERCISE OF RIGHTS UNDER THE STATUTE, WHICH OBVIOUSLY WOULD
INCLUDE THE RIGHT TO COMPLAIN AND TO TELL OTHERS ABOUT UNLAWFUL DISCRIMINATION OR, IN
THIS CASE, HARASSMENT, AS THIS COURT RECOGNIZES IN NUMEROUS CASES, THE PAT TAG GLEE A
CASE WOULD BE ONE, OBVIOUSLY FOR EXAMPLE. SECONDLY IT ALSO SPECIFICALLY
PROCEED TEBDING ASSOCIATION NATURAL RIGHTS WHICH IS TO SAY YOU HAVE A RIGHT UNDER THE
NEW JERSEY STATUTE ANNOTATED 10:5-12 D AS IN DOG TO SUPPORT OTHER PEOPLE WHO HAVE PROBLEMS
WITH DISCRIMINATION, HARASSMENT IN THE WORKPLACE. THOSE TWO ISSUES ARE PROTECTED
UN THE LAD. IN 2018, AS PART OF THE DIE AN AL LEN EQUAL PAY ACT, THERE WAS
AN ADDITIONAL AMENDMENT TO SUBSECTION D WHICH PROVIDES SPECIFICALLY AN NOT JUST FOR EQUAL
PAY CLAIMS, BUT FOR ANY CLAIMS THAT YOU HAVE THE RIGHT TO CONSULT WITH A LAWYER AND TO
SHARE INFORMATION WITH THE LAWYER. SO THE PROBLEM WITH THIS REGULATION IS
STATUTORILY, IT RUNS AFOUL OF THE LAW AGAINST SKRIMS BECAUSE IT INTERFERES WITH THOSE
RIGHTS. THOSE RIGHTS ARE MIRRORED BY THE RIGHTS UNDER THE NEW JERSEY CONSTITUTION AN
THE FEDERAL CONSTITUTION BOTH FOR FREEDOM OF EXPRESSION AN FOR ASSOCIATION NATURAL RIGHTS.
NOW, THE CRUX OF THIS ISSUE, AS I SAID IS WHETHER OR NOT THIS HAS A COERCIVE
OR STIFLING OR INTERFERING IMPACT AND I SUBMIT TO YOU THAT FOR SEVERAL REASONS, IT DOES.
THE FIRST AN MOST BASIC REASON IS INHERENT IN THE EMPLOYER/EMPLOYEE
RELATIONSHIP. AS WE ARGUED IN OUR MOST RECENT BRIEF THAT WE FILED IN NOVEMBER
OF LAST YEAR, WHICH RECITES THE HOLDING BY THE LAD IN THE STER ROW CYCLE CASE, IT IS
SIMPLY A BASIC RECOGNITION THAT GIVEN THE DEPENDENCY THAT EMPLOYEES HAVE ON THEIR
EMPLOYERS, THEY ARE GOING TO FEEL THAT THEY CANNOT DISREGARD A DIRECTIVE FROM THE EMPLOYER
WHETHER IT'S FRAMED AS A REQUEST OR REQUIREMENT FOR FEAR OF NEGATIVELY IMPACTING THEIR
EMPLOYMENT STATUS. THAT IS PARTICULARLY HEIGHTENED BECAUSE OF SPECIFIC
PROVISIONS IN THIS REGULATION, IN SUBPAR FWRAF D, AGAIN AS IN DOG OF THE REGULATION
SPECIFICALLY SAYS THAT EVERY EMPLOYEE IS REQUIRED TO COOPERATE WITH ANY INVESTIGATION OF
ANY CLAIM OF DISCRIMINATION OR HARASSMENT AN FAILURE TO COOPERATE CAN GIVE RISE TO
DISCIPLINARY ACTION UP TO AND INCLUDING TERMINATION, SO IT IS JUST A MATTER OF COMMON
SENSE THAT WHEN EMPLOYEES ARE TOLD THAT THEY MUST -- THAT THEY ARE ASKED NOT TO DISCLOSE
ANYTHING ABOUT THE INVESTIGATION TO ANYONE IN PERPETUITY, IN COMBINATION WITH THIS FAILURE
TO COOPERATE LANGUAGE IN SUBPARAGRAPH D, EMPLOYEES ARE GOING TO UNDERSTAND THAT IF
THEY DISREGARD THAT REQUEST, THEY COULD BE ACCUSED OF FAILING TO COOPERATE AND THUS BE
SUBJECT TO DISCIPLINE; THAT'S ESPECIALLY SO BECAUSE THE STATE ALSO REQUIRES EVERYBODY
AS PART OF THIS INTERVIEW PROTOCOL TO SIGN A FORM ACKNOWLEDGING THAT THEY HAVE BEEN TOLD
ABOUT THE CONFIDENTIALITY PROVISIONS, THAT THEY'RE AWARE OF THE CONFIDENTIALITY
PROVISIONS. HANDING SOMEONE A FORM LIKE THAT, TELLING THEM WE WANT YOU TO
MAINTAIN STRICT CONFIDENTIALITY, NOT DISCLOSE ANYTHING ABOUT THIS TO ANYONE WITH THE
UNDERSTANDING THAT FAILURE TO COOPERATE CAN GIVE RISE TO DISCIPLINARY ACTION UP AND TO
INCLUDING TERMS IS GOING TO INTERFERE WITH THE EXCISE OF EMPLOYEE RIGHTS.
JUSTICE WAINER APTER: ARE YOU LECHGING THAT THE FORM IS STILL GIVEN AFTER THE REGULATORY
AMENDMENT. ANDREW DWYER: YES, IT'S A DIFFERENT FORM JUSTICE WAINER APTER
APARTMENT, BUT YES. THIS FORM WAS SUBMITTED BY THE STATE TO TODD HINDS FOR THE STATE
COURT SO IT IS PART OF THE RECORD ON FEBRUARY 17TH OF LAST YEAR. AS THE COURT
MAY RAUM, IN LATE 2022, THE PLAINTIFF ASKED FOR AND WAS GRANTED LEAVE TO SUPPLEMENT THE
RECORD IN THIS CASE BECAUSE IT TURNED OUT THAT NOTWITHSTANDING THE REVISIONS TO SUBSECTION
J THAT YOU STILL HAD THE OLD FORM BEING GIVEN OUT SAYING THAT YOU WILL BE PUNISHED IF YOU
VIOLATE LATE THE CONFIDENTIALITY DIRECTIVE. YOU STILL HAD STUFF ON THE WEBSITE AN THE
FREQUENTLY ASKED QUESTIONS PAGE. YOU STILL EVEN HAD THE EXISTING POLICY THAT
WAS USED BY THE TREASURY, ALL OF WHICH SAID THAT CONFIDENTIALITY IS REQUIRED AND BREACH
OF THAT COULD GIVE RISE TO DISCIPLINARY ACTION SO THE STATE IN RESPONSE TO THAT MOTION
TO EXPAND THE RECORD SAID OH, WE'RE GOING TO GO BACK AN FIX ALL THAT STUFF AND THEY REVISED
THE FORM AN SUBMITTED THAT TO THE COURT AS PART OF THE RECORD. YOU DO HAVE THAT FORM
AS PART OF THE RECORD. THE FORM IS STILL GIVEN OUT. EMPLOYEES ARE STILL REQUIRED TO
SIGN IT AS PART OF THE INTERVIEW PROTOCOL, SO AGAIN YOU HAVE AN EMPLOYEE WHO UNDERSTAND
THEY ARE UNDER AN OPEN OBLIGATION TO COOPERATE AND FAILURE TO COOPERATE CAN LEAD TO
DISCIPLINARY PROCEDURES. JUSTICE PATTERSON: YOU'RE NOT LECHG THAT THE FORM
THAT YOU SUBMITTED AS PART OF THE SUPPLEMENT TO THE RECORD IS STILL BEING GIVEN OUT TODAY.
THE REVISED VERSION IS NOW BEING USED? ANDREW DWYER: THAT'S A GREAT QUESTION,
JUSTICE PATTERSON. THEY REVISED THE FORM IN FEBRUARY OF 2023. JUSTICE
PATTERSON: THEY REPRESENT THEY ARE NOW USING THIS NEW VERSION OF THE FORM, DWYER TWOOIR
THERE WAS A SECOND MOTION TO EXPAND THE RECORD WHICH I UNDERSTAND THE COURT DENIED LATER
ON IN 2023, THAT RAISED ISSUES THAT ACTUALLY PEOPLE STILL WERE BEING TOLD THAT IF THEY
VIOLATED THE -- JUSTICE PATTERSON: I'M NOT TALKING ABOUT WHAT PEOPLE ARE
VERBALLY TOLD BUT WHAT FORM IS IN USE NO. 2 INSTEAD OF NO. 1, TWOOIR DWYER SUPPOSEDLY
THAT'S THE FORM THAT IS BEING USED. I WILL SAY ONE THING ABOUT THAT, JUSTICE PATTERSON,
WHICH IS IF YOU LOOK AT WHAT IS GOING ON IN DIFFERENT STATE AGENCIES IT'S NOT UNIFORM.
SO YOU WILL FIND THINGS ON THE INTERNET THAT SEEM TO BE CURRENTLY IN PLACE AT SOME
AGENCIES THAT ARE NOT COMPLETELY CONSISTENT WITH THE REVISED VERSION OF SUBPARAGRAPH J
BUT I AM ASSUMING FOR PURPOSES OF ARGUMENT THAT THEY ARE USING THE NEW FORM THAT SAYS
THIS IS THE CONFIDENTIALITY PROVISION, WE'RE ASKING YOU TO MAINTAIN STRICT
CONFIDENTIALITY, HERE, SIGN THIS ACKNOWLEDGING THAT YOU'VE BEEN TOLD THIS. I
THINK THE PROBLEM IS ALSO EXACERBATED BY THE FACT THAT IF YOU GO LOOK AT THE LANGUAGE
IN N J R, WHEN THEY MADE THE AMENDMENT TO SUBPARAGRAPH J AND THIS IS IN THE RECORD AT
PAGE 63 OF PLAINTIFF'S APPENDIX, ALTHOUGH THIS IS NOT ACTUALLY SAID IN THE REGULATION,
ITSELF, BUT THEY SAY THE INVESTIGATORS ARE EK RESPECTED TO EXPLAIN TO PEOPLE WHY IT IS
VERY IMPORTANT FOR THEM TO MAINTAIN STRICT CONFIDENTIALITY AN THE FAILURE TO MAINTAIN
STRICT CONFIDENTIALITY CAN UNDERMINE THE INTEGRITY OF THE INVESTIGATION.
AGAIN, YOU COMBINE THAT WITH THE FAILURE TO COOPERATE LANGUAGE AN AN EMPLOYEE IS GOING
TO UNDERSTAND OH, I HAVE TO COOPERATE WITH THE INVESTIGATION. IF I DON'T, I COULD BE
SUBJECT TO DISCIPLINE AND THEY'RE TELLING ME IF I DISCLOSE STUFF TO OTHER PEOPLE, ANYTHING
TO OTHER PEOPLE, I COULD BE ESSENTIALLY INTERFERING WITH THE INVESTIGATION.
AGAIN, I THINK IT'S JUST A MATTER OF COMMON SENSE UNDER THOSE CIRCUMSTANCES THAT PEOPLE
ARE GOING TO UNDERSTAND THEY MUST NOT DISCLOSE ANYTHING TO ANY PEOPLE -- ANY PERSONS --
JUSTICE PATTERSON: YOU SEE NO MATERIAL DISTINCTION BETWEEN THE ORIGINAL
VERSION OF THE REGULATION THAT EXISTED WHEN YOUR CASE BEGAN AND THE CURRENT VERSION?
ANDREW DWYER: NO, I WOULDN'T SAY THAT. I WOULD SAY THAT THE CURRENT VERSION
RUNS A FOUD OF THE LAD. OBVIOUSLY THE LANGUAGE IS DIFFERENT, I CAN SEE THAT, ANYBODY
CAN SEE THAT. WHAT IS SIGNIFICANT ABOUT IT, JUSTICE PATTERSON IS THAT THE REVISED
REGULATION, IF YOU WANT TO LOOK AT THAT, IF YOU WANT TO LOOK AT THE REVISED CONFIDENTIALITY
FORM THAT PEOPLE WERE ASKED TO SIGN, IF YOU WANT TO LOOK AT THE REVISED. F A Qs ON THE
WEBSITE, IF YOU WANT TO LOOK AT THE REVISED POLICY FOR THE TREASURY DEPARTMENT THAT
BASICALLY MIMICS THE LANGUAGE IN THE REGULATION ITSELF, NOWHERE DOES IT SAY THAT THE
EMPLOYEES ARE FREE TO DISREGARD THE REQUEST WITHOUT CONSEQUENCE. IT NEVER SAYS THAT
ANYWHERE. JUSTICE PIERRE-LOUIS: WOULD IT BE SUFFICIENT TO YOU IF THAT
LANGUAGE WAS CONCLUDED IN THE REGULATION, ON THE FORM AND OTHER MATERIALS EMPLOYEE TO
STATE, YOU KNOW, THE REQUEST IS BEING MADE THAT THE DETAILS OF INVESTIGATION REMAIN
CONFIDENTIAL, HOWEVER, YOU ARE FREE TO DISREGARD THIS REQUEST, THERE WILL BE NO CONSEQUENCES
FOR YOU DISREGARDING THIS REQUEST. ANDREW DWYER: YES. JUST STIS PIERRE
LOU, I DO THINK THAT WOULD BE BETTER BUT YOU STILL HAVE THE PROBLEM THAT IS IN HERPT IN
THE EMPLOYER, EMPLOYEE RELATIONSHIP WHICH WAS AGAIN RECOGNIZED BY THE LAD IN THE STER
CYCLE CASE, AN AGAIN AS WAS POIPTD OUT THAT'S NOTH NEW, THE UNITED STATES SPRM SAID THAT
BACK TO THE GIS SELL CASE IN 1967, I THINK. THAT IS EE NOT A NEW CONCEPT THAT THERE IS
A COERCIVE ELEMENT TO THAT EVEN IF PEOPLE ARE TOLD, YOU KNOW, DON'T WORRY NOTHING IS GOING
TO HAPPEN. THE PROBLEM FROM MY PERSPECTIVE, JUSTICE IS THAT THE REGULATION
EXACERBATES THIS PROBLEM, THE INTERFERENCE WITH PROTECTED SPEECH BECAUSE OF IT'S INCREDIBLE
BREADTH. IT SAYS THAT YOU CANNOT SAY ANYTHING RELATED TO THE INVESTIGATION TO OTHERS,
WHICH MEANS ANYBODY. AND IN PERP PET IT TUT. IN PERP TUT. THERE IS JUST NO LIMIT TO
THE SCOPE OF WHAT PEOPLE ARE TOLD THEY ARE ASKED TO DO WITH THE EXCEPTION OF THIS WEIRD
LANGUAGE ABOUT A LEGITIMATE BUSINESS CONCERN. I MEAN, THAT JUST LIKE MAKES
NO SENSE FROM THE STANDPOINT OF AN EMPLOYEE. WHAT LEGITIMATE BUSINESS CONCERN?
THAT WOULD BE AN ARGUMENT FOR WHEN THE EMPLOYER COULD BREACH CONFIDENTIALITY,
BUT IT MAKES NO SENSE IN THE CONTEXT OF THE EMPLOYEE. AND AGAIN THE INCLUSION OF THAT
EXCEPTION -- JUSTICE PATTERSON: ONE THING IT WOULD DO, YOU TALKED ABOUT
THIS HAVING AN EFFECT ON DISCLOSURES TO COUNSEL. IT'S PERFECTLY OBVIOUS THAT THAT IS
A LEGITIMATE BUSINESS REASON TO DISCLOSE SOMETHING AND THAT'S FOR YOUR CLIENT TO BE
DISCUSSING SOMETHING ABOUT YOUR CASE WITH YOU SO I THINK THAT'S ONE EXAMPLE WHERE THAT
LANGUAGE WOULD HAVE MEANING. ANDREW DWYER: I THINK THAT MIGHT BE PERFECTLY
OBVIOUS TO YOU, JUSTICE PATTERSON, BECAUSE YOU'RE A LAWYER AND A JUDGE. I DON'T THINK
IT WOULD BE PERFECTLY OBVIOUS TO YOUR AVERAGE LAYPERSON. I THINK YOUR AVERAGE LAYPERSON
IS NOT ACTUALLY GOING TO NECESSARILY UNDERSTAND WHAT THAT MEANS. JUSTICE
PATTERSON: THAT'S SOMETHING COUNSEL CAN ASSURE A PERSON. ANDREW DWYER:
DRAT POINT AND HERE IS THE TRICK, THERE IS NOTHING IN THE CIVIL SERVICE COMMISSION
REGULATIONS EITHER IN THESE PROVISIONS IN 4 A:7-3.1 OR 3.2 OR ANYWHERE ELSE IN THE CIVIL
SERVICE COMMISSION POLICIES THAT SAYS THAT PEOPLE HAVE A RIGHT TO BRING AN ATTORNEY TO
THE INTERVIEW OR TO CONSULT WITH AFRN ATTORNEY. AMONG STATE AGENCIES THERE ARE
A LOT OF VARIATION ON THAT, FOR EXAMPLE, THE JUDICIARY'S POLICIES FOR PROCEDURES FOR
INVESTIGATING DISCRIMINATION OR HARASSMENT SPECIFICALLY SAYS THAT ANYBODY INTERVIEWED
HAS A RIGHT TO HAVE COUNSEL PRESENT AN THE ONLY RESTRICTION OR PROVISO IS THE COUNSEL CAN'T
ACTUALLY ANSWER THE QUESTIONS FOR THE WITNESS. D C R HAS A SLIGHTLY DIFFERENT
POLICY. IT'S NOT IN THE D R R REGULATIONS, THERE IS A ONE PAGE POLICY STATEMENT ABOUT
INTERVIEW PROTOCOL THAT SAYS PEOPLE HAVE NO RIGHTS TO AN ATTORNEY, CITING CASES OF THIS
COURT BUT WILL ALLOW SUBJECT TO THE ATTORNEY NOT INTERFERING WITH THE INTERVIEW.
CHIEF JUSTICE RABNER: YOU POINTED TO SOME VAGUE LANGUAGE, WHY WOULDN'T THAT BE CURED IN
THE SUGGESTIONS IN JUSTICE PIERRE-LOUIS LOU'S QUESTIONS INCLUDED IN THE WARNINGS.
ANDREW DWYER: THE INHERENTLY COERCIVE EFFECT OF THIS THAT DERIVES FROM THE POWER BALANCE
BETWEEN EMPLOYEES AN EMPLOYERS, WHICH AGAIN HAS BEEN RECOGNIZED FOR DECADES SO IF AN EMPLOYER
COMES TO SOMEBODY AND SAYS Z HEY, WE WANT YOU TO COOPERATE WITH THE INVESTIGATION,
NONCOOPERATION COULD RESULT IN DISCIPLINE. WE'VE GOT SOME REALLY IMPORTANT REASONS WHY
YOU NEED TO MAINTAIN STRICT CONFIDENTIALITY AN NOT TELL ANYBODY ANYTHING ABOUT THIS
INVESTIGATION, DON'T WORRY, THOUGH, WE'RE NOT GOING TO PUNISH YOU IF YOU BREACH THAT I
THINK MOST EMPLOYEES ARE GOING TO REACT TO THAT AND SAY OKAY, I'M NOT TAKING ANY CHANCES
WITH MY JOB, MY JOB MATTERS A LOT TO ME I AM GOING TO KEEP MY MOUTH SHUT. I
UNDERSTAND THE STATE ARGUES THAT'S NOT TRUE AN PEOPLE WILL TOTALLY FEEL FREE TO DO WHATEVER
THEY WANT. I THINK THAT'S A FUNDAMENTAL DIS FRAEMENT WE HAVE. L I THINK THE NATURE OF
EMPLOYEE/EMPLOYEE RIRP, RELATIONSHIP MEANS IT IS STILL GOING TO HAVE AN EFFECT. THERE ARE
OTHER WAYS TO DESIGN THIS THAT WOULD NOT INTERFERE WITH PROCEED TEBTD SPEECH.
JUSTICE WAINER APTER: FIRST OF ALL, HOW ARE EMPLOYEES GIVEN DIRECTLY A COPY OF THE
REGULATION. DO THEY ACTUALLY SEE THE LANGUAGE OF SUBSECTION J? THIS DWYER
TWOOIR IT'S NOT IN THE RECORD SO I AM BEING CANDID THERE IS NOTHING IN THE RECORD ONE
WAY ABOUT THAT OR THE OTHER BUT OUR UNDERSTANDING IS NO. JUSTICE WAINER APTER:
TO THE EXTENT THAT THE EMPLOYEE SOMEHOW WOULD GOOGLE WHAT IS THE LAW IN THIS CIRCUMSTANCE
AND WERE TO SEE A COPY OF THE REGULATION, THERE IS STILL THE SENTENCE IN THE REGULATION
THAT EXISTED BOTH IN THE PREAMENDMENT AN POST AMENDMENT LANGUAGE AS FAR AS I CAN TELL
AND THIS IS THE EXACT STA SAME STENS, THE EXTENT PRACTICAL APPROPRIATE UN THE CIRCUMSTANCES,
CONFIDENTIALITY SHALL BE MAINTAINED THROUGHOUT THE INVESTIGATIVE PROCESS; IS THAT CORRECT.
ANDREW DWYER: YES, IT'S STILL THERE AN IT IS TRESING INTERESTING BECAUSE
FOR EXAMPLE, THERE ARE STENS EF REGULATIONS AS YOUR HONOR KNOWS GOVERNING THE WAY THE
DIVISION ON CIVIL RIGHTS CONDUCTS INVESTIGATIONS. L THEY HAVE, AS I ALLUDED TO A MINUTE
AGO THERE IS A ONE PAGE PROTOCOL FOR WITNESS INTERVIEWS AN MANY INSTANCES THAT ADDRESS
CONFIDENTIALITY. THERE IS NOTHING IN THERE, THOUGH, THAT SAYS WHETHER -- FRAMED
AS A REQUEST OR A REQUIREMENT OR ANYTHING ELSE THAT WITNESSES ARE TOLD THEY CAN'T TELL
OTHER PEOPLE THINGS. JUSTICE WAINER APTER: YOU MENTIONED HOW DK R CONDUCTS
INVESTIGATIONS BUT YOU ALSO MENTIONED IN 512 D THE RECENT LANGUAGE THAT WAS INCLUDED TO
MAKE IT CLEAR THAT THERE IS AN AFFIRM MAT TIF RIGHT UNDER THE LAD TO SEEK ADVICE REGARDING
RIGHTS UNDER THE ACT, SHARE RELEVANT INFORMATION WITH LEGAL COUNSEL, SHARE INFORMATION
WITH A GOVERNMENT ENTITY OR FILE A COMPLAINT IN, I THINK IT SAYS, UNDER THIS ACT -- IN
ANY PROCEEDING UNDER THIS ACT. IS THERE SOME SORT OF EXCEPTION IN THE
REGULATION TO ALLOW SOMEONE TO FOR EXAMPLE FILE A COMPLAINT WITH D C R, TALK TO AN INVESTIGATOR
WITH D C R THAT WOULD IN THEORY BREAK CONFIDENTIALITY BECAUSE THAT WOULD BE SOMEONE
TALKING ABOUT THE DISCRIMINATION THAT OCCURRED? IS THERE AN EXCEPTION IN
THE REGULATION THAT WOULD ALLOW SOMEONE TO SPEAK TO AN ATTORNEY, SPEAK TO D C R, SPEAK
TO THE BLANK, ETC.? ANDREW DWYER: I WOULD SAY NO. THERE IS DEFINITELY
NOTHING ABOUT SPEAKING TO AN ATTORNEY. THERE IS AN IN ACCEPT PID PART OF THE CIVIL SERVICE.
IT APPRISE ES PEOPLE OF THE FACT THAT THEY ARE NOT LIMB LIMITED TO MAKING AN INTERNAL
COMPLAINT. THEY NOTE YOU MAY FILE ALL TYPES OF CHARGES, EVEN CRIMINAL. IN THIS CASE
THE PLAINTIFF ALLEGES SHE WAS ASSAULTED. SO THE REGULATION APPRISE ES PEOPLE OF THOSE
OTHER OPTIONS, BUT IN THE CONFIDENTIALITY SECTION, THERE IS NOTHING TASH DASH THERE IS
NO CARVE OUT FOR ANY OF THAT OTHER STUFF AN THE FACT THAT IT IS, AT BEST, UNCLEAR UN THE
CIVIL SERVICE COMMISSION REGULATIONS AN PROCEDURES WHETHER SOMEBODY WOULD HAVE A
RIGHT TO HAVE AN ATTORNEY PRESENT AT THE INTERVIEW MAKES THIS MORE PROBLEM MAT TECH BECAUSE
TO THE EXTENT THAT A MORE THOUGHTFUL PERSON -- I SUBMIT MOST PEOPLE ARE GOING TO SAY OH,
YOU DON'T WANT ME TO SAY ANYTHING, I WON'T SAY ANYTHING AND THAT'S IT BUT TO THE EXTENT
THERE IS A THOUGHTFUL PERSON WHO WANTS TO SAY, HEY, WHAT ARE MY RIGHTS HERE, BE THEY HAVE
TO ASK THEMSELVES, IF I CONSULT WITH AN ATTORNEY AM I VIOLATE THEIR REQUEST NOT TO TELL
OTHERS ABOUT THE INVESTIGATION? AGAIN, I KNOW THIS IS A FACIAL CHALLENGE
AND A NOT AS APPLIED CHALLENGE, BUT TO THE CERTAIN EXTENT AS THE QUESTIONS FROM THE
BENCH HAVE INDICATED, HOW THIS IS CARRIED OUT IN PRACTICE DOES KIND OF MATTER AN IN THIS
CASE WHEN THE PLAINTIFF WAS IN THE INTERVIEW ROOM AND WANTED TO CALL HER HUSBAND, WHO IS
AN ATTORNEY, THEY QUOTED TO HER, I KNOW THEY PROBABLY WILL DISPUTE HER, THEY GOT REALLY
MAD AT HER AN YES, MA'AMED AT HER AND, YOU KNOW, THAT IS THE PROBLEM WE HAVE HERE THAT
THE AVERAGE PERSON IS GOING TO BE IN A SITUATION WHERE EXACTLY HOW FAR CAN I GO AND IT'S
NOT CLEAR. CHIEF JUSTICE RABNER: MR. DWYER, THE COURT IN R M SAID THAT AN
ETHICS COMMIT COULD RECOMMEND THAT A GRIEVANT MAINTAIN CONFIDENTIALITY DURING THE
INVESTIGATIVE PHASE, WHAT DOES THAT IMPORT HAVE IN THE CASE BEFORE US. ANDREW
DWYER: THAT'S A GREAT QUESTION, CHIEF JUSTICE RABNER AND IT RELATES TO WHAT I WAS ALLUDING
TO A MINUTE AGO WHICH IS THERE ARE OTHER WAYS TO DO THIS THAT ARE MORE APPROPRIATELY SPEECH
PROTECTED. I WOULD HAVE NO PROBLEM IF A REGULATION SAID ON A CASE-BY-CASE
BASIS AN INVESTIGATOR IF IT FINDS THIS TO BE THE CASE MAY, FOR EXAMPLE, TELL A WITNESS,
THAT THEY MAY NOT TALK TO ANOTHER PERSON WHO HASN'T BEEN INTERVIEWED YET TO AVOID
INCLUSION, OR IF THERE IS A BASIS FOR CONCERN THAT A PERSON BEING INTERVIEWED, LET'S SAY
THE PERSON WHO HAS BEEN USE ACCUSED, MIGHT TAKE RETALIATORY AK, THEY COULD SAY TO THE
PERSON DURING THE INTERVIEW, WE DO NOT WANT YOU TO GO TALK TO THE PERSON WHO MADE THIS
COMPLAINT. WE DON'T WANT YOU TO BE I OBJECT TIM DATING THAT PERSON. IF THERE IS CONCERN
ABOUT SOMEBODY DESTROYING EVIDENCE, THEY MIGHT SAY, LISTEN, DON'T GO TALK TO THE IT PERSON.
WE DON'T WANT SOMETHING TO HAPPEN TO YOUR E-MAILS. JUSTICE FASCIALE: WE
CAN'T REWRITE THE REGULATION SO YOU WANT US TO INVALIDATE IT AN IN PLACE I THINK YOU WERE
SUGGESTING IN YOUR SUPPLEMENTAL BRIEF IMPOSE A STER ROW CYCLE BALANCING TEST IS THAT
CORRECT. ANDREW DWYER: THAT IS CORRECT. JUSTICE FASCIALE:
WHAT WOULD THE FRAMEWORK BE? EXACTLY HOW WOULD THAT TEST BE ARTICULATED
AN IMPLEMENTED? ANDREW DWYER: JUSTICE FASCIALE YOU'RE RIGHT THAT THE RE
MEDY WE'RE SEEKING IS SIMPLY TO STRIKE THIS LANGUAGE OR DECLARE UN ENCLOSE FORCIBLE THE
LANGUAGE THAT IS THERE. YOU'RE RIGHT THE COURT CAN'T REWRITE THE REGULATION ALTHOUGH
I DON'T THINK IT WOULD BE TERRIBLE IF THE COURT PROVIDED SOME GUIDANCE TO THE CIVIL SERVICE
COMMISSION WHAT WOULD PASS MUSTER IN THE FUTURE ESPECIALLY SINCE THEY HAVE BEEN FUSSING
WITH THIS REGULATION FOR OVER 20 YEARS. YOU ARE RECOLLECT. WE DO BELIEVE
THE STER ROW CYCLE APPROACH SHOULD BE FOLLOWED WHICH SAYS BH LOOKING AT A FASH SHAL
CHALLENGE, IT WAS A FACIAL CHALLENGE TO AN EMPLOYER'S RULE AN THE COURT DROPPED A
FOOTNOTE TO EMPHASIZE IT WAS ABOUT A FACIAL CHALLENGE NOT ABOUT HOW SOMETHING GOT APPLIED
IN AN INDIVIDUAL CASE AN WHAT THEY SAID IS YOU LOOK AT IT ON A CASE-BY-CASE BASIS AN YOU
RECOGNIZE HOW IT WOULD LOOK FROM THE PERCENT RESPECT I OF AN EMPLOYEE WHO IS A DWAGS
OF ECONOMIC DEPENDENCE ON THE EMPLOYER. IF, AS A RESULT OF THAT, THE RULE OR
IN THIS CASE REGULATION ON ITS FACE WOULD INTERFERE WITH ASSOCIATION NATURAL RIGHTS,
PROTECTED SPEECH UNDER EITHER THE CONSTITUTIONS OR IF LAD, THEN IT SHIFTS TO THE EMPLOYER
TO SAY, YOU KNOW, WHAT IS THE SUBSTANTIAL INTEREST THAT YOU ARE TRYING TO PURSUE BY THE
MOST NARROWLY TAILORED MEANS POSSIBLE. I THINK THAT THE EMPLOYER COULD WIN
THAT TEST UNDER THE TYPE OF REGULATION THAT I'M SUGGESTING. THE PROBLEM
WITH THIS REGULATION IS IT IS JUST A VERY BLUNT TRUMENT WHERE IT STRAYS FAR A FIELD FROM
WHAT WOULD BE A LEGITIMATE CONCERN SUCH AS COLLUSION, FABRICATION OF EVIDENCE,
DESTROYING EVIDENCE, THREATENING WITNESSES, THINGS LIKE THAT. WE'RE ALL LAWYERS
AN WE ALL RECOGNIZE THAT DURING A JURY TRIAL THERE IS NOTHING WEIRD ABOUT A COURT
ISSUINGING A SEQUESTRATION ORDER; THAT'S NOT THE PERSON CAN'T TALK ABOUT ANYTHING EVER,
BUT YOU DON'T WANT ONE WITNESS TALKING TO ANOTHER TO LINE UP THEIR TESTIMONY. OKAY, THAT
SEEMS REASONABLE. I AGREE WI, YOU CAN'T REWRITE THE REGULATION, BUT I THINK THE COURT
CAN SUGGEST WAYS IN WHICH THIS COULD BE A MORE REASONABLY TAILORED REGS.
JUSTICE PATTERSON: THE BALANCING TEST, HOW WOULD THAT WORK IN PRACTICE? TAKE
YOUR CASE, YOUR CLIENT MAKES THE COMPLAINT, PEOPLE ARE BEING INTERVIEWED, WHO IS DOING
THE BALANCING TEST AN AT WHAT STAGE. TWOOIR DWYER I APOLOGIZE, JUSTICE PATTERSON, IF
I WAS MAYBE MIXING APPLES AN ORANGES, I AM TALKING ABOUT THE BALANCING TEST FOR VAELG
THE FACIAL -- JUSTICE PATTERSON: YOU'RE NOT TALKING ABOUT A BALANCING TEST
THAT APPLIES CASE BY CASE. ANDREW DWYER: I AM SAYING REGULATIONS ON FACIAL
CHALLENGES. I AM NOT SAYING EVERY CONFIDENTIAL IS INHERENTLY INVALID. I AM SAYING THIS
ONE IS FACIALLY INVALID USING THE STER ROW CYCLE BALANCING TEST BECAUSE IT CLEARLY INTERFERES
WITH THE PROTECTED SPEECH AN ASSOCIATION NATURAL RIGHTS AN THIS IS NOT A REASONABLY TAILOR
REGULATION TO OBTAIN SUBSTANTIAL INTEREST. ON TA PRACTICAL SIDE, THE INVESTIGATOR
WOULD HAVE TO SAY, OKAY, I AM CONCERNED ABOUT THESE TWO WITNESSES TRYING TO MATCH UP THEIR
TESTIMONY SO I'M NOT GOING TO TELL THEM THEY CAN'T TALK TO ANYBODY ABOUT ANYTHING, BUT
I AM GOING TO TELL THEM UNTIL I'VE INTERVIEWED EVERYBODY, DON'T TALK TO EACH OTHER PLEASE.
JUSTICE PIERRE-LOUIS: THAT WOULD BE -- IN THAT SCENARIO THAT WOULD BE A
REQUEST NOT TO SPEAK TO ANYONE, I MEAN,S YOU KNOW, UNTIL THE INVESTIGATION IS CONCLUDED
SO IT WOULDN'T BE UNLIKE WHAT WE ALREADY HAVE IF IN MANY CASES, I THINK IN MOST
INVESTIGATIONS, THE INVESTIGATOR DOESN'T WANT WITNESSES TALKING TO EACH OFFICER,
INCLUDING... IT SEEMS LIKE PRACTICALLY THAT WOULD BE A REQUEST TO
WITNESSES GENERALLY NOT TO TALK TO EACH OTHER IN MOST INVESTIGATIONS. ANDREW
DWYER: WELL, I THINK IT'S A FAR CRY FROM WHAT WE HAVE HERE WHICH IS TO NOT TALK TO ANYBODY.
JUSTICE WAINER APTER: IT WOULD ALLOW SOMEONE TO TALK TO AN ATTORNEY TWOOIR
TWOOIR ABSOLUTELY. JUSTICE WAINER APTER: OR TO BRING A COMPLAINT WITH
DIFFERENT AGENCIES. IT WOULD JUST SAY DON'T SPEAK TO ANY OTHER WITNESS UNTIL THAT WITNESS
HAS BEEN INTERVIEWED AND PRESUMABLY THERE WOULD BE PERHAPS A WITNESS OF WITNESSES SO THE
PERSON WOULD KNOW WHO THEY COULD OR COULD NOT SPEAK TO? ANDREW DWYER:
EXACTLY, JUSTICE WAYNE; THAT'S CORRECT. THE COURT: I HAVE A DIFFICULT TIME
IMAGINING IN PRACTICE AN AN AGENCY LEGITIMATELY CONCERNED ABOUT CONFIDENTIALITY HANDING
OVER A LIST OF WITNESSES TO A PERSON. ANDREW DWYER: I DON'T KNOW ABOUT HANDING
OVER A LIST. I AM SAYING PRESUMABLY THE INVESTIGATOR KNOWS WHO THE OTHER WITNESSES
ARE AND COULD SAY I DON'T WANT YOU TO TALK TO SO AND SO. JUSTICE PATTERSON:
ISN'T THAT A GREAT WAY TO GET THEM TO TALK TO THE PERSON WITHIN MINUTES OF THE ENDING
OF THE INTERVIEW. CHIEF JUSTICE RABNER: YOU ASK US TO FOCUS ON THE PRACTICAL
IMPACTS OF THIS CASE BUT THAT STRIKES ME AS IMPRACTICAL KAL. THERE ARE SEVEN
PEOPLE I'M ASKING YOU NOT TO SPEAK WITH, DOES THAT SOUND LIKE A SENSIBLE WAY TO CONDUCT
AN INVESTIGATION CHLTH TWOOIR DWYER YES. JUSTICE PIERRE-LOUIS: HOW WOULD
WITNESSES KNOW WHEN OTHERS HAVE BEEN INTERVIEWED. THERE WON'T BE LIKE A LIST ON A BOARD
APPRISING WHEN EVERYONE HAS BEEN INTERVIEWED AND WHEN THEY ARE CONCLUDED. TWOOIR DWYER
THE INVESTIGATOR SIMPLY SAYS TO THE DWOOIFR DWOOIFR THE INVESTIGATE. ANDREW
DWYER: THE INVESTIGATOR SAYS TO THE PERSON BEING INTERVIEWED WE'RE CONDUCTING SOME INTERVIEWS
THE OTHER PEOPLE, WE WILL BE DONE WITH THE INTERVIEWS AT THE END OF THE WEEK AND WE WILL
LET YOU KNOW WHEN WE'RE DONE. THE PROBLEM IS THE IMPRACTICAL KALT ISSUE IS
PRESENT UN THE EXISTING REGULAR CHIEF JUSTICE RABNER. THE COURT: I WAS
THAN TALKING ABOUT THE EXISTING REGULATION. I WAS TALKING ABOUT YOUR PROPOSED GUIDANCE
WHICH I AM STRUGGLING WITH. ANDREW DWYER: I THINK THAT'S MY ANSWER. I
THINK IT'S NOT UNREASONABLE TO HAVE A REGULATION THAT SAYS ON A CASE-BY-CASE BASIS IN
ORDER TO PROCEED VENT DESTRUCTION OF EVIDENCE AND INTERVIEWING OF WITNESSES AND THE LIKE,
THEY MAY ASK PEOPLE BEING INTERVIEWED NOT TO DISCLOSE SPECIFIC INFORMATION TO SPECIFIC
INDIVIDUALS FOR A SPECIFIC LIMITED PERIOD OF TIME. JUSTICE WAINER APTER:
IN YOUR BRIEF, IT SAYS NEW JERSEY IS THE ONLY STATE IN THE COUNTRY THAT HAS ENACTED A
SPECIFIC REGULATION FIRST REQUIRING AN NOW REQUESTING CONFIDENTIALITY IN ALL
DISCRIMINATION AN HARASSMENT INVESTIGATIONS INITIATED BY PUBLIC EMPLOYEES.
HOW DO OTHER STATES HANDLE THIS? I ASSUME THAT OTHER STATE GOVERNMENTS, FOR
EXAMPLE, ALSO HAVE INTERNAL PROCESSES WHERE SOME HAD ONE CAN IF THEY ARE A PUBLIC EMPLOYEE
RAISE A QUESTION OR RAISE AN ALLEGATION OF DISCRIMINATION OR HARASSMENT AN IF OTHER
STATE GOVERNMENTS DO NOT HAVE SIMILAR POLICIES, DO THEY HAVE SOMETHING MORE TAILORED ALONG
THE LINES OF WHAT YOU ARE REQUESTING? DO THEY HAVE GENERAL GUIDELINES?
IS THERE MORE WITNESS COLLUSION IN OTHER STATES? HOW DOES THIS
WORK IN 49 OTHER STATES? ANDREW DWYER: THAT IS EEGS THE PROBLEM. IN 49
OTHER STATES THERE IS A LOT OF VARIATION. THE SHORT ANSWER IS THE VAST MAJORITY OF CASES
LIKE THE REGULATIONS PROMULGATED FOR HOW D C R CONDUCTS ITS INVESTIGATIONS, THERE IS GENERAL
LANGUAGE ABOUT WE'RE GOING TO TRY TO KEEP THE SUBSTANCE, CONTENT, RESULT OF THE
INVESTIGATION CONFIDENTIAL AS BEST AS WE CAN; THAT'S AN OBLIGATION ON THE EMPLOYER, ON
THE STATE, BUT IT DOESN'T SAY ANYTHING ABOUT TELLING WITNESSES WHAT THEY CAN OR CANNOT
DO; THAT'S WHAT MAKES THIS REGULATION SORT OF UNUSUAL. IT IS THAT IT IS TELLING WITNESSES
WHAT THEY CAN OR CANNOT SAY TO OTHER PEOPLE. JUSTICE PATTERSON: BUT DOESN'T
IT FOLLOW LOGICALLY THAT IF THE AGENCY IS MAKING THE REPRESENTATION THAT WE WILL DO EVERYTHING
WE CAN TO KEEP THIS CONFIDENTIAL OR WORDS TO THAT EFFECT, PART OF THAT IS INSTRUCTING
PEOPLE WHO ARE AWARE OF PARTS OF THE INVESTIGATE, AS PART OF IT, INCLUDING WITNESSES THAT
IT'S SUPPOSED TO BE KEPT CONFIDENT RNL. NERD IS WHAT YOU'RE COMPLAINING ABOUT
IN TERMS OF REGULATIONS TEXT SIMPLY BEING HANDLED VERBALLY BY OTHER STATES?
ANDREW DWYER: SO MAYBE. L I AM NOT IN A POSITION TO KNOW THE ANSWER TO THAT QUESTION
JUSTICE PATTERSON. I THINK THAT'S THE WHOLE POINT THAT THIS IS A FACIAL CHALLENGE SO
IF YOU DO HAVE A STATE OUT THERE SOMEWHERE WHERE THERE IS AN INVESTIGATOR SOMEWHERE WHO
THREATENS A WITNESS OR PRESSURES A WITNESS NOT TO TALK TO OTHERS AN THAT MAY RUN AFOUL
OF EITHER STATUTORY RIGHTS OR CONSTITUTIONAL RIGHTS IN THAT STATE THE PERSON IS GOING
TO ASK BY CHALLENGE, THEY CAN SAY THE STATE IS HANDLING THIS INVESTIGATION THAT INTERFERED
WITH MY RIGHTS. WE'RE IN M A DIFFERENT SITUATION, THIS IS A FACIAL CHALLENGE BASED
ON THE LANGUAGE AND THE REGULATION AN THAT'S WHAT MAKES THE SITUATION UNIQUE IS WE HAVE
NOT FOUND A REGULATION THAT IMPOSES LIMITS ON WHAT WITNESSES CAN SAY TO OTHERS.
JUSTICE WAINER APTER: ISN'T THERE A BIG DIFFERENCE, ONE OF THE THINGS THAT THE STATE
RAISES IN ITS BRIEF IS THAT IN ORDER TO MINIMIZE DISCRIMINATION AN HARASSMENT AN IN ORDER
TO ENCOURAGE REPORTING THERE HAS TO BE CONFIDENTIALITY, WUT IN THAT CONTEXT ISN'T
THERE A BIG DIFFERENCE BETWEEN SAYING THAT A STATE AGENCY SAYS THAT IT WILL KEEP THE INVESTIGATE
CONFIDENTIAL, MEANING, IT WON'T GO ON TV AN SAY SO AN SO ALLEGED THAT THIS OTHER PERSON
DISCRIMINATED AGAINST THEM OR HARASSED THEM VERSUS TELLING THE COMPLAINING WITNESS THAT
HE OR SHE MAY NOT SPEAK TO AN ATTORNEY, MAY NOT FILE WITH AN OUTSIDE AGENCY OR TELLING
THE COMPLAINING WITNESS, YOU KNOW, IT'S GENERAL IN ITS VERY IMPORTANT THAT YOU KEEP THIS
CONFIDENTIAL, WITHOUT SAYING BUT WE DON'T MEAN YOU CAN'T CONSULT WITH AN ATTORNEY, BUT
WE DON'T MEAN YOU CAN'T FILE A DISCRIMINATION COMPLAINT WITH AN OUTSIDE AGENCY.
I AM STRUGGLING TO UNDERSTAND HOW BOTH OF THOSE ARE BEING PUT INTO AN OVERALL CONCEPT
OF CONFIDENTIALITY WHEN THEY SEEM SO DIFFERENT DWYER DWIER I COMPLETELY AGREE WITH YOU,
JUSTICE WAINER APTER. I THINK THAT IS ONE OF THE BIG PROBLEMS WITH THE STATE'S ARGUMENT
IN THIS CASE. PLAINTIFF HAS NEVER CHALLENGED THE FIRST PART OF SUBSECTION
J. L IN FACT, IN THE TRIAL COURT, BEFORE JUDGE SUS WINE YOU HAVE THAT ARGUMENT, PLAINTIFF'S
COUNSEL WAS QUESTIONED VERY CLOSELY WHAT IS IT EXACTLY YOU'RE OBJECTING TO AND PLAINTIFF
'S COUNSEL MADE IT CLEAR WE'RE NOT OBJECTING TO THE PROVISIONS IN SUBSECTION J THAT SAYS
THAT THE STATE, THE EMPLOYER WILL DO ITS BEST TO MAINTAIN CONFIDENTIALITY, YES THAT'S
A GOOD THING IT WILL ENCOURAGE PEOPLE TO COME FORWARD. WHAT WE'RE OBJECTING TO IS THE
LANGUAGE THAT INSTRUCTS THE COMPLAINANT OR OTHER WITNESSES NOT TO TALK. JUSTICE
PIERRE-LOUIS: STILL, GOING BACK TO YOUR SUGGESTION AND YOUR GUIDANCE WITH REGARD TO
THE INVESTIGATOR TELLING WITNESSES NOT TO TALK TO OTHER WITNESSES, PART OF WHAT I AM STRUGGLING
WITH THAT IS WITH REGARD TO THE STATE'S REQUIREMENT TO KEEP THE INVESTIGATION
CONFIDENTIAL. I AM HAVING TROUBLE IMAGINING A SCENARIO WHERE THE INVESTIGATION
IS TAKING PLACE AN THE INVESTIGATOR IS LETTING WITNESSES KNOW EVERY SINGLE PERSON THEY ARE
GOING TO TALK TO OR HAVE TALKED TO IN ORDER TO MAINTAIN SOME SORT OF CONFIDENTIALITY.
DO YOU KNOW WHAT I AM SAYING? OOSHLY IN AN INVESTIGATION IT'S
NOT THE CASE WHERE AN INVESTIGATOR WILL SAY I'M TALKING TO THIS PERSON AN I'M TALKING
TO THAT PERSON AN I'VE TALKED TO THESE PEOPLE AND THIS IS WHAT THEY'VE TOLD ME BECAUSE
THEY'RE SUPPOSED TO MAINTAIN CONFIDENTIALITY AN I THINK THAT'S WHY I AM HAVING TROUBLE
AND PERHAPS OTHER MEMBERS FS COURT ARE HAVING TROUBLE UNDERSTANDING IN REALITY, IN
PRACTICAL INVESTIGATIONS HOW AND WHY THAT WOULD HAPPEN AND HOW THAT WOULDN'T VIOLATE THE
STATE'S, YOU KNOW, OBLIGATION TO MAINTAIN CONFIDENTIALITY OF THESE INVESTIGATIONS
BECAUSE, I AM SURE THERE ARE INSTANCES WHERE DOZENS OF PEOPLE ARE INTERVIEWED AND THERE
ARE SOME EMPLOYEES WHO DON'T WANT ANYONE TO KNOW THAT THEY HAVE BEEN INTERVIEWED AND WITH
THAT CONFIDENTIALITY THAT MIGHT BE THE CASE THAT THEY ARE NEVER PUT OUT THERE AS SOMEBODY
WHO WAS INTERVIEWED OR GAVE SOME INFORMATION WHETHER HELPFUL OR NOT TO THE INVESTIGATION.
DO YOU UNDERSTAND WHAT I AM SAYING? WITH REGARD TO YOUR GUIDANCE
TO TELL WITNESSES HERE ARE ALL THE PEOPLE I'M TALKING TO ON WHAT DAYS, DON'T TALK TO THEM,
PLEASE DON'T TALK TO THEM UNTIL AFTER I'VE SPOKEN TO THEM, TWOOIR. ANDREW DWYER:
I THINK I UNDERSTAND WHAT YOU'RE SAYING JUSTICE PIERRE-LOUIS. WHAT I WOULD SAY IS THE
LEGISLATION THAT IS DRAFTED NOW, IF WE FORGET ABOUT THE LANGUAGE AT THE END OF SECTION
J CLEARLY PROVIDES AN OUT, IF YOU WILL FOR THE STATE TO DISCLOSE INFORMATION IF IT THINKS
IT'S NECESSARY AN IT SORT OF INTRINSIC IN THE NATURE OF THE INVESTIGATION, IF THEY GO,
FOR EXAMPLE AND TALK TO THE PERSON WHO IS ACCUSED OF ENGAGING IN SEXUAL HARASSMENT, THE
PERSON IS GOING TO UNDERSTAND WHERE THE AK SAS IS COMING FROM, THEY ARE NOT GOING TO
SAY HAVE YOU EVER EVEN GAINED IN SEXUAL HARASSMENT THEY'RE GOING TO TALK ABOUT SPECIFIC
INSTANCES ALLEGED. JUSTICE PIERRE-LOUIS: ABSOLUTELY, BUT A LOT OF
THEEGS INVESTIGATIONS INVOLVE INTERVIEWS WITH MANY, MANY WITNESSES ASIDE FROM JUST THE
ACCUSE SER AND THE ACCUSED. THAT'S THE SECOND THING I WAS GOING TO SAY WHICH IS,
I DON'T BELIEVE WHAT I AM SUGGESTING IS AN INVESTIGATOR SHOULD SAY TO EVERYBODY THEY
INTERVIEW DON'T TALK TO ANYBODY IN THE OFFICE UNTIL MY INVESTIGATION IS COMPLETE.
WHAT I AM SUGGESTING IS THERE MAY BE CIRCUMSTANCES WHERE LET'S SAY SOMEBODY SAYS
THE ACCUSED DID X, Y, Z TO ME AND THE INVESTIGATOR SAYS WHO WITNESSED THAT OTHER THAN YOU
AND THEY SAY, OH, MY CUBICLE MEAT, JAN DOE WITNESSED IT, SHE WAS RIGHT THERE.
OKAY, WE'RE GOING TO TALK TO JAN DOE AN WE WOULD APPRECIATE IF YOU DO NOT COORDINATE TESTIMONY
WITH JAN DOE BY TELLING HER WHAT YOU TOLD US. LET US GET A FRESH UNDERSTANDING FROM JAN
DOE WHAT SHE WITNESSED HAPPENING. JUSTICE PATTERSON: IS THAT A GOOD
INVESTIGATIVE TECHNIQUE TO SAY DON'T COORDINATE WITH JAN AND GET YOUR TESTIMONY CONSISTENT,
DOESN'T THAT SUGGEST AN IDEA THAT MAY NOT HAVE BEEN IN THE PERSON'S MIND?
ANDREW DWYER: I DON'T THINK YOU HAVE TO SAY DON'T COORDINATE WITH JAN. I THINK YOU SAY
WOOR EE GOING TO TALK WITH JAN AND SCHEDULE THAT WEEK AND WE WOULD LIKE YOU TO NOT TALK
ABOUT JAN ABOUT THE SUBSTANCE OF THIS INTERVIEW WE JUST HAD. JUSTICE WAINER
APTER: WHAT WOULD BE THE PROBLEM WITH SOMETHING BROADER THAT YOU DON'T SUPPORT, SOMETHING,
FOR EXAMPLE THAT SAID WE ANTICIPATE THAT THIS INVESTIGATION IS GOING TO TAKE SIX WEEKS.
WE ANTICIPATE WE'RE GOING TO INTERVIEW A NUMBER OF THE EMPLOYEES IN YOUR UNIT. WE DON'T
WANT YOU TO SPEAK TO ANYONE IN YOUR UNIT ABOUT THESE ALLEGATIONS FOR THE NEXT SIX WEEKS
WE'LL LET YOU KNOW AS SOON AS THE INVESTIGATION IS COMPLETE? WHY WOULD THAT
BE A PROBLEM? THE PERSON WOULD STILL BE ABLE TO CONSULT WITH A LAWYER AND
WOULD STILL UNDERSTAND THEY COULD FILE A COMPLAINT WITH AN OUTSIDE AGENCY.
IT SEEMS THAT THE TYPE OF SPEECH YOU ARE ALLEGING IS IMPORTANT TO NOT CHILL WOULD NOT CHILL
UNDER THOSE CIRCUMSTANCES, TWOOIR DWYER I THINK THAT IS FOR THE MOST PART TRUE. THE PART
I WOO TAKE SOME ISSUE WITH, JUSTICE WAINER APTER IS PART OF THIS IS THAT WHEN SEXUAL LAR
RAS MENT CURSE IN THE WORKPLACE, IT IS FREQUENTLY THE CASE THAT THE HARASSER IS A REPEAT
OFFENDER AND THERE MAY BE OTHER PEOPLE IN THE OFFICE WHO WERE SUBJECTED TO HARASSMENT
ON OTHER OCCASIONS THAT THE PLAINTIFF DIDN'T EVEN KNOW ABOUT SO WHEN YOU SAY DON'T TALK
TO ANYBODY IN THE OFFICE, PERIOD, I THINK THAT INTERFERES WITH THOSE ASSOCIATION NATURAL
RIGHTS WHICH ARE SPECIFICALLY PROTECTED NOT ONLY BY THE NEW JERSEY AN FEDERAL CONSTITUTION
BUT ALSO SPECIFICALLY BY THE LAD IN 10:5-12 D WHERE IT WAS SPECIFICALLY AMENDED TO ALLOW
EMPLOYEES THE RIGHT TO SUPPORT EACH OTHER IN THEIR ATTEMPTS TO COMBAT DISCRIMINATION IN
THE WORKPLACE SO THAT'S MY POINT WITH THAT. JUSTICE WAINER APTER: WHAT
SPECIFICALLY UNDER 10:# 5-12 D ARE YOU REFERRING TO. I DON'T SEE ANYTHING
THAT SAYS A GENERAL FREEDOM OCCURRING THE PEND TENSE SEE OF AN INVESTIGATION WHEN YOU'RE
ASKED NOT TO SPEAK TO ANYONE IN YOUR SECTION FOR THE NEXT SIX WEEKS ABOUT THE ALLEGATIONS
OF SKRIMS THAT THAT WOULD IN ANY WAY BE INCONSISTENT WITH 12 D. ANDREW
DWYER: WHAT I AM REFERRING TO IS THAT IT PROTECTS THE RIGHT TO AID OR ENCOURAGE ANY OTHER
PERSON IN THE EXERCISE OR ENJOYMENT OF ANY RIGHT GRANTED OR PROTECTED BY THIS ACT, THE
FINAL LINE OF SUBPARAGRAPH D IN THIS PROVISION IN THE LAD. I BELIEVE THERE IS
A STATUTORY RIGHT FOR EMPLOYEES TO DO THAT AND I'M CONCERNED ABOUT SOMETHING THAT IS SO
BROAD THAT BASICALLY SAYS, WHILE THE INVESTIGATION IS HAPPENING YOU CAN'T TALK TO
OTHER PEOPLE IN THE OFFICE AT ALL EVEN THOUGH THERE MAY BE OTHER PEOPLE IN THE OFFICE WHO
HAVE HAD SIMILAR EXPERIENCES. I THINK THAT THE EXPERIENCE THAT WE HAVE HAD
IN DEALING WITH SEXUAL HARASSMENT, YOU KNOW, THE WHOLE LEGAL CONCEPT OF SEXUAL HARASSMENT
WAS DEVELOPED IN 1970 AN YET THE PROBLEM DOESN'T SEEM TO JUST BE GOING AWAY. I THINK
THE PROBLEM IS I DON'T BELIEVE SECRECY IS THE BEST WAY TO COMBAT IT. I DON'T THINK IT IS
THE BEST WAY TO INSPIRE CONFIDENCE IN THE INVESTIGATORY PROCESS. I BELIEVE
TRANSPARENCY IS THE BEST WAY TO COMBAT IT. THE COURT: ARE THERE OTHER POINTS
YOU WOULD LIKE TO RAISE THIS MORNING? TWOOIR DWYER I DON'T THINK SO CHIEF JUSTICE RABNER.
LET ME CHECK ONE OTHER THING SFLFRNLTS OTHER QUESTIONS, ANYONE? ANDREW
DWYER: NO, AS I SAID IF I COULD HAVE A COUPLE MINUTES FOR REBUTTAL, THANK YOU.
THE COURT: MS. MURRAY. JULIE A. MURRAY: GOOD MORNING, YOUR HONORS.
THIS CASE INVOLVES BALANCING SOMETIMES COMPETING INTERESTS, THE INTERESTS OF EMPLOYEES
IN TALKING ABOUT WHAT IS GOING ON IN THEIR WORKPLACE, THE INTERESTS OF EMPLOYERS IN
MAINTAINING NECESSARY OPERATIONS AND THE INTERESTS OF THIRD PARTIES, INCLUDING THOSE WHO HAVE
BEEN ACCUSED OF WRONGDOING WHOSE PARTICIPATION IN INTERNAL INVESTIGATIONS IS CRITICAL
TO ROOTING OUT EMPLOYMENT JIMGS. THE AMERICAN CIVIL LIBERTIES UNION RECOGNIZES
THAT BALANCING THE SOMETIMES COMPETING INTERESTS CAN PRESENT HARD QUESTIONS. AS AN
ORGANIZATION, WE SUPPORT BOTH FREE SPEECH AND THE VIGOROUS PROTECTION OF CIVIL RIGHTS IN
THE WORKPLACE. WE WOULD SUBMIT, HOWEVER, THAT THE RESOLUTION OF THIS CASE,
THE CLAIMS IN THIS CASE IS MUCH MORE STRAIGHTFORWARD. IN NEW JERSEY'S
BROAD AND CATEGORICAL CONFIDENTIAL POLICY IS UNCONSTITUTIONAL AND SHOULD BE INVALIDATED.
I WOULD LIKE TO ADDRESS THREE KEY POINTS IN MY REMARKS THIS MORNING AND HOPE
TO PICK UP ON SOME OF THE QUESTIONS THAT YOU HAD OF MY COLLEAGUE EARLIER. FIRST,
IF THE COURT REACHES THE CONSTITUTIONAL CLAIM IN THIS CASE, IT SHOULD HOLD THAT THE N
EW JERSEY CONSTITUTION SWEEPS MORE BROADLY IN PROTECTING EMPLOYEE FREE SPEECH THAN THE
FEDERAL CONSTITUTION AND THAT IT CAN BE VINDICATED MOST EFFECTIVELY THROUGH A
BALANCING STANDARD THAT DIVERGE GENTLEMAN'S FROM FEDERAL PRECEDENT IN SOME SIGNIFICANT
WAY. SECOND -- WELL, I SHOULD SAY AS TO THE FIRST POINT, I THINK THIS COURT
COULD APPLY SUCH A BALANCING TEST THAT WE HAVE PUT FORWARD AT PAEJS 20 TO 22 OF OUR BRIEF
AND THAT WOULD BE SUFFICIENT TO HOLD THAT THE CONFIDENTIALITY POLICY IN THIS CASE IS UN
CONSTITUTIONAL AN CAN'T BE ENFORCED. IF THE COURT, HOWEVER, AS MR. DWYER
SUGGESTED, WISHES TO PROVIDE FURTHER GUIDANCE AS TO A CONSTITUTIONAL CONFIDENTIALITY POLICY
THAT COULD SUFFICE UNDER THE NEW JERSEY CONSTITUTION, THEN WE WOULD URGE THE COURT TO
LOOK TO THE BANNER STANDARD THAT THE NATIONAL LABOR RELATIONS BOARD HAD IN PLACE I BELIEVE
SINCE 2015, PERHAPS EARLIER. THAT STANDARD, WHICH I WILL NOTE PRIVATE EMPLOYERS IN NEW
JERSEY HAVE ALREADY OPERATED IS IN OUR VIEW BOTH WORKABLE AN RESPONSIVE TO THE COMPETING
INTERESTS THAT ARE AT SAKE IN THIS AREA. STAKE IN THIS AREA. THIRD,
THE CHALLENGED REGULATION WARNS CONSTITUTIONAL SCRUTINY IRRESPECTIVE OF WHETHER IT IS
SEEN AS A REQUEST OR A REQUIREMENT FOR CONFIDENTIALITY. IN THIS RESPECT,
CHIEF JUSTICE, I HOPE TO GET BACK TO YOUR REQUEST ABOUT R M BECAUSE I BELIEVE THIS COURT
SATISFIES DECISION IN THAT CASE IS ACTUALLY HELPFUL FOR PLAINTIFF'S CLAIMS.
AS TO MY FIRST POINT, WE'VE LAID OUT IN OUR BRIEF WHY THE NEW JERSEY CONSTITUTION SHOULD BE
INTERPRETED MORE EXPANSIVELY THAN THE FEDERAL FIRST AMENDMENT, THE TEXT SUPPORTS THAT
EXPANSIVE INTERPRETATION. WHAT I WANT TO FOCUS MY REMARKS ON THIS MORNING
IS WHY IN THE EMPLOYEE SPEECH CONTEXT, IN PARTICULAR, INTERPRETING THE STATE
CONSTITUTION MORE BROADLY THAN FEDERAL PROTECTIONS IS SO IMPORTANT. IN RECENT
YEARS, THE U.S. SUPREME COURT HAS ADOPTED A RANGE OF BARRIERS TO GOVERNMENT EMPLOYEES
RAISING FIRST AMENDMENT CLAIMS. T. FOR EXAMPLE, IN CON NICK, IT HELD THAT
AN EMPLOYEE MUST SHOW THAT THEIR SPEECH IN ORDER TO BE PROTECTED UNDER THE FIRST AMENDMENT
FROM GOVERNMENT POLICY REGULATIONS MUST BE ON A MATTER OF LEGITIMATE PUBLIC CONCERN.
THEN, IN THE GARS SET TEE DECISION, THE U.S. SUPREME COURT EE REBTD ANOTHER BARRIER SAYING
IN ORDER FOR AN EMPLOYEE TO PREVAIL ON A FIRST AMENDMENT CLAIM RELATED TO SPEECH IN THE
WORKPLACE THE EMPLOYEE WOULD HAVE TO SHOW THAT THE SPEECH THAT THEY SOUGHT TO ENGAGE IN
OR DID IN FACT ENGAGE IN WAS MADE OUTSIDE OF THEIR OFFICIAL JOB DUTIES. THE
EFFECT THAT THIS HAS HAD IS TO STOP FIRST AMENDMENT CLAIMS OFTENTIMES AT THE VERY
OUTSET OF A CASE SUCH THAT COURTS DO NOT EVER EVEN FWAJ IN THE KIND OF BALANCING THAT WE
WOULD URGE THIS COURT IS TO DO HERE. AS MANY COMMENT TAT TORS HAVE REMARKED,
SOME COURTS AS WELL, THE FIRST AMENDMENT STANDARD FOR ASSESSING RESTRICTIONS ON GOVERNMENT
EMPLOYEE SPEECH HAS PROVEN BOTH UN WORKABLE AND INSUFFICIENTLY PROTECTED OF SPEECH INTERESTS.
WE WOULD URGE THIS COURT LIKE THE SUPREME COURT OF CONNECTICUT TO GO A
DIFFERENT WAY AND TO LOOK SPECIFICALLY AT THE LANGUAGE OF THE NEW YERS CONSTITUTION WHICH
FOR ALL THE REASONS IN OUR BRIEF IS MORE BROADLY TERMED, NOT JUST WITH RESPECT TO SPEECH
ON ANY SUBJECT, BUT IN PROTECTING THE RIGHTS OF PUBLIC EMPLOYEES TO ORGANIZE. AS
WE'VE NOTED, THAT RIGHT TO ORGANIZE NECESSARILY ENCOMPASSES A CONCOMITANT RIGHT TO GET
TOGETHER WITH OTHER EMPLOYEES AN TO TALK ABOUT TERMS AN CONDITIONS OF WORK. .
NOW, THE BEST STANDARD IN OUR VIEW FOR VINDICATING NEW JERSEY FREE SPEECH RIGHTS IS A BALANCING
TEST AND I BELIEVE THAT WE ARE ON THE SAME PAGE WITH MR. DWYER, BUT I DO WANT TO LAY OUT
HOW WE VIEW THE BALANCING TEST AND HOW IT RELATES TO THE N L R B STANDARD. SO IN OUR
VIEW THE BALANCING TEST THAT THIS COURT SHOULD ADOPT IN LOOKING AT EMPLOYEE'S FREE SPEECH
CLAIMS UNDER THE NEW JERSEY CONSTITUTION WOULD, SIMILAR TO THE U.S. SUPREME COURT'S DECISION
IN PICK KERING AN THE M T E U CASE CITED IN THE BRIEF IT WOULD BLANK A MF EASE INTEREST
IN ENGAGING IN SPEECH. THE PLAINTIFF WOULD HAVE THE BURDEN OF SHOWING WHATEVER THE CHALLENGED
POLICY OR ACTION OR RESTRICTION ACTUALLY IMPINGES ON SPEECH OR IN THE CASE OF A FACIAL
CHALLENGE IS LIKELY TO IMPAIR SUBSTANTIAL AMOUNT OF SPEECH. ONCE THE PLAINTIFF
MEETS THAT BURDEN AND NOTE HERE THAT I DID NOT INCLUDE WHAT WOULD ALLY UNDER FEDERAL LAW,
PLAINTIFF IN OUR VIEW WOULD NOT HAVE TO SHOW THE SPEECH ON IS A MATTER OF PUBLIC CONCERN
BECAUSE UN THE NEW JERSEY CONSTITUTION, PUBLIC EMPLOYEES HAVE A RIGHT TO ORGANIZE AND
WE THINK THAT INCLUDES DISCUSSION OF INTERNAL POLICIES TERMS AN CONDITIONS. AND
UNDER OUR VIEW AT THIS FIRST STEP, THE PLAINTIFF SHOWING, ALSO, WOULD NOT HAVE TO INCLUDE
A NONGS THAT THE PLAINTIFF'S SPEECH IS OUTSIDE THEIR OFFICIAL JOB DUTIES. IN
SOME CASES AND THIS COMES FORTH IN THE DPARS SET TEE DISSENT BLANK. SO ONCE
THE LF IN OUR VIEW MAKES THAT INITIAL SHOWING, THE BURDEN WOULD THEN SHIFT TO THE FWOVT
TO JUSTIFY THE CHALLENGED RESTRICTION ON EMPLOYEE SPEECH. IN THIS RESPECT,
I THINK THE N T E U STANDARD ACTUALLY IS HELPFUL AN APPLIED HERE WOULD INVALIDATE THE
POLICY SO IN N T E U, THE U.S. SUPREME COURT SAID YOU LOOK TO WHETHER THE IMPACT OF THE
RESTRICTED SPEECH IS SUCH THAT IT WILL HAVE A SORT OF -- IS SORT OF OUTWEIGHED BY THE
NECESSARY -- SORRY. THE IMPACT OF THE RESTRICTED SPEECHL ON THE NECESSARY OPERATIONS
OF THE GOVERNMENT IS OUTWEIGHED BY THE GOVERNMENT'S TRES OR BY THE EMPLOYEE'S
INTEREST IN ENGAGING IN THE SPEECH. JUSTICE WAINER APTER: ARE YOU SUGGESTING
THIS AS A WAY TO REVIEW A FACIAL CHALLENGE TO A PARTICULAR REGS. OR ARE YOU SUGGESTING
THIS EVERY TIME SOMEONE WANTS TO SPEAK IN THE WORKPLACE THERE HAS TO BE THIS ELABORATE
BALANCING TEST? THAT'S WHAT IT SOUNDED LIKE TO ME. JULIE A.
MURRAY: THAT'S A GOOD QUESTION, YOUR HONOR. THE BALANCING TEST THAT I HAVE
JUST DESCRIBED WOULD BE A BALANCING TEST SIMILAR TO THE TEST APPLIED IN THE N T E U CASE
WHEN YOU ARE ENCOUNTERING A FACIAL CHALLENGE TO A RESTRICTION ON GOVERNMENT EMPLOYEE
SPEECH. WE THINK THAT APPLICATION OF THAT BALANCING TEST THAT I JUST DESCRIBED
AND I AM NOT TALKING HERE ABOUT THE N L R B STANDARD AT ALL. YOU WOULDN'T EVEN NEED TO
GET THAT THE N L R B STANDARD AS SUGGESTED AS AN ALTERNATIVE IN ORDER TO DECIDE THIS CASE.
WE THINK THE BALANCING TEST THAT I YUS LAID OUT SIMILAR TO N T E U, BUT WITHOUT SOME OF THE
I'M PEDESTRIAN MTHS THAT THE UGS US SUPREME COURT HAS IMPORTED INTO FIRST AMENDMENT LAW
IS SUFFICIENT TO LOOK AT THIS POLICY ON ITS FACE AN SAY IT IS OVER BROAD. IT IS BOEG
TO CHILL EMPLOYEE SPEECH AS CURRENTLY WRITTEN AN IS THEREFORE INVALID. HOWEVER,
IF THE COURT WANTED TO PROVIDE ADDITIONAL GUIDANCE TO THE STATE OF A POLICY OR PRACTICE
THAT COULD SUFFICE UNDER THE STANDARD FOR NEW JERSEY'S PROTECTION FOR FREE SPEECH, THEN
I THINK WE WOULD SAY IS A, LOOK TO THE BANNER STANDARD AS A MODEL. I DO WANT
TO EMPHASIZE, YOU KNOW, IN RESPONSE TO SOME OF THE QUESTIONS EARLIER ABOUT THE WORK ABILITY
OF A CASE BY CASE ANALYSIS, WHAT WE KNOW IS THAT BANNER FOR YEARS REQUIRED PRIVATE EMPLOYERS
WHOSE EMPLOYEES WERE COVERED BY THE NATIONAL LABOR RELATIONS ACT, IT OUTLAUD, CATEGOR
ICAL CONFIDENTIALITY POLICIES LIKE THE ONE AT ISSUE HERE IF IT WERE A PRIVATE EMPLOYER.
WE KNOW THAT EMPLOYERS IN NEW JERSEY HAVE APPLIED THAT KIND OF CASE BY CASE
BALANCING OF THEIR OWN TO SAY, YOU KNOW, IN THIS CASE I AM GOING TO ASK YOU TO KEEP
CONFIDENTIAL XYZ INFORMATION AN NOT TALK TO A B C WITNESSES. I THINK THAT IS
THE BEST EVIDENCE AS TO WHETHER THIS STANDARD FROM THE BANNER HEALTH DECISION WOULD BE
WORKABLE. IT WAS IN PLACE FOR A NUMBER OF YEARS, INCLUDING WITH RESPECT TO
PRIVATE EMPLOYERS IN NEW JERSEY, AS DISCUSSED IN THE BRIEF, BANNER WAS OVERRULED IN 2019,
I BELIEVE, AND SINCE THEN THE DECISION OVERRULING BANNER HAS ITSELF BEEN OVERRULED.
WHAT THAT MEANS, I THINK, IN PRACTICE, IS THAT IF YOU ARE A RESPONSIBLE EMPLOYMENT OR
MANAGEMENT SIDE ATTORNEY IN NEW JERSEY TODAY, WHAT YOU KNOW IS THAT THE DECISION THAT WAS
PROTECTING YOUR BLANKET CONFIDENTIALITY AGREEMENT OR CONFIDENTIALITY POLICY AND IN PRIVATE
WORKPLACES HAS NOW BEEN OVERRULED BY THE NATIONAL LABOR RELATIONS BOARD. JUSTICE
PATTERSON: YOU SAY THAT'S EVIDENCE THAT IT'S WORKABLE. IT'S EVIDENCE THAT IT IS CURRENTLY
THE LAW THAT APPLIES TO PRIVATE EMPLOYERS, BUT IN TERMS OF GIVING GUIDANCE TO THE AGENCY
IN THIS CASE, TO THE CIVIL SERVICE COMMISSION IN THIS CASE AS TO HOW TO MAKE THAT WORK,
IT SEEMS TO ME WE'RE MISSING THE SUBSTANCE OF HOW THAT WORKS BECAUSE YOU KNOW, YOU JUST
WERE SAYING WELL YOU CAN'T TALK TO X Y OR Z WITNESS FOR X TIME. THERE ARE, I WOULD
SUGGEST, REAL PROBLEMS WITH THAT IN MANY SITUATIONS BECAUSE YOU ARE TELLING A
PARTICULAR WITNESS, WHO IS AN IMPORTANT WITNESS IT IS BEING DISCUSSED WITH AND THAT IN
AND OF ITSELF MAY BE THE STATE VIOLATING ITS OBLIGATION TO KEEP THE INVESTIGATION
CONFIDENTIAL AN FOR REASONSES HAVING EVERYTHING TO DO WITH HUMAN NATURE, NOT NECESSARILY
NEFARIOUS BUT IT COULD COMPROMISE THE ENTIRE INVESTIGATION AND CHILL THE WILLINGNESS OF
PEOPLE TO COME FORWARD. IT COULD HAVE IN THE WORKPLACE A CATEGORY STROF IF I CAN EFFECT.
I I THINK IT IS TRUE THAT BANNER GOVERNS SOME EMPLOYERS, BUT I THINK WHAT WE NEED TO
UNDERSTAND IS WHY IS THAT WORKABLE HERE AND HOW COULD THAT POSSIBLY TRANSLATE INTO THE
REALITY OF AN INVESTIGATION AN HOW MUCH DISCRETION DOES THAT GIVE TO INVESTIGATORS
WHO ARE NOT LAWYERS FOR THE MOST PART MU MURRAY A FEW THINGS, YOUR HONOR. I
THINK IT IS, AGAIN, SOME OF THIS IS GOING TO BE DECIDED AT THE EMPLOYER LEVEL. HOW DOES
IT WORK AT A PARTICULAR WORKPLACE GIVEN THE PARTICULAR NATURE OF THE WORK, THE TYPE OF
INVESTIGATIONS THEY TYPICALLY GET, THE VULNERABILITY OF THE EMPLOYEES IN THEIR
WORKPLACE AN I WOULD SUBMIT THE CASE BY CASE STANDARD THAT WE ARE SUGGESTING AS GUIDANCE
TO EMPLOYERS IS, IN FACT THE MOST RESPECTFUL OF THE ABILITY OF EMPLOYERS TO DECIDE IN
THEIR OWN WORKPLACES AN FACTOR IN THE NATURE OF THEIR WORKPLACES IN MAKING THESE CONFIDENT
IALITY REQUESTS. JUSTICE PATTERSON: THE CONTENT OF WHAT YOU JUST TOLD US
IS PART OF THE GUIDANCE WE SHOULD GIVE IF WE GIVE GUIDANCE IS CASE BY CASE AND THAT'S
INTERESTING AND GOOD, BUT IT DOESN'T TELL THE INVESTIGATOR -- IT DOESN'T TELL THE
COMMISSION WHAT TO TRAIN INVESTIGATORS TO DO WITH RESPECT TO CONFIDENTIALITY IN ANY SORT
OF SUBSTANTIATE I SUBSTANTIVE WAY. DO YOU SEE WHAT I AM GETTING AT?
JULIE A. MURRAY: IF THE COMMISSION WERE TO CREATE ANOTHER REGULATION AND SAY GOING FORWARD
ON A CASE-BY-CASE BASIS INVESTIGATOR MAY -- AN IN SOME CASES SHALL REQUEST CONFIDENTIALITY
WHERE NECESSARY TO, YOU KNOW, AS DISCUSSED, PREVENT COLLUSION, DESTRUCTION OF EVIDENCE,
ENSURE, YOU KNOW, PRIVACY TO THE EXTENT PRACTICABLE, THEN I THINK THAT IT COULD
OUTLINE FACTORS THAT INVESTIGATORS SHALL CONSIDER IN DETERMINING WHETHER TO MAKE A CONFIDENT
IALITY. AGAIN, IN THIS COULD BE, IN OUR VIEW, IT COULD BE A REQUEST. THERE IS
SOME INFORMATION THAT MAY BE SO SENSE SIT S-IN THESE INVESTIGATIONS THAT IT WOULD BE PER
MISSIBLE NOT JUST FOR THE STATE TO REQUEST IT BUT TO REQUIRE CONFIDENT SHE LETTER AL OF
THAT INFORMATION. PATH PALT YOU HAVE HIPAA FOR EXAMPLE. YOU HAVE PEOPLE'S MENTAL HEALTH
INFORMATION. JULIE A. MURRAY: TO THE EXTENT THAT WAS REVEALED. YES, WE
CERTAINLY AGREE WITH MR. DWYER THAT THE GOVERNMENT CAN OF COURSE REQUIRE ITS OWN
INVESTIGATORS TO KEEP CONFIDENTIAL THE PARTS OF AN INVESTIGATION, EXCEPT WHERE NECESSARY
TO DO THE INVESTIGATION. THERE MAY BE SOMETIMES WHERE, YOU KNOW, AS HE SAID
YOU'RE DOING A SEXUAL HARASSMENT INVESTIGATION AND YOU COME AND ASK ABOUT SO AND SO'S
INTERACTIONS WITH A PARTICULAR EMPLOYEE. THEY KNOW WHO YOU'RE TALKING ABOUT. I THINK
EVEN THE EEOC IN ITS GUIDANCE HAS RECOGNIZED COMPLETE CONFIDENTIALITY IS NOT POSSIBLE
IN INTERNAL WORKPLACE INVESTIGATIONS. THE KEY IS WHETHER YOU ARE -- YOU KNOW, ALL THINGS
CONSIDERED, TRYING TO MAINTAIN AS THE STATE THE CONFIDENTIALITY OF THE INVESTIGATION PROCESS
IN ORDER TO MAKE IT EFFECTIVE. I THINK WE ALSO HAVE THOSE CONCERNS ABOUT
THE VULNERABILITY OF EMPLOYEES WHO COME FORWARD WITH COMPLAENTS AND WHO MAY DO SO ONLY
IF THEY FEEL LIKE THEY CAN DO IT IN A WAY THAT IS NOT GOING TO SUBJECT THEM TO INCREASED
HARASSMENT OR RETALIATION. I THINK THE STATE COULD IDENTIFY PARTICULAR FACTORS,
INCLUDING WHETHER THE INVESTIGATION REMAINS OPEN OR HAS BEEN CLOSED, WHETHER THE INFORMATION
THAT IS SOUGHT FOR WHICH THEY ARE SEEKING CONFIDENTIALITY IS INFORMATION THAT WAS
ALREADY KNOWN TO THE WITNESS AT THE TIME THEY WERE INTERVIEWED OR INFORMATION THAT THE
STATE HAD TO FWIF THE WITNESS IN ORDER TO ASK THEM QUESTIONS AS PART OF THE INVESTIGATION.
I THINK THAT IS A DISTINCTION THAT MATTERS IN TERMS OF WHETHER SOMEONE HAS AN INTEREST
IN SPEAKING OR REVEALING INFORMATION OUTSIDE THE WORKPLACE. ADDITIONAL FACTORS
THAT COULD BE CONSIDERED MIGHT INCLUDE THE VULNERABILITY OF THE PARTICULAR EMPLOYEE SO
IF YOU HAVE A WORKPLACE WHERE SOMEONE IS ALLEGING PHYSICAL HARASSMENT, ASSAULT, BASED
ON RACE, FOR EXAMPLE, IT'S AN ALL-WHITE WORKPLACE AN ONE PERSON'S COLOR IS ALLEGING IS
ALLEGING HARASSMENT, IN THAT KIND OF WORKPLACE YOU MAY THINK THE POSSIBILITY OF GREAT
ER HARASSMENT FROM DISCLOSURE IS GOING TO SUBJECT THAT EMPLOYEE TO MORE RISKS, YOU KNOW,
POTENTIALLY PHYSICAL RISKS AS WELL SO I THINK THE CASE BY CASE POLICY OR CASE BY CASE APPROACH
REALLY DOES GIVE EMPLOYERS LEEWAY WHERE THERE IS A NECESSITY FOR CONFIDENTIALITY TO NOT
JUST REQUEST IT, BUT REQUIRE IT SO LONG AS IT IS DONE IN A CASE BY CASE WAY.
JUSTICE WAINER APTER: DO ANY OF THE CONCERNS THAT YOU'RE RAISING HAVE TO TO WITH A COMPLAINING
WITNESS THEM SELF SPEAKING OR ARE THEY ALL ABOUT THE STATE REVEALING PART OF THE INVESTIGATION
OR THE PERSON WHO HAD THE ALLEGATION MADE AGAINST THEM RETALIATING AGAINST THE COMPLAINING
WITNESS OR HARASSING THE COMPLAINING WITNESS OR SPREADING RUMORS ABOUT THE COMPLAINING
WITNESS TO THE ENTIRE OFFICE. I AM TRYING TO UNDERSTAND IN HAD YOUR BALANCING FRAMEWORK
IS THERE EVER A REASON TO PROHIBIT THE COMPLAINING WITNESS FROM SPEAKING?
JULIE A. MURRAY: I COULD IMAGINE SO, YES. TO THE EXTENT FOR EXAMPLE, THAT
A COMPLAINING WITNESS, IF THERE IS CONCERN THAT THE COMPLAINING WITNESS MAY BE COLLUDING
WITH OTHER INDIVIDUALS IDENTIFIED AS WITNESSES TO CERTAIN BE HAY I DON'T REMEMBER THAT IS
AT ISSUE IN THE COMPLAINT, YOU COULD ENVISION A SITUATION IN WHICH YOU WOULDN'T WANT
THE COMPLAINING WITNESS TALKING TO THOSE PARTICULAR PEOPLE FOR A PERIOD OF TIME. L.
JUSTICE SOLOMON: THAT IS EXACTLY WHAT YOUR COLLEAGUE SAID IS AN INCENTIVE OR
A REASON NOT TO REQUIRE CONFIDENTIALITY BECAUSE THERE ARE OTHER PEOPLE IN THE WORKPLACE
WHO MAY HAVE A SIMILAR COMPLAINT AND YOU WANT TO HAVE AN OPPORTUNITY TO FLESH THAT OUT
DURING THE INVESTIGATION. WHAT YOU ARE SUGGESTING, DON'T LET THE DMRANG WITNESS
TALK ABOUT THAT TO OTHERS, FOR EXAMPLE EXACTLY THAT SAME REASON. YOU SEEM TO BE AT LOG
GER HEADS WITH YOUR KOLLY. JULIE A. MURRAY: I DON'T THINK WE ARE. I THINK
THE DISTINCTION I WOULD MAKE IS A CONFIDENTIALITY RESTRICTION TO PREVENT COLLUSION WOULD
PREVENT TALKING ABOUT SPECIFIC INFORMATION THAT YOU'RE TRYING TO AVOID HAVING PEOPLE LINE
UP ON. L SO, YOU KNOW, WE WERE IN M THE BREAK ROOM AND THIS HAPPENED AND THEN THIS HAPPENED
AND THEN THIS HAPPENED. MAYBE THEY CAN'T TALK ABOUT THAT. IF THE ACCUSED PERSON WANTS
TO TELL SOMEONE, THEY ARE INVESTIGATING ME, AGAIN, YOU DON'T KNOW, THIS IS THE FOURTH
TIME OR THEY ARE INVESTIGATING ME AND THEY'RE NOT TALKING TO ANYBODY WHO SAW THIS, THIS IS
A SHAM AND THEY WANT TO SAY THAT TO THEIR KOL CLEEG, IN OUR VIEW, THAT IS THE KIND OF
SPEECH THAT SHOULD BE PROTECTED AND THAT IS PART AND PARCEL OF ORGANIZING GETTING TOGETHER
AS EMPLOYEES TO DISCUSS TERMS AN CONDITIONS. JUSTICE PATTERSON: BUT THERE IS
SUCH A FINE LINE THERE. I THINK YOU'VE GOT SOME VERY INTERESTING IDEAS, BUT
IT BOARDERS ON MICROMANAGEMENT. IF PEOPLE SAY TO A WITNESS YOU CAN DISCUSS YOUR CONCERNS
ABOUT THE INVESTIGATION OR WHATEVER IT MAY BE, GIVE THEM AREAS THAT THEY CAN DISCUSS,
IT'S A VERY FINE LINE BETWEEN THEY ARE NOT INTERVIEWING THE RIGHT PEOPLE AND HERE IS
WHAT HAPPENED IN THE BREAK ROOM AND YOU REMEMBER THAT, OTHER WITNESS. THE COMPLAINING
WITNESS COULD BE SAYING IT COULD BE INNOCUOUS OR NOT INNOCUOUS, YOU REMEMBER HOW IT WENT
THIS HAPPENED THIS HAPPENED AND THIS HAPPENED AND THAT DOES AFFECT THE INTEGRITY OF THE
INVESTIGATION JUST AS POTENTIALLY ON THE OTHER SIDE THE ACCUSED PERSON COULD BE HAVING
THOSE SAME CONVERSATIONS WHICH COULD ALSO IMPACT THE INTEGRITY. IT SEEMS TO
ME IF YOU ARE DRAWING A LINE BETWEEN GENERAL DISCUSSIONS OF THE WAY THE INVESTIGATION
IS GOING, OF WHAT THE CLAIM IS ABOUT AND SPECIFICALLY PROHIBITING -- ALLOWING THE
INVESTIGATOR TO PROHIBIT OR ASK PEOPLE NOT TO DISCUSS THE SUBSTANCE OF WHAT HAPPENED,
THAT'S A REALLY FINE LINE TO DRAW. JULIE A. MURRAY: YOUR HONOR, I DON'T
DISPUTE THAT THERE ARE GOING TO BE HARD CALLS. I THINK THE ADVANTAGE OF THE TEST THAT
WE ARE SUGGESTING IS THAT IT PUTS THOSE HARD CALLS AT LEAST AT THE FIRST LINE WITH
EMPLOYERS, GIVEN ALL THAT THEY KNOW ABOUT EACH INVESTIGATION, THAT IS GOING TO BE UNIQUE.
THE OTHER THING THAT I WOULD SAY IS THAT THESE ARE HARD QUESTIONS. AS
AN OBLIGATION ORGANIZATION, WE HAVE DIFFERENT INTERESTS ON THESE ISSUES, BUT I THINK
DRAWING THE LINE AS NEW JERSEY HAS DONE TO SAY CONFIDENTIALITY IN ALL RESPECTS CAN'T BE
THE SOLUTION TO THE FACT THAT THERE ARE GOING TO BE HARD CASES. IT SHOULD NOT BE THAT
THE RIGHT TO FREE SPEECH IS BURDENED FAR MORE BROADLY THAN NECESSARY TO PROTECT THE STATE'S
INTEREST IN SOME CASES SIMPLY BECAUSE IT'S EASY. THE COURT: MS. MURRAY WE'RE
BEYOND 20 MINUTES I KNOW YOU HAD A THIRD POINT TO ADDRESS, I WILL ASK YOU TO DO IT QUICKLY.
L. JULIE A. MURRAY: YES, YOUR HONOR, I WILL JUST SAY THE THIRD POINT WAS
AS TO THIS COERCION VERSUS CONVINCING POINT THAT I THINK THE STATE HAS FOCUSED ON AND
THE APPELLATE DIVISION AGREED WITH. WITH RESPECT TO R M, I THINK IT IS ACTUALLY
VERY HELPFUL IN SHOWING THIS DISTINCTION BETWEEN OH KERGS AND CONVINCING. NOW,
R M WAS SOMEWHAT DIFFERENT IN THAT IT WAS OUTSIDE THE EMPLOYEE/EMPLOYER CONTEXT SO THE
PLAIN NANTS THERE, MEMBERS OF THE PUBLIC, THEIR LIVELIHOOD WAS NOT RIDING ON THEIR
WILLINGNESS TO KEEP QUIET THEIR COMPLAINTS. THE COURT RECOGNIZED IN R M THAT
THERE ARE COUNTER EFFECTS MUCH OF A CONFIDENTIALITY POLICY THAT HURT
COMPLAINANTS, TOO. IN SOME CASES IF A COMPLAIN KNOWS THEY ARE GOING TO MAKE A COMPLAINT,
THAT IS, THEY ARE NOT GOING TO COMPLAIN BECAUSE THEY DON'T WANT TO BE GAGGED WHETHER THEY ARE
TALKING TO ANOTHER ATTORNEY, ANOTHER ENTITY, SOMEONE THEY KNOW IN THE WORKPLACE, THAT
COULD ITSELF DISCOURAGE REPORTING. I THINK THAT IS AN IMPORTANT ACKNOWLEDGMENT
IN R M ABOUT THE IMPACT OF A CONFIDENTIALITY POLICY. THE COURT, ALSO, ALTHOUGH
I THINK THE STATE POENTS TO THIS COURT'S LANGUAGE SAYING THAT THE COMMISSION THERE, THE
ETHICS COMMISSION COULD ENCOURAGE CONFIDENTIALITY, THE COURT'S STATEMENT IN
THAT RESPECT CLEARLY ASSUMED THAT THERE IS LANGUAGE IN THERE ABOUT, YES, THEY COULD
RECOMMEND CONFIDENTIALITY, ASSUMING THAT THE COMPLAINANT WOULD UNDERSTAND THAT THEY ARE
ABLE TO KEEP IT CONFIDENTIAL OR NOT, AS IS IN THEIR BEST INTEREST. AND THEN
THE FINAL THING I WILL NOTE ABOUT R M IS THAT UNLIKE THIS POLICY IN FRONT OF YOU, IT WAS
LIMITED TO OPEN INVESTIGATIONS, HAD A NUMBER OF EXCEPTIONS INCLUDING WHERE INFORMATION
WAS ALREADY PUBLICLY KNOWN OR KNOWN TO THE WITNESS -- THE COMPLAINANT AND, YOU KNOW, HAD
A NUMBER OF EXCEPTIONS THAT THIS POLICY IS CLEARLY LACKING. JUSTICE
PATTERSON: I WANT TO ASK YOU ONE FOLLOW UP BECAUSE YOU ACKNOWLEDGE THAT THERE MAY BE
SITUATIONS WHERE A WITNESS IS NOT JUST REQUESTED, BUT HAS TO BE DIRECTED NOT TO DISCLOSE
AND WHAT THE PROVISION OF THAT MIGHT BE. DOES THAT INCLUDE A BLANKET POLICY
THAT SAYS AS TO ALL COMMUNICATIONS, WE'RE REQUESTING, BUT THERE ARE NO CONSEQUENCES IF
YOU DON'T FOLLOW THIS REQUEST? HAD. JUST HYPOTHETICALLY, LET'S SAY A HENT
TAL MENTAL HEALTH RECORD OR TO SOME DEGREE MENTAL HEALTH INFORMATION HAS TO BE DISCLOSED
TO A WITNESS IN ORDER TO ASK A QUESTION, JUST ASSUME THAT. THAT OBVIOUSLY IS A SUBJECT
OF FEDERAL AND STATE LAW AS HAS TO BE PROTECTED, CAN YOU RESPECT THOSE OTHER CONSIDERATIONS
AND AT THE SAME TIME HAVE A BLANKET POLICY THAT SAYS THIS IS ONLY A REQUEST AND PLEASE
FEEL FREE TO DISREGARD IT? JULIE A. MURRAY: IN AN AS-APPLIED CONTEXT,
I COULD ENVISION, I SUPPOSE, A STATE THAT HAS THAT POLICY FOR EVERYONE AND THEN ESSENTIAL
LY PUTS IN PLACE ANOTHER POLICY FOR A PARTICULAR WITNESS IN A PARTICULAR CASE. I WOULD
IMAGINE THAT COULD RAISE OTHER CONCERNS, THOUGH, OTHER EMPLOYMENT CONCERNS IF THE PERSON
IS FERS TOLD THIS IS FINE AND THEN IS LATER TOLD HERE IS THIS DIRECTIVE AND IF YOU REVEAL
THIS INFORMATION YOU COULD BE FIRED. JUSTICE PATTERSON: ASSUMING THAT THERE
WOULD BE A PROCEDURE TO INFORM PEOPLE AS TO WHAT THEIR OBLIGATIONS, IF ANY, ARE AND WHAT
THE PLAYING FIELD IS, IT WOULD ALL BE DISCLOSED AT ONCE. IF YOU HAVE A SITUATION
WHERE -- I THINK YOU CAN COME UP WITH EXAMPLES WHERE SOMEBODY IS MET -- WHERE THE
COMPLAINANTS OR THE ALLEGED HARASSER'S MENTAL HEALTH HISTORY IS PART OF THE INQUIRY.
JULIE A. MURRAY: YES. JUSTICE PATTERSON: AND YOU MIGHT BE TASH DASH
THE STATE MIGHT BE UNDER AN OBLIGATION TO PROTECT THAT INFORMATION WITHOUT EXCEPTION SO
DOES THAT RUN UP AGAINST A GENERAL POLICY THAT WE TALKED ABOUT FROM THE QUESTIONING THAT
SIMPLY SAYS THAT EVERYTHING, THERE ARE ONLY REQUESTS, YOU NEED NOT FOLLOW IT IN ESSENCE.
JULIE A. MURRAY: IT SOUNDS LIKE A SITUATION WHERE YOU HAVE A POLICY THAT
SAYS THIS IS A REQUEST, ATTEMPTED TO HAVE SOME CURE RAT I CURATIVE LANGUAGE SIMILAR TO
THE QUESTIONS EARLIER, WE REALLY MEAN THIS IS A REQUEST, YOU CAN TELL ANYONE, ESSENTIAL
LY AN THEN PERHAPS HAD A CARVE OUT THAT SAID AND IF WE'RE GOING TO REQUIRE YOU TO KEEP
SOMETHING CONFIDENTIAL, WE WILL IDENTIFY THAT SPECIFICALLY AND HAVE ANOTHER PROCESS.
PERHAPS THAT COULD BE A WAY TO W E A V E IN THE CONCERNS I AM HEARING. IT
SOUNDS KIND OF CONFUSING, BUT IT SEEMS POSSIBLE THAT YOU COULD TELL SOMEONE YOU CAN TALK
ABOUT THIS UNLESS WE DETERMINE IN THE COURSE OF OUR CONVERSATIONS, THERE IS PARTICULAR
INFORMATION FOR A PARTICULAR PERIOD OF TIME THAT WE ARE GOING TO EITHER REQUEST OR REQUIRE
YOU NOT TO DISCLOSE. THE COURT: THANK YOU, COUNSEL. JULIE A.
MURRAY: THANK YOU, YOUR HONORS. SFLFRMENTS MS. ARONS DONNA ARONS: THANK
THANK YOU. MAY IT PLEASE THE COURT, THE STATE OF NEW JERSEY IS COMMITTED T
PROTECTING ITS EMPLOYEES AND ITS CITIZENS BY ENSURING THAT ITS WORKERS ARE FREE
FROM UNLAWFUL DISCRIMINATION AND HARASSMENT, TO THAT END OVER THE PAST SEVERAL
DECADES THE STATE HAS IMPLEMENTED A ROBUST POLICY THAT AMSZ TOLL ADDRESS
ALL FORMS OF DISCRIMINATING AND HARASSING CONDUCT, EVEN MATTERS THAT MIGHT NOT
RISE TO THE LEVEL OF ANTI DISCRIMINATION LAW. KRIT KALG TO THE SUCCESS
OF THIS POLICY IS CREATING A SAFE ENVIRONMENT THAT ENCOURAGES VICTIMS TO COME FORWARD
AND REPORT APPROXIMATE SO THAT THEY CAN BE INVESTIGATED AND REMEDIED. YET
VICTIMS ARE OFTEN HESITANT TO DO THAT, THEY MAY FEAR RECRIMINATION IN THE WORK
PLACE, SUCH AS WORK RELATED REPRISAL OR FORMS OF SOCIAL RETALIATION IF THEY
REPORT ACTS. THEY ALSO MAY LACK CONFIDENCE THAT THE INVESTIGATION MAY BE FAIR
AND IMPARTIAL, THEY WORRY THAT IT MAY BE MANIPULATED, WITNESSES TO MAY HESITATE
TO COOPERATE WITH INVESTIGATIONS FEARING THAT THEY MAY ALSO BE SUBJECT TO
WORK PLACE OR SOCIAL RETALIATION IF THEY PARTICIPATE CHL THE STATE SHARES ALL OF
THESE CONCERNS, IT HAS A STRONG INTEREST IN MAINTAINING THE INTEG RITD OF THE
ITS INVESTIGATIVE PROCESS IN ELIMINATING COLLATERAL DAMAGE TO VICTIMS AND WITNESSES
WHO COME FORWARD WITH COMPLAINTS AND COOPERATE CHL THE C S C'S 2020 AMENDED
RULE GOVERNING REQUESTS FOR CON IF I DN SHALTD AIMS TO ADDRESS THESE LEGITIMATE
INTERESTS. A REQUEST FOR CONFIDENTIALITY REDUCES THE VERY REAL RISK THAT
WITNESSES WILL TAINT THE INVESTIGATION, WHETHER INTENTIONALLY OR NOT, BY DISCUSSING
THEIR VERSIONS OF EVENTS WITH OTHER POTENTIAL WITNESSES AND POSSIBLY
INFLUENCING OR MANIPULATING THEIR STATEMENT. IN MAINTAINING CONFIDENTIALITY PROTECTS
THE PROCEED VAES INTERESTS OF THE VICTIM, THE ACCRUED AND ON THE WITNESSES,
THAT THEY MAY BECOME WORK PLACE GOSZ ZIP, RECRIMINATION OR RETALIATION. IN LIGHT
OF THIS THE WORK PLACE CALLS ON INVESTIGATES TO ADVISES OF MAINTAINING
CONFIDENTIALITY AND REQUEST THAT UNLESS THOEF A LEGITIMATE WORK RELATED REASONABLE
FOR DOING SO THEY NOT DISCUSS THE INVESTIGATION. ULTIMATELY THE DECISION TO
AGREE TO THIS REQUEST IS UP TO THE WITNESS, THERE IS NOTHING IN THE REGULATION
THAT MANDATES OR EVEN SUGGESTS THAT THERE WILL BE ANY REPERCUSSIONS IF THEY CHOOSE
TO DISCLOSE THE INFORMATION, BECAUSE THE REGULATION MERELY STATES THAT THE
INVESTIGATORS SHOULD REQUEST CONFIDENTIALITY THERE IS NO FREE SPEECH
AGAINST EMPLOYEES, IN, THE KEY IS THE DISTINCTION BETWEEN A GOVERNMENTAL
REQUEST AND GOVERNMENTAL COERCION, THERE IS NOTHING REMOTELY COERCIVE IN THE LANGUAGE
OF THE C S C'S REGULATION, IT CALLS ON THE INVESTIGATOR TO MAKE A REQUEST,
NOTHING MORE, WITH NO SUGGESTION THAT THERE WILL BE ANY NEGATIVE CONSEQUENCES TO
THE EMPLOYEE SO THERE IS NO RESTRAINT ON EMPLOYEE SPEECH. THIS REGULATION
BY REQUESTING CONFIDENTIALITY OF WITNESSES IN E E O INVESTIGATIONS SERVES AN IMPORTANT
PUBLIC INTEREST IN ERADICATING DISCRIMINATION IN THE STATES WORK PLACES.
AT THE SAME TIME IT EMBODIES A RECOGNITION OF THE IMPORTANCE OF ALLOWING EMPLOYEES
TO DISCUSS DISCRIMINATORY TREATMENT IN THE WORK PLACE IF THEY NEED TO.
ALL THE REGULATION REQUIRES IS THAT AN INVESTIGATOR EXPLAIN TO THE WOITSZ THE
BENEFITS OF MAINTAINING CONFIDENTIALITY AND REQUEST THAT THEY DO SO, FOR THESE
REASONS THE APPELLATE DIVISION CORRECTLY CONCLUDED THAT THE REGULATION WAS
VALID AND THIS COURT SHOULD CONFIRM THEIR DECISION. CHIEF JUSTICE
RABNER: AT THE BASIC LEVEL, IS IT FAIR TO SAY THAT THIS REGULATION COMPELS STATE
OFFICIALS TO ASK WITNESSES TO GIVE UP A PROTECTED RIGHT UNDER THE KWOOUGS
TO SPEAK FREELY. DONNA ARONS: NO, I WOULDN'T SAY THAT IT
GOES THEM TO GIVE UP A PROTECTED RIGHT. IT EXPLAINS WHAT THE BENEFITS ARE FOR
MAINTAINING CONFIDENTIALITY AND THEN LEAVES THAT DECISION UP TO THEM. IT REQUESTS
THAT THEY TAKE THOSE CONSIDERATION INTO ACCOUNT WHEN THEY DECIDE WHETHER OR
NOT TO SPEAK, BUT IT IS IN NO WAY COERCIVE IN TERMS OF TRYING TO COMPEL THEM NOT
TO SPEAK. CHIEF JUSTICE RABNER: SO I'M LOOKING AT THE LAST
SENTENCE IN SECTION J. IS THAT WHAT YOU'RE ALLUDING TO? DONNA
ARONS: YES. CHIEF JUSTICE RABNER: WHERE IT SAYS SPECIFICALLY
SHALL REQUEST ALL PERSONS NOT DISCUSS ANY ASPECT OF THE INVESTIGATION WITH THE
FILL UP UNLESS THERE IS A LEGITIMATE BUSINESS REASON, PUT THAT TO ONE SIDE
FOR NOW. DONNA ARONS: RIGHT. CHIEF JUSTICE
RABNER: THE I IT DOESN'T DIRECT GIVE THEM THE PLUSES AND THE MINUSES AND ALL OF
THAT, IT COMPELS INVESTIGATORS TO ASK PEOPLE TO GIVE UP THEIR RIGHT TO FREE
SPEECH, IT'S PLAIN LANGUAGE, NO? DONNA ARONS: WELL I MEAN I GUESS
YOU CAN PHRASE IT THAT WAY IN THE SENSE THAT ANY TIME THE GOVERNMENT MAKES
REQUESTS, THE GOVERNMENT CAN MAKE A REQUEST OF EMPLOYEES, COULD SENDS AN E-MAIL
TO EMPLOYEES FOR EXAMPLE SAYING WE'VE HEARD RUMORS THAT SOME EMPLOYEES ARE
INVOLVED IN A PRIVATE FACEBOOK PAGE THAT EXCHANGES RACIST JOKES, WE URGE EMPLOYEES
NOT TO ENGAGE IN THAT TYPE OF BEHAVIOR, IT'S, YOU KNOW, IT'S AN AND NAJ
MA TO CIVILIZED SOCIETY AND WE SUPPORT TREATING EVERYONE WITH RESPECT. THE GOVERNMENT
CAN MAKE REQUESTS OF EMPLOYEES AND EXPRESS ITS OWN VIEWS ON THINGS AND THAT'S
ALL THIS IS TRYING TO DO, IT'S TRYING TO MAKE A REQUEST LIKE NUMEROUS OTHER REQUESTS
THAT THE EMPLOYER MAKES IN THE WORK PLACE. CHIEF JUSTICE RABNER:
BUT HERE YOU'RE ASKING YOU COULD HAVE A WITNESS WHO WANTS TO TELL THE WORLD
ABOUT WHAT'S HAPPENED IN THE WORK PLACE, UNLIKE THE EXAMPLE THAT YOU GAVE IN YOUR
OPENING STATEMENT. SHOULDN'T THE REQUEST TO GIVE UP ONE'S RIGHT TO SPEAK FREELY
BE ACCOMPANIED BY XHEJTS THAT COMMENTS THAT YOU DON'T HAVE TO, YOU HAVE A RIGHT
NOT TO, YOU'RE NOT GOING TO BE PUNISHED IF YOU CHOOSE NOT TO SPEAK, WHY IS THAT
NOT A LEGITIMATE REQUEST. DONNA ARONS: OKAY. SO THIS IS
AN UNURNL REGULATION IN THE SENSE, AND I THINK YOU HIGHLIGHTED THIS, THAT
IT'S A REGULATION THAT ACTUALLY IS DIRECTED TO THE STATE. ORDINARILY WE REGULATE
OTHER PEOPLE. BUT HERE THIS IS A REGULATION, REGULATING A STATE ACTOR AND
TELLING THE STATE ACTOR HOW TO ACT, BUT IT DOESN'T REALLY -- THE INTENTION OF
THIS REGULATION IS TO THAT THE INVESTIGATOR EXPLAIN, WE COMPLETELY AGREE,
THE INVESTIGATOR SHOULD EXPLAIN TO THE WITNESS THAT THEY ARE NOT REQUIRED
TO DO THIS, IT IS MERELY A REQUEST. WE HAVE NO PROBLEM WITH THAT AT ALL, THAT IS
THE INTENTION OF THIS REGULATION. IT IS NOT INTENDED TO COMPEL ANYTHING.
IT IS INTENDED TO MAKE SURE THAT PEOPLE UNDER, YOU KNOW, WHY THERE'S AN INTEREST,
WHY THE GOVERNMENT FEELS THERE'S AN INTEREST IN MAINTAINING
CONFIDENTIALITY AND THEN LEAVE IT UP TO THE WITNESS OR THE COMPLAINANT OR
RESPONDENT OR WHOEVER WHETHER THEY WANT TO COMPLY WITH THAT OR NOT. SO IF THE COURT
WANTS TO WRITE AN OPINION THAT SAYS IT SHOULD -- YOU KNOW, THIS REQUEST
SHOULD BE ACCOMPANIED BY SOME LANGUAGE THAT MAKES IT CLEAR THAT IT'S NOT MANDATORY
AND THAT THERE IS NO DISCIPLINE, THAT'S FINE, THE C S C, THAT IS THE
INTENTION. JUSTICE WAINER APTER: HOW DO WE SQUARE THAT WITH
THE IMPLEMENTATION WHICH SEEMS LIKE ROCKY AT BEST IN THAT IT SEEMS LIKE IT'S A
STREAM OF PLAINTIFFS OR OTHERS POINTING OUTLOOK, HERE THE C S C IS STILL SAYING
THAT IT'S MANDATORY AND THAT NO ONE IS EVER ALLOWED TO SPEAK AND THEN THE
C S C IS SAYING TOOK DOWN THAT WEBSITE AND THEN ANOTHER PLAINTIFF SAYING HERE THE
C S C IS HANDING A PAPER THAT SAYS IT'S STILL MANDATORY AND THEN THE C S
C SAYS WE'LL TAKE AWAY THAT PAPER. IF THE INTENTION ALL ALONG IN 2020 WAS WE ARE
COMPLETELY CHANGING OUR POLICY, WE RECOGNIZE THAT IT HARMED VICTIMS BY
TELLING THEM THAT THEY COULD NOT SPEAK THAT THERE WAS A GAG ORDER AGAINST THEM AND
THEY WOULD BE FIRED IF THEY CAULKED TO AN I REMEMBER LAWYER OR WENT TO THE E E
OC TO FILE A DMRANTD OF DISCRIMINATION AND WE RECOGNIZE THE HARM THAT THAT
CAUSED AND WE ARE NOW SAYING THAT IT'S EVERYONE'S DECISION, WE'RE EXPLAINING THAT
IT'S EACH PERSON'S INDIVIDUAL DECISION AND YOU CAN MAKE THE DECISION AS
A VICTIM COMING FORWARD, HOW DO YOU SQUARE THAT WITH THE HISTORY OF THIS CASE WHERE
THE C S C CONTINUING TO SAY THIS IS REQUIRED, OH OOPS WE'LL PULL IT BACK,
THIS IS REQUIRED, OH OOPS WE'LL CHANGE IT, EVEN UP TO THIS YEAR, 3 YEARS AFTER THE
REGULATION WAS AMENDED. DONNA ARONS: SO YOU'RE RIGHT, THERE WAS
A ROCKY START TO THIS, IN ALL CANDOR I AGREE WITH THAT, I MADE INQUIRIES
WITH THE C S C TO FIND OUT WHY THEY DIDN'T UPDATE THEIR WEBSITE IMMEDIATELY AFTER
THE REGULATION WAS PROMULGATED AND THE PEOPLE WHO WERE IN CHARGE OF THAT
ARE NO LONGER WITH THE AGENCY BUT I CAN TELL THE COURT IN MY OWN EXPERIENCE IN
MARCH AND APRIL OF 2020 THAT THE C S C WAS INVOLVED IN THE HESHG KUL LEANNE
EFFORT IN TRYING TO GO SHUTDOWN THE ENTIRE WORK FORCE BECAUSE OF COVID AND IMPLEMENTING
A KNEW COVID LEAVE POLICY AND IT WAS IS AN UNPRECEDENTED CRISIS FOR THE STATE
AND MY BEST GUESS IS THAT IT FELL OFF SOMEONE'S RATER AND BY THE TAME THAT CRISIS
ABATED NO ONE REALIZED THAT IT HADN'T BEEN DONE AND THEN THE C S C IMMEDIATELY
CORRECTED THE WEBSITE AND HAS BEEN MAKING SURE THAT THE INVESTIGATORS ARE AWARE
THAT THE REGULATION HAS BEEN CHANGED, THEY'RE INFORMING THE INVESTIGATORS
THAT THE CHOICE IS THE WITNESS'S, THERE IS NO REPERCUSSIONS IF THEY CHOOSE NOT
TO ABIDE BY THE REQUEST. SO, YOU KNOW, YES, LIKE YOU SAID, IT WAS A ROCKY
START, BUT THAT'S THE BEST EXPLANATION THAT I HAVE AND IT'S UNFORTUNATE THAT THE
REGULATION WAS PROMULGATED RIGHT IN THE MIDDLE OF A COVID CRISIS.
CHIEF JUSTICE RABNER: CAN YOU SPEAK TO THE BREADTH OF THE REGULATION THAT'S ALREADY
BEEN DISCUSSED. IT CONTAINS NO LIMIT FOR TIME, IT'S ENDLESS, IT APPLIES TO
ALL WITNESSES, INCLUDING THOSE WHO WOULD WISH TO SPEAK, IT APPLIES TO ALL VESS,
REGARDLESS OF THE SERIOUSNESS OF THE INVESTIGATION, THE RISKS THAT ARE
INVOLVED. IS IT NARROWLY DRAWN. DONNA ARONS: THE REGULATION SIMPLY
MAKES A REQUEST, SAYS THAT THE INVESTIGATORS HAVE TO MILK A REQUEST,
IT IS NOT A RESTRICTION SO SPEECH, SO I'M GOING TO KEEP BEING A BROKEN RECORD AND
KEEP REPEATING THAT, SO I APOLOGIZE AHEAD OF TIME. CHIEF JUSTICE
RABNER: BUT IT MAKES THAT REQUEST IN ALL OF THE HYPOTHETICALS THAT WE'VE BEEN
SPEAKING ABOUT. DONNA ARONS: RIGHT. SO A KUCHL RKICHL OF
RESPONSES TO THAT. FIRST OF ALL THE ECHL E OC REQUEST IN 2016 POINTS OUT
THAT A VERY SMALL PERCENTAGE OF HARASSMENT COMPLAINTS ARE EVER REPORTED TO EMPLOYERS
AND EVER ACTED UPON AND A LARGE REASON FOR THAT IS VICTIMS ARE AFRAID TO
COME FORWARD AND I'M JUST GOING TO QUOTE FROM THE REPORT THAT WE HEAR STRONG SUPPORT
FOR THE PROPOSITION THAT WORK PLACE INVESTIGATION SHOULD BE KEPT AS CON
FIDENTIAL AS IS POSSIBLE, CONSISTENT WITH CONDUCTING A THOROUGH AND EFFECTIVE
INVESTIGATION. WE HEARD ALSO THAT AN EMPLOYER'S ABILITY TO MAINTAIN
CONFIDENTIALITY, SPECIFICALLY TO REQUEST THAT WITNESSES AND OTHERS INVOLVED IN A
HARASSMENT INVESTIGATION KEEP ALL INFORMATION CONFIDENTIAL HAS BEEN LIMITED IN
SOME INSTANCES BY THE DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
RELATING TO THE RIGHT OF EMPLOYEES TO ENGAGE IN CONCERTED PROTECTED ACTIVITY UNDER
THE N R L A, AND IT GOES ON TO SAY IN LIGHT OF THOSE CONCERNS WE URGE THAT
A WORKABLE POLICY BE KAUKT ONNED. THE VETHDZ SHOULD FIGURE OUT AT THE BEGINNING OF
A CASE WHETHER CONFIDENTIALITY IS NECESSARY, IS REALLY UNWORKABLE AND 4
YEARS LATER IT WAS OVERRULED IN THE APP. GEE CASE WHO SPECIFICALLY SAID IT WAS NOT
A WORKABLE TEST. AN INVESTIGATOR IS NOT A LAWYER, THEY'RE AN INVESTIGATOR, THEY
DON'T KNOW ALL THE INS AND OUTS OF WHERE AN INVESTIGATION IS GOING TO LEAD AT THE
POINT WHERE THEY INTERVIEW THE FIRST PERSON, AND -- JUSTICE
NORIEGA: BUT AT THIS MOMENT, THERE IS NO -- I DIDN'T SEE ANY GUIDANCE IN THE RECORD
FOR WHAT INVESTIGATORS ARE TOLD IN TERMS OF HOW TO DELIVER THE INFORMATION
TO THE WITNESSES. IS THAT RIGHT? THERE'S NO PARTICULAR FRAMEWORK, THERE'S NO
SCRIPT THAT THEY FOLLOW. DONNA ARONS: AS FAR AS -- HONESTLY
I DON'T KNOW IF THERE'S A SCRIPT THAT THEY FOLLOW, I CAN'T SAY ONE WAY OR
ANOTHER, I KNOW THEY GET STRAINED PERIODICALLY AND THEY HAVE PERIODIC MEETINGS
AND DISCUSS THESE THINGS, BUT I DON'T KNOW, I CAN'T SAY. JUSTICE
NORIEGA: BUT IN WHICH CASE WE'RE LEFT WITH IN EVERY SINGLE CASE IT'S REALLY UP
TO THE INVESTIGATOR AND THEIR ABILITY TO DISCERN HOW TO EXPLAIN THIS AND
HOW WELL TO EXPLAIN IT OR HOW FAR TO GO THAT WILL LEAD THE WITNESSES TO UNDERSTAND
WHAT THE RULES ARE, AND WHAT THE LIMITATIONS ARE. AND ISN'T THAT TOO
BROAD A REACH? DONNA ARONS: WELL I THINK AS I SAID OBVIOUSLY
IF THE COURT WRITES AN OPINION THAT SAYS THIS REGULATION IS CONSTITUTIONAL AS LONG AS
THE INVESTIGATORS MAKE CLEAR A, B, C, D, THAT WILL CERTAINLY BE PART OF
THEIR INSTRUCTIONS, WE CAN ALSO CHANGE THE NEW FORM ABOUT CONFIDENTIALITY THAT
MAKES IT CLEARER THAT THERE IS NO, THAT THEY WILL TAKE NO DISCIPLINARY ACTION,
NO REPERCUSSIONS IF SOMEONE CHOOSES NOT TO ABIDE BY THE REQUEST. BUT JUST TO CONTINUE
TO SMOND TO THE CHIEF'S POINT ABOUT THE PRACTICALITY IN THE WORK PLACE OF
NO END POINT, NO -- NOT MAKING A CASE BY CASE DETERMINATION, IT'S JUST IMPOSSIBLE.
I MEAN YOU DON'T -- THERE'S SO MANY DOWNSTREAM EFFECTS WHEN YOU INTERVIEW
ONE WITNESS, THEY -- IF YOU TELL THEM WELL DON'T TALK TO THESE 3 PEOPLE BECAUSE
THEY'RE GOING TO BE ALSO WITNESSES, THEN THEY TALK TO SOMEBODY ELSE, AND THAT
PERSON TALKS TO THOSE 3 PEOPLE, OR THERE STARTS TO BE A HUGE DISCUSSION IN THE
OFFICE AND AROUND THE WATER COOLER ABOUT HOW THIS COMPLAINANT OR THIS RESPONDENT
HAS BASED AND OTHER PEOPLE ARE WATCHING THAT WHO MAY ALSO HAVE A COMPLAINT
ARE GOING TO BE DISCOURAGED BECAUSE THEY DON'T WANT TO BE THE SUBJECT OF THAT KIND
OF ATTENTION, OR MAYBE OTHER WITNESSES OR OTHER PEOPLE IN THE WORK PLACE
WHO HEAR ABOUT IT WHO ARE NOT GOING TO NECESSARILY BE THE WITNESSES TO BE INTERVIEW
ED, MAY DECIDE THEY DON'T LIKE THE COMPLAINANT ANY MORE BECAUSE SHE MADE
THIS COMPLAINT. JUSTICE PIERRE-LOUIS: ASIDE FROM THE OTHER
WITNESSES THAT WE'VE BEEN DISCUSSION AGAIN WITH REGARD TO THE BREADTH OF THE
REGULATION, IT'S WITH REGARD TO OTHERS, JUST ALL OTHERS, LAWYERS, SPOUSES,
SIGNIFICANT OTHERS, I MEAN IT JUST IS REQUESTING THAT THESE EMPLOYEES NOT
TALK TO ANYONE ABOUT THIS. DONNA ARONS: BUT AGAIN IT'S A REQUEST,
AND IT WAS NEVER SCOMBENDED -- JUSTICE WAINER APTER: YOU
STARTED BY SAYING THAT THE WHOLE PURPOSE OF THE POLICY IS TO ENCOURAGE VICTIMS
TO COME FORWARD. AND THEN JUST NOW IN THE E E OC REPORT WHEN YOU CITED THAT YOU
ALSO SAID THAT THE E E OC SAYS THAT A VERY SMALL PERCENTAGE OF SEXUAL HARASSMENT
INCIDENTS ARE NOT REPORTED, SO THE POINT IS TO GOELT PEOPLE TO MAKE REPORTS --
DONNA ARONS: AND TO MAINTAIN THE INTEGRITY OF THE INVESTIGATION,
BUT GO AHEAD. JUSTICE WAINER APTER: IF SOMEONE WAS A VICTIM
OF SEXUAL HARASSMENT OR DISCRIMINATION AND TRIED TO REPORT IT TO AN INTERNAL OFFICER
AND THE FIRST THING THAT OFFICER SAID IS I'M REQUIRED TO REQUEST THAT YOU NOT
DISCUSS ANY ASPECT OF THE INVESTIGATION WITH OTHERS UNLESS YOU HAVE A LEGITIMATE
BUSINESS REASON TO DISCLOSE SUCH INFORMATION. HOW WOULD THAT PERSON KNOW THAT
THEY CAN TALK TO AN ATTORNEY, THAT THEY CAN TALK TO THEIR SPOUSE, THAT THEY
CAN FILE WITH THE E E OC, THAT THEY CAN FILE WITH D.C. R, WHY WOULD THAT PERSON
NOT THINK THAT THEY WERE BEING GAGGED, ESPECIALLY IF THE PERSON IS NOT A
N ATTORNEY AND WOULD THINK I DON'T KNOW WHAT A LEGITIMATE BUSINESS REASON IS AND
DO I ACTUALLY HAVE A LEGITIMATE BUSINESS REASON TO TALK TO AN ATTORNEY SINCE I
DON'T HAVE A BUSINESS, I'M JUST AN EMPLOYEE? I'M JUST NOT SURE HOW THE PERSON WHO IS
COMING FORWARD WITH AN ALLEGATION OF SEXUAL HARASSMENT AND DISCRIMINATION AND
THE FIRST THING THEY HEAR IS THIS, I'M REQUIRED TO REQUEST THAT YOU SHALL
NOT DISCUSS ANY ASSIST SUSPECT OF THIS INVESTIGATION WITH ANYONE UNLESS THERE IS
A LEGITIMATE BUSINESS REASON TO DISCLOSE SUCH INFORMATION, HOW ARE THEY
SUPPOSED TO KNOW ABOUT THEIR RIGHTS. JUSTICE FASCIALE: AND WHO DECIDES
WHAT'S LEGITIMATE AND HOW IS THAT CHALLENGED. DONNA ARONS:
LET RETRY TO ANSWER BOTH OF THOSE. I CERTAINLY UNDERSTAND THE CONCERN, THERE WAS
NEVER AN INTENT TO PREVENT SOMEONE FROM TALKING TO THEIR ATTORNEY OR FOR
REPORTING TO D.C. R, IN FACT THE REGULATIONS GIVE THE ADDRESS AND TELL YOU HOW
TO RORLT. JUSTICE WAINER APTER: EXCEPT THERE WAS Aly A GAGS
IN THIS CASE THAT THEY GOT VERY ANGRY WHEN THEY FOUND OUT THAT THE PLAINTIFF WAS
TALKING TO HER HUSBAND WHO WAS AN ATTORNEY. DONNA ARONS:
BUT THAT WAS UNDER THE OLD REGULATION. JUSTICE WAINER APTER:
BUT YOU SAID UNDER THE OLD REGULATION THERE WAS NEVER AN INTENT TO SILENCE
THE VICTIM, HOW IS THAT CONSISTENT WITH TELLING A VICTIM OF SEXUAL HARASSMENT, YOU CAN'T
SPEAK TO AN ATTORNEY, WE'RE NOW GOING TO FIRE YOU BECAUSE YOU SPEAK TO AN
ATTORNEY. DONNA ARONS: YOU PUT ME IN A LITTLE BIT OF A BAD
PLACE BECAUSE OBVIOUSLY WE DON'T AGREE WITH THAT ALLEGATION, THAT'S CERTAINLY THAT'S
GOING TO BE DECIDED IN THE LAW DIVISION, BUT I DO UNDERSTAND THAT EVEN
REQUESTING WHETHER SOMEONE CAN TALK TO AN ATTORNEY OR AN OUTSIDE AGENCY, AND AGAIN,
THIS IS A REGULATION KIND OF BROOD SWEEPINGLY ADDRESSED TO THE INVESTIGATOR,
THIS IS NOT INTENDED TO BE WHAT IS EXACTLY SAID TO THE WITNESSES AND THAT'S
-- I MEAN THE STATE COULD HAVE NOT HAD ANY REGULATION AND JUST CHANGED ITS
INVESTIGATORS, IT ALSO KMS DOWN TO WHAT IS THE INVESTIGATOR SAYING?
JUSTICE PATTERSON: IT SEEMS TO ME THERE ARE TWO THINGS, ONE IS THE CHILLING EFFECT
ON WITNESSES, AND THAT CAN CUT AGAINST THE CLAIM, I'M SURE, AND THE OTHER IS
THE POTENTIAL FOR COLLUSION, IN THE SENSE OF NOT NECESSARILY SOME GRAND CONSPIRACY
BUT PEOPLE WILL COMPARE NOTES AND MAYBE I KNOW NO, SIR SENTLY WILL CONFORM
TOLL WHAT THEY ARE OBSERVED, AND THAT CAN CUT BOTH WAYS, THESE CONCERNS DON'T
NECESSARILY FAVOR THE STATE OR THE COMPLAINANT. BUT HOW CAN IF IN FACT THERE
WERE A NARROWER WAY TO APPROACH THIS ISSUE THAT EFFECTS LESS SPEECH, HOW CAN
INVESTIGATORS BE TRAINED EFFECTIVELY TO UNDERSTAND WHAT COULD POTENTIALLY HAVE
A CHILLING EFFECT AND WHAT POTENTIALLY COULD BE AN INVITATION TO COLLUSION
WHICH OBVIOUSLY GOES TO THE HEART OF THE INTEGRITY OF THE INVESTIGATION?
DONNA ARONS: SO I THINK THAT WHAT THE STATE IS REALLY TRYING TO ACCOMPLISH
HERE IS TO PREVENT DISCUSSION -- WELL -- IT'S NOT TO PREVENTS, IT'S TO EXPLAIN
TO WITNESSES THAT THERE CAN BE PROBLEMS WITH WIDE SPREAD DISCUSSION ABOUT CLAIMS
IN THE WORK PLACE, BOTH ABOUT YOU DON'T KNOW EXACTLY WHERE IT'S GOING TO GO AS
FAR AS COLLUSION OR TAINTING OF EVIDENCE, IT CAN BE COMPLETELY UNINTENTIONAL BUT
SOMEONE MAY NOT REMEMBER AND THEN PEOPLE SAY OH DO YOU REMEMBER AND THEN MAYBE
THEY DO AND IT'S NOT ACCURATE, OR A RESPONDING PARTY CAN START LINING UP
THEIR WITNESSES, AND AGAIN THE SOCIAL RETALIATION, THAT'S ANOTHER CONCERN THAT
PEOPLE JUST SEE ALL THIS TALK AND NOTHING THAT RISES TO THE LEVEL OF LEGAL
RE PRIECHL BUT PEOPLE NOT GOING OUT FOR LUNCH, THINGS LIKE THAT, THEY WANT T AVOID
THAT. JUSTICE PATTERSON: MANY PEOPLE EVEN IF THEY HAVE A
LITTLE SNIPPET OF INFORMATION THEY MAY JUST WANT TO STAY THE HECK OUT OF IT AND
THAT CAN HURT THE COMPLAINANT IN A MAJOR WAY. DONNA ARONS:
ABSOLUTELY, EVERYBODY: THIS WHY THIS IS FRAMED THAT THE INVESTIGATOR MAKES A REQUEST
RATHER THAN MAKING IT A REQUIREMENT, BECAUSE IT THEN LEAVES IT TO THE
WITNESS TO DECIDE WE CAN TRY TO TRAIN THEM IF YOU ASK QUESTIONS, I WANT TO GET TO
JUSTICE FASCIALE'S QUESTION ABOUT WHAT IS A LEGITIMATE BUSINESS REASON,
SO THAT, THE REGULATION SAYS THAT IF WE RECOGNIZE ESSENTIALLY THE MEANING OF THE
REGULATION IS WE RECOGNIZE THAT THERE ARE PLENTY OF REASONS WHY YOU MAY NEED
TO DISCUSS NIS CLAIM AND THEY'RE LEGITIMATE WORK PLACE RELATED REASONS, WE'RE NOT
EVEN MAKING A REQUEST UNDER THOSE CIRCUMSTANCES. BUT IF YOU -- BUT IF
YOU DON'T HAVE ONE OF THOSE, YOU DON'T FEEL THAT YOU HAVE ONE OF THROWS, HERE'S
WHY WE'RE MAKING A REQUEST THAT YOU NOT TALK ABOUT IT IN THE WORK PLACE.
JUSTICE PIERRE-LOUIS: FROM AN EMPLOYEE'S PERSPECTIVE WS A LEGITIMATE BUSINESS
REASON. DONNA ARONS: SO AGAIN, THAT IS --
JUSTICE PIERRE-LOUIS: AND I'LL ADD TO THAT AGAIN WITH REGARD TO THE BREADTH OF
IT, IT'S RELATED TO NOT DISCUSSING THE INVESTIGATION WITH OTHERS RGS SO I
DON'T KNOW THAT THERE WOULD EVER BE A LEGITIMATE BUSINESS REASON TO DISCUSS THIS
REALLY SIGNIFICANT SEXUAL, POESHGS AL SEXUAL HARASSMENT OR DISCRIMINATION
CLAIM WITH YOUR SPOUSE. ONE WOULD THINK THAT THAT'S CERTAINLY WOULD OCCUR, WITH
EVERYONE, THAT YOU WOULD HAVE THIS DISCUSSION WITH YOUR SPOUSE OR PEOPLE CLOSE
TO YOU, SOMEONE WHO BELIEVES AND WHO IS ACCUSED IS MAKING -- BEING SUBJECTED
TO SOME SORT OF DISCRIMINATION IS NOT ALONE IN THIS, BUT WOULD THERE EVER BE A
LEGITIMATE BUSINESS REASON WHY SOMEONE WOULD NOT SPEAK TO THEIR SPOUSE OR
THEIR PARENTS OR THEIR FRIENDS WITH REGARD TO THIS, AGAIN IT'S THE BREADTH OF THE
REGULATION BECAUSE IT TALKS ABOUT EVERYONE. DONNA ARONS:
FIRST OF ALL, NO ONE -- IT'S NEVER GOING TO BE ADJUDICATED WHETHER SOMEONE HAD
OR DIDN'T HAVE A LEJ LEGITIMATE BUSINESS REASON BECAUSE THE LEGITIMATE BUSINESS
REASON DOESN'T RESTRICT THE SPEECH IT RESTRICTS WHETHER WE'RE MAKING THE REQUEST.
SO THERE'S NEVER GOING TO BE A JUDGEMENT AND IT'S SORT OF MORE AN UNDERLINING
OR A RECOGNITION BY THE STATE THAT THERE ARE PLACES, TIMES, FOR EXAMPLE, WHERE
WE'RE NOT EVEN ASKING FOR CONFIDENTIALITY. AND AGAIN, THIS REGULATION IS
-- CHIEF JUSTICE RABNER: SO FOELG UP ON THAT, IT'S ONLY THE
INVESTIGATOR'S DETERMINATION AS TO WHETHER THERE'S A LEGITIMATE BUSINESS REASON.
DONNA ARONS: NO THE INVESTIGATOR WILL SAY UNLESS YOU HAVE
A LEGITIMATE BUSINESS REASON OR A LEGITIMATE WORK REASON, WE ARE REQUESTING,
WE'RE NOT EVEN REQUESTING IT IF YOU FEEL YOU HAVE A LEGITIMATE BUSINESS REASON,
BUT IF YOU DON'T FEEL YOU HAVE A LEGITIMATE REASON, WE'RE MAKING THIS REQUEST. JUSTICE WAINER APTER: FOCUSING ON THE PERSPECTIVE OF AN
MY PARENT, MY BEST FRIENDS, I CAN STILL GO TO AN ATTORNEY, HOW TO AN EMPLOYEE
WOULD THAT EVER BEEN A LEGITIMATE BUSINESS REASON. DONNA ARONS:
AGAIN BECAUSE ALL WE'RE DOING IS MAKING A REQUEST, ALL THE INVESTIGATOR IS DOING
IS MAKING A REQUEST, AND I THINK WHAT IS MISSING HERE AND AS I STARTED TO SAY
BEFORE, THE STATE DIDN'T NEED TO EVEN HAVE THIS REGULATION, IT COULD JUST BE, YOU KNOW,
INSTRUCTING ITS INVESTIGATORS TO REQUEST KON CONFIDENTIALITY, IT'S MORE OR LESS
THE SAME THING, WE DON'T HAVE A RECORD TO SUGGEST, THE WAY THIS REGULATION HAD
BEEN APPLIED HAS BEEN PROBLEMATIC OR CONFUSING. JUSTICE WAINER APTER:
BUT THE RECORD IS THE REGULATION USED TO DIRECT UNTIL RECENTLY AN EMPLOYEE TO
SAY YOU MUST NOT SPEAK TO ANYONE PERIOD AND YOU CAN BE FIRED IF YOU SPEAK
TO ANYONE. AND YOU'RE RIGHT THAT THE C S C DID NOT HAVE TO PROMULGATE THIS REGULATION,
THEY COULD HAVE JUST SCRAPPED THE OLD REGULATION AND THEN HAD INVESTIGATORS
TELL EMPLOYEES WHATEVER THEY WANTED, BUT THEY CHOSE INSTEAD TO HAVE A REGULATION
THAT SPECIFICALLY SAYS TO THE EXTENDER PRACTICAL AND APPROPRIATE UNDER THE
CIRCUMSTANCES CONFIDENTIALITY SHALL BE MAINTAINED THROUGH THE THE INVESTIGATIVE
PROCESS AND THEN ALL INVESTIGATORS SHALL REQUEST THAT THE PERSON INTERVIEW
ED NOT SAY ANYTHING TO ANYONE EVER. DONNA ARONS: RIGHT, BECAUSE IN THE
INTEREST OF TRANSPARENCY TO TELL PEOPLE WHAT IS GOING TO HAPPEN DURING THE
INVESTIGATION AND TO BEEN SURE POTENTIAL VIG BE TIMS WHO MAY HAVE A STRONG INTEREST
IN IF I BRING THIS FORWARD SD GOING TO BE CONFIDENTIALITY, I THINK THIS
REGULATION HELPS THEM UNDERSTAND THAT. I DON'T THINK I FINISHED ANSWERING JUSTICE
PIERRE-LOUIS'S QUESTION, SO YOU ASKED WHETHER A LEGITIMATE BUSINESS REASON
WOULD BE TALKING TO A SPOUSE OR -- SO I THINK AN EXAMPLE, WE THINK A LEGITIMATE BUSINESS
REASON IS ANYTHING THAT WOULD FURTHER THE HEALTH, SAFETY, WELFARE OF THE
WORK PLACE. BUT AGAIN, IT'S NEVER GOING TO BE SOMETHING THAT'S ADJUDICATED, IT'S
JUST THAT IF YOU -- NO ONE IS GOING TO SAY OH, YOU DIDN'T HAVE A LEGITIMATE
REASON, THEREFORE YOU COULDN'T SPEAK, AND AS I SAID BEFORE, I THINK WE CAN -- THE
INTENT OF THE REGULATION IS TO MAKE CLEAR TO THE WITNESSES THAT THEY CAN SPEAK
IF THEY WANT TO, BUT HERE'S THE REASONS WHY THE GOVERNMENT, WHY THE STATE
WOULD LIKE YOU -- HERE'S SOME REASONS WE WOULD LIKE YOU TO CONSIDER BEFORE YOU
START SPREADING THIS IN THE WORKER'S COMPENSATION PLACE, HERE ARE SOME
THINGS WE THINK YOU SHOULD TAKE INTO ACCOUNT. THEY DON'T HAVE TO AGREE TO THAT
OR NOT AND THEY MAY DECIDE I WANDER TO TALK TO MY SDPOUS OF COURSE, BUT THE
INVESTIGATOR MADE SENSE I THINK I'M GOING TO NOT TELL MY BEST FRIENDS IN THE WORK
PLACE BECAUSE I KNOW, YOU KNOW, I DON'T WANT TO GET THINGS SPREAD AROUND AND I DON'T
WANT TO HAFRM THE COMPLAINANT WHO IS ALSO MY FRIEND OR WHATEVER.
CHIEF JUSTICE RABNER: MRAPS PART OF THE PROBLEM IS THE USE OF THE PHRASE LEGITIMATE
BUSINESS REASON. I HAVE MANY REASONS TO SPEAK WITH MY SPOUSE, A LEGITIMATE
BUSINESS REASON IS NOT ONE OF THEM, AND I DON'T FULLY KNOW WHAT A REASONABLE EMPLOYEE
WOULD TAKE HAD PHRASE TO MEAN. DONNA ARONS: AGAIN, MAYBE
WHAT NEEDS CLARIFICATION AND CAB CLARIFIED IN THE PAPERS THAT THE WITNESSES
SIGN IS THAT IT'S ALWAYS JUST A REQUEST, IT'S JUST A REQUEST, SO IF YOU DON'T HAVE
A LEGITIMATE BUSINESS REASON HOWEVER YOU WANT TO DEFINE THAT, YOU CAN STILL
IGNORE THE REQUEST, YOU CAN DECIDE I AM GOING TO TALK TO MY SPOUSE BUT I'M NOT
GOING TO TALK TO THIS PERSON. IT'S UP TO THE INDIVIDUAL. AFTER THEY HEAR, YOU
KNOW, AN EXPLANATION OF WHY IT MAKES SENSE TO NOT TALK. I
ALSO WANTED TO JUST ADDRESS I CAN'T REMEMBER WHO ASKED THE QUESTION ABOUT A TIME
LIMIT ON THE REQUEST. SO ORDINARILY, YOU KNOW, ONLY THE COMPLAINANT AND
THE RESPONDENT ARE INFORMED WHEN THE INVESTIGATION IS OVER. FOR CONFIDENTIALITY
REASONS, AGAIN, BECAUSE MOST COMPLAINANTS DON'T WANT ESPECIALLY IF THEIR
COMPLAINT IS NOT SUBSTANTIATED THEY DON'T WANT IT TO BE SPREAD AROUND THE OFFICE.
SO TO TELL WITNESSES, YOU KNOW, THIS REQUEST IS ONLY A REQUEST FOR SO LONG
AS THE INVESTIGATION IS TAKING PLACE WOULD I THINK REQUIRE SOMEHOW SOME KIND OF
NOTIFICATION TO THE WITNESSES THAT THE INVESTIGATION IS OVER AND THEN THE
NATURAL THING WOULD BE TO RUN TO SOMEBODY AND SAY SO WHAT HAPPENED. AND AGAIN,
THIS WHOLE -- PART OF THE PURPOSE OF TRYING TO MAINTAIN CONFIDENTIALITY IS TO KIND
OF DE-ESCALATE THE SITUATION IN THE WORK PLACE, REMEDY THE PROBLEM, WHICH IS
WHAT MOST COMPLAINANTS WANT. MOST COMPLAINANTS WANT CONFIDENTIALITY, THEY
WANTED PROBLEM RESOLVED AND NOT HAVE ANY KIND OF SIDE EFFECTS, RAMIFICATIONS,
YOU KNOW, THAT LAST IN THE WORK PLACE. THE WORK PLACE IS THEIR OWN LITTLE UNIQUE
EAST COMPANY SYSTEMS THAT CRAZY THINGS CAN HAPPEN WHETHER PEOPLE START TALKING
AND THAT MAKES POTENTIAL WITNESSES OR POTENTIAL PEOPLE WHO MIGHT WANDER TO MAKE
A COMPLAINT UNCOMFORTABLE TO COME FORWARD. JUSTICE PATTERSON:
CAN YOU ENVISION IF THERE IS A DIFFICULTY WITH PRACTICAL DON'T PEEK AT ALL BUT
FOR LEGITIMATE BUSINESS REASONS. ASSUME THERE'S SOME ISSUES WITH THAT FOR THE PURPOSES
OF MY QUESTION. CAN YOU ENVISION AN APPROACH THAT WOULD BE MORE DISCRETE
IN ITS DEFINITIONS, THE INVESTIGATOR INSTRUCTING THE WITNESS, MORE DISCRETE THE
DEFINITION OF WHAT COMMUNICATION SHOULD BE LIMITED SO AS TO MORE NARROWLY FOCUS
ON THE CONCERNS ABOUT CHILLING PEOPLES' WILLINGNESS TO SPEAK AND THE VERY CLOSELY
RELATED CONCERNS ABOUT THE INTEGRITY OF THE WITNESS DISCUSSIONS. DO YOU SEE
WHAT I'M SAYING? AND COULD THAT BE PHRASED, I HAVEN'T COME UP WITH, I'M JUST MAKING
NOTES JUST NOW AWAY TO PHRASE THAT, BUT KOP BE PHRASED IN A WAY THAT IS
INHERENT R HERNTSDLY LIMITING THE SCOPE OF THE REQUEST AND FOCUSING MOWER NARROWLY
ON THE VERY REAL CONCERNS, MOST OF WHICH ARE POTENTIALLY DISADVANTAGEOUS TO THE
COMPLAINANT BUT CAN EFFECT BOTH PARTIES THAT HAVE BEEN RAISED HERE IN TERMS
OF WHAT THE VALUE OF CERTAIN LEVELS OF CONFIDENTIALITY. DO YOU SEE WHAT I'M SAYING?
DONNA ARONS: I THINK SO. I MEAN AGAIN, THE LEGITIMATE WORK
PLACE CONCERN OR LEGITIMATE BUSINESS REASON WAS NOT INTENDED TO LIMIT ANYONE'S
SPEECH, IT WAS JUST I THINK INTENDED TO EMPHASIZE THAT IN SOME SITUATIONS
WE'RE NOT EVEN REQUESTING. I THINK THE STATE TRIED TO, WITH MAKING THIS WHOLE
THING A REQUEST, WAS TRYING TO BALANCE, YOU KNOW, THE FREE SPEECH RIGHTS OF
COMPLAINANTS AND RESPONDENT'S AND WITNESSES WITH THE FREECH SPEECH RIGHTS OF ALL
THE OTHER PEOPLE IN THE OFFICE WHO WE DON'T WANT TO CHILL COMING FORWARD.
JUSTICE PATTERSON: RIGHT. BUT IT IS A BLANKET -- IT IS TREATING ALL
COMMUNICATIONS THAT HAVE ANYTHING TO DO WITH THE INVESTIGATION AS IF THEY ARE OF
EQUAL MERIT AND AS IF THEY ARE OF EQUAL CONCERN. AND WHAT I'M SUGGESTING
IS THAT PERHAPS A THOUGHTFUL APPROACH COULD FOCUS THE ISSUE -- YOU KNOW OBVIOUSLY
THE CONCERNS ABOUT TALKING TO SOMEBODY'S SPOUSE, THE CONCERNS ABOUT TALKING
ABOUT -- TO ATTORNEYS OBVIOUSLY IS -- THERE ARE THINGS THAT ARE EASILY EXCLUDED,
BUT WHAT IS IT THAT WE'RE FOCUSSED ON HERE. HAVING BEEN IN A FEW WORK
PLACES IN MY TIME I THINK THERE IS AN ELEMENT OF TALKING ABOUT A SITUATION GOING
ON IN THE WORK PLACE IS A WHOLE LOT MUCH MORE INTERESTING THAN WORK ITSELF AND
THESE THINGS TAKE ON LIVES ON THEIR OWN WHERE NOBODY IS TALKING GOOD ANYTHING ELSE
IN THE WORK PLACE DURING THE PENDENCY OF THAT SITUATION AND IT'S VERY HARMFUL TO
THE PERSON WHO RAISED THE ISSUE AND IT'S VERY HARMFUL TO THE INTEGRITY OF
WHAT PEOPLE THINK WHAT HAPPENED, BUT SOMETIMES BY THE TIME WE'RE THROUGH PEOPLE
WHO HAD NO INFORMATION WHATSOEVER ARE FULLY INFORMED ABOUT SOMETHING. COULD
THE FOCUS OF WHETHER IT'S A REGULATION OR IT'S A PRACTICE OF THE COMMISSION BE
MORE DISCRETELY FOCUSSED ON THE CONCERNS ABOUT CHILLING THE ABILITY -- THE
WILLINGNESS OF PEOPLE TO COME FORWARD AND THE FOCUS ON INTEGRITY BECAUSE OF THE
COLLUSION CONCERN. DONNA ARONS: YES, I THINK THAT IS OBVIOUSLY
THE INTENT AND THAT IS WHY THE RULE MAKING METHOD TALKS ABOUT THE INVESTIGATOR
EXPLAINING TO THE PERSON THE REASONS. AND IF YOU WANT I MEAN I SUPPOSE THEY COULD
ALSO EXPLAIN -- IT'S A LITTLE TRICKY BECAUSE THE WORK PLACE, I WAS TRYING
TO THINK AS YOU WERE TALKING, COULD SOMETHING LIKE, YOU KNOW, PLEASE DON'T
DISCUSS -- FIRST OF ALL, WE'RE ASKING YOU NOT TO DISCUSS IT IN THE WORK PLACE
WOULD STILL RAISE CONCERNS ABOUT PEOPLE TRYING TO GET WITNESSES TO SUPPORT THEM
AND THINGS LIKE THAT, IT CUTS BOTH WAYS, BUT IT'S STILL JUST A REQUEST. BUT THE
WORK PLACE IN THE STATE IS HUGE. I MEAN PEOPLE KNOW PEOPLE WHO WORK IN
DIFFERENT DIVISIONS, DEPARTMENTS, EVERYWHERE, SO I DON'T -- I'D HAVE TO THINK
ABOUT EXACTLY HOW THAT COULD BE PHRASED. BUT I THINK THE INTENT IS CERTAINLY
NOT TO PREVENT ANYONE FROM TALKING TO THEIR HUSBANDS OR THEIR WIVES OR TALKING
TO A LAWYER OR REPORTING IT TO AN AGENCY. JUSTICE WAINER APTER:
BUT EVEN I DON'T UNDERSTAND THE REGULATION ITSELF, THE NOTICE OF THE PROPOSED
REGULATION, I THINK AUGUST 2019, THE NOTICE OF PROPOSED AMENDMENTS, WHICH WAS MORE
BROAD IN SETTING FORTH THE INTENTS AND IN THEORY WAS GETTING OUT WHAT THE ACTUAL
INTENT BEHIND THE REGULATION WAS DOES STILL SPECIFICALLY SAY THAT IT WANTS E E
O OFFICERS TO ADVISE ALL PERSONS INTERVIEWED OF WHY IT IS IMPORTANT "NOT TO
DISCLOSE ANY ASPECT OF THE INVESTIGATION TO OTHER PERSONS WITHOUT A LEGITIMATE
AND SUBSTANTIAL BUSINESS JUSTIFICATION." SO AGAIN IT IS NOT TALKING ABOUT WHAT
JUSTICE PATTERSON MENTIONED IN TERMS OF COLLUSION OR IN TERMS OF CHILLING
SOMEONE FROM COMING FORWARD, IT SAYS WHY IT IS IMPORTANT NOT TO DISCLOSE ANY ASPECT
OF THE INVESTIGATION TO OTHER PERSONS WITHOUT A LEGITIMATE BUSINESS REASON.
AS THE CHIEF JUSTICE EXPLAINED, HOW WOULD ANYONE KNOW TALKING TO THEIR SPOUSE WHAT
CONSTITUTES A LEGITIMATE BUSINESS REASON AND OF THE REGULATION ITSELF AND
WHAT IT WAS DOING, IN THON EVER WANTED ANYONE TO BE CHILLED FROM TALKING TO THEIR
SPOUSE OR A LAWYER OR FILING WITH THE E E OC OR D.C. R, ET CETERA.
DONNA ARONS: FIRST OF ALL THEY CAN ALWAYS ASK THE INVESTIGATOR WHEN THEY'RE
GIVEN THIS INSTRUCTION OR REQUEST, BUT ALSO THIS IS EASILY CURED BY -- AGAIN,
THIS REGULATION IS DIRECTED TO THE INVESTIGATOR AND IT'S BROAD, BUT IN
ITS IMPLEMENTATION -- REALLY THE CRUX IS HOW THS IMPLEMENTED AND WE DON'T HAVE A
RECORD OF HOW THIS REGULATION HAS BEEN I AM MREMTHED BEFORE THIS COURT,
THE C S C FULLY INTENDS TO HAVE IT IMPLEMENTED IN A WAY THAT ADDRESSES YOUR CONCERNS
THAT MAKES IT MORE CLEAR TO WITNESSES, CERTAINLY WE CAN ADD WHATEVER
INSTRUCTIONS TO THE INVESTIGATORS AS THIS COURT MAY SUGGEST, BUT IT'S -- THIS
REGULATION IS JUST DIRECTED TO THE INVESTIGATORS JUST TELLING THEM BASICALLY
JUST MAKE THIS REQUEST. HOW THEY MAKE THAT REQUEST REALLY SHOULD WAIT ANOTHER
CASE WHERE IF IT'S ACTUALLY FOUND THAT THE REQUEST IS BEING MADE IN A WAY THAT IS
COERCIVE OR CONFUSING TO THE INDIVIDUAL. JUSTICE WAINER APTER:
BUT WE DO OF COURSE HAVE OTHER EXAMPLES OF SINCE THE REGULATION SOMEONE BEING
TOLD YOU CAN'T SAY ANYTHING TO ANYONE PERIOD, AND THAT'S WHY THERE WERE MOTIONS
TO REOPEN THE RECORD AND TO SUBMIT THAT AND THE STATE WAS OPPOSED TO THOSE AND
WAS SAYING YOU KNOW THIS IS NOT RELEVANT AT ALL, SO IT SEEMS LIKE IT'S KIND
OF TRYING TO HAVE IT BOTH WAYS. DONNA ARONS: WELL THE ONE THAT GOT
ADMITTED IN THE RECORD WAS -- I MEAN ASSUMING THAT ALL THE FACTS ARE TRUE,
WHICH AGAIN THIS IS A COMPLAINT AND I FORGET LAW DIVISION OR WHEREVER, IT LOOKS
LIKE THEY WERE APPLYING THE OLD REGULATION, THE OLD VERSION OF THE
REGULATION, YOU KNOW, THEY WERE USING THE OLD FORMS 6789.
JUSTICE WAINER APTER: AFTER THE NEW REGULATION WENT INTO EFFECT.
DONNA ARONS: AND AS I THINK I SCOMPLAVEND MY SENSE OF PROBABLY WHY THAT HAPPENED,
WHY THE C S C DID NOT UPDATE THEIR WEBSITE AS QUICKLY AS POSSIBLE, BUT I THINK
THIS WHOLE THING IS MORE OF AN AS APPLIED CHALLENGE TO SEE HOW IT'S ACTUALLY BEING
IMPLEMENTED. THIS REGULATION ON ITS FACE IS NOT TRYING TO RESTRICT LEGITIMATE
ANY KIND OF SPEECH, IT'S JUST MAKING THIS REQUEST, IT'S TRYING TO EXPLAIN WHAT
THE STATE'S REASONS ARE FOR REQUESTING CONFIDENTIALITY AND THEN LEAVING IT UP
TO THE WITNESS. THE WITNESS MAY SAY YOU'RE GIVING NIECE THESE REASONS AND THE
REASONS HAVE TO DO WITH NOT CLUED GO, MAINTAINING THE INTEGRITY OF THE
INVESTIGATION, AND I'M GOING TO TALK TO MY SPOUSE ABOUT IT, OBVIOUSLY YOUR REASONS
DON'T APPLY TO ME, I'M JUST GOING TO GO TALK, THAT'S FINE. I MEAN PART OF THE
REASON IN EXPLAINING ALLOWS THE WITNESS TO DECIDE WHETHER OR NOT THEY CHOOSE
TO AGREE TO THE REQUEST OR NOT. CHIEF JUSTICE RABNER: TWO
QUICK POINTS BEFORE WE TRY TO REACH THE END OF THE AGGRAVATE. CAN YOU
REPRESENT -- THERE'S BEEN A DISCUSSION ABOUT THE IMPORT OF SECTION K, CAN YOU REPRESENT
THAT AGENCIES CANNOT AND WILL NOT RELY ON IT AS A BASIS OF DISCIPLINE WITH
RESPECT TO SECTION J. DONNA ARONS: YES, THIS REQUEST FOR
CONFIDENTIALITY IS JUST A REQUEST, IT'S NOT A STANDARD THAT CAN BE ENFORCED --
CHIEF JUSTICE RABNER: I ACCEPT YOUR REPRESENTATION, THE SAME QUESTION
WITH RESPECT TO SECTION D AND THE LANGUAGE QUOTED AT THE END THERE.
DONNA ARONS: YES, THAT IS NOT THE INTENT OF THE REGULATION. JUSTICE
PATTERSON: THESE ARE NOT HAMMERS THAT ARE USED IN THE SETTING THAT WE'RE TALKING
ABOUT, THOSE ARE FOR OTHER APPLICATIONS. DONNA ARONS: RIGHT.
CHIEF JUSTICE RABNER: WHAT'S YOUR UNDERSTANDING OF THE LANGUAGE
IN THAT LAST SECTION D, FAILURE TO COOPERATE. DONNA ARONS:
THAT WOULD BE REFERRING TO SOMEONE THE INVESTIGATOR CALLS THEM IN AND TELLS THEM
I WANT TO TALK TO YOU ABOUT WHAT HAPPENED ON SUCH AND SUCH A DAY AND THEY
SAY I'M NOT TALKING TOWER, GOOD BYE. THEY HAVE TO -- THEY HAVE TO COOPERATE WITH
THE INVESTIGATION IN THAT WAY. JUSTICE PATTERSON: IS THAT
THE RESPONDENT OR ANYBODY. DONNA ARONS: ANYBODY. PEOPLE
ARE REQUIRED TO, I MEAN THEY MAY NOT REMEMBER OR MAY NOT HAVE ANY
INFORMATION TO GIVE, AND I GUESS THE RESPOND DEVENT COULD --
JUSTICE PATTERSON: SO IF SOMEBODY IS POTENTIALLY A WITNESS BUT DOES NOT WANT TO
GET INVOLVED, THERE ARE RAMIFICATIONS FOR THEM IN TERMS OF EMPLOYMENT?
DONNA ARONS: WELL, THERE COULD BE, IT SAYS FAILURE TO COOPERATE MAY RESULT
IN DISCIPLINARY ACTION, I THINK IT WOULD GEND ON THE NATURE OF THE SITUATION.
CHIEF JUSTICE RABNER: THAT'S NOT PART OF THIS CASE, IT IS
UNRELATED TO SUBSECTION J AND YOUR REPRESENTATION ON BEHALF OF THE AGENCY IS
THAT THAT SHOULD NOT BE OF CONCERN. DONNA ARONS: CORRECT.
CHIEF JUSTICE RABNER: ANYTHING ELSE YOU'D LIKE TO ADD?
DONNA ARONS: UNLESS THERE WAS SOME -- I FEEL LIKE I WAS TRYING
TO ANSWER SOME QUESTIONS, I MAY NOT HAVE COMPLETELY. CHIEF
JUSTICE RABNER: YOU DID JUST FINE. DONNA ARONS: THANK YOU. WE WOULD
JUST SAY THAT THE APPELLATE DIVISION'S DECISION SHOULD BE AFFIRMED. THANK
YOU VERY MUCH. THE COURT: MR. DWYER, VERY BRIEF REBUTTAL,
PLEASE. ANDREW DWYER: THANK YOU CHIEF JUSTICE RABNER, I WILL
TRY TO BE VERY FAST. I SUBMIT THAT FOR THE REASONS WE SET OUT PARTICULARLY WITH
RARTD TO D THAT IT IS GOING TO BE RECEIVED BY EMPLOYEES AS A REQUIREMENT,
NOT AS A REQUEST. AND I WOULD RESPECTFULLY COMMEND THE COURT TO LOOK AT OUR RIS
TAKING OF THE STARE CYCLE CASE WHICH I THINK IS OBVIOUSLY NOT BINDING ON THE
COURT BUT I THINK IT PROVIDES A REAL WORLD UNDERSTANDING OF WHAT'S GOING ON AND
IT SAYS YOU HAVE TO LOOK AT THIS AS THE EMPLOYEE WHO IS DEPENDENT ON THE EMPLOYER
FOR THEIR STANDARD OF LIVING AND HOW IT IS COMING FROM THEIR PERSPECTIVE
NOT THE EMPLOYER'S PERSPECTIVE SO THE FACT THAT THE EMPLOYER IS TELLING YOU DON'T
WORRY, IF WE TELL YOU TO NOT -- IF WE TELL YOU WE DIDN'T WANT YOU TO SHARE
INFORMATION WITH ANYBODY ELSE BECAUSE IT WILL UNDERMINE THE INTEGRITY OF THE
INVESTIGATION AND FAILURE TO KWOP RALT IS GROUNDS FOR TERMINATE, DON'T WORRY WE'RE
NOT ACTUALLY GOING TO DO ANYTHING TO SOMEBODY. JUSTICE
SOLOMON: BUT THAT'S NOT WHAT THEY'RE SAYING, THAT'S NOT WHAT THEY MEANT, THE
REGULATION IS IT DOESN'T SAY WE COULD TERMINATE BUT DON'T WORRY WE'RE NOT GOING
TO DO THAT, IT'S THAT IT DOESN'T SAY ANYTHING TO THAT EFFECT, IT REQUESTS IT
WITHOUT A SUGGESTION OF DISCIPLINE, D AND K DO NOT APPLY, IT'S NOT WHAT YOU'RE
SAYING, I UNDERSTAND WHAT YOU'RE SAYING THAT A REQUEST IS TAKEN AS A COMPLAND,
BUT THAT LAST SENTENCE IS NOTHING LIKE THE #578DED REGULATION OR WHAT THE
STATE IS SUGGESTING. ANDREW DWYER: I UNDERSTAND WHAT THE STATE
IS SUGGESTING WHAT I'M SAYING THE COURT #14UD LOOK AT IT FROM THE STANDPOINT
OF THE EMPLOYEE, AND THE EMPLOYEE WILL PERCEIVE IT AS A XHND.
JUSTICE SOLOMON: I UNDERSTAND. JUSTICE PATTERSON: QUESTION FOR
YOU MR. DWYER, IT SEEMS TO ME JUST RELATED TO WHAT YOU'RE TALKING ABOUT
WITH YOUR COLLEAGUE, IT SEEMS TO ME FROM 4 SOMEONE IN YOUR CLIENT'S POSITION THERE IS
A LOT TO BE LOST BY A SITUATION WHERE IFSH FROM THERE WORK PLACE IS DISCUSSING
THIS, FOR LOTS OF REASONS, NOT JUST THEIR FUTURE AND THAT EMPLOYMENT SITUATION,
BUT THE IMPACT ON THE VERY CLAIM THAT THEY ARE THINKING OF ASSERTING. HOW,
IF THIS COURT WERE TO GIVE GUIDANCE TO THE AGENCY AND FOCUSING ON THE DIRECTION
OF THIS REGULATION WHICH IS TOWARD HOW INVESTIGATORS SHOULD CONDUCT THEIRSELVES
IN HANDLING THIS, HOW CAN THE INTEGRITY OF THE INVESTIGATION, NOTHING BEING
PERFECT, BE BEST PROTECTED, TO ASSIST PEOPLE IN YOUR CLIENT'S POSITION AS WELL AS
OTHERS WHO ARE INVOLVED. ANDREW DWYER: SO I THINK IT'S BEST
PROTECTED BY STRIKING THE PROVISION THAT WE'RE CHALLENGING BUT ALLOWING
THE GOVERNMENT AGENCIES TO HANDLE THESE ISSUES ON A CASE BY CASE BASIS. AS IT
PRESENTLY EXISTS, THE REGULATION PROVIDES NO PROTECTION AGAINST THE CONCERNS
THAT YOU JUST RAISED, JUSTICE PATTERSON, BECAUSE THERE'S NOTHING IN THE REGULATION,
AT LEAST ACCORDING TO WHAT THE STATE HAS JUST REPRESENTED TO THIS COURT
TWO MINUTES AGO, THAT WILL RESULT IN ANY PUNISHMENT OF ANYBODY WHO DECIDES TO GO
AROUND THE OFFICE TELLING EVERYBODY ABOUT WHAT THE COMPLAINT WAS, WHAT WAS
SAID, WHAT'S THE RESPONSE OF THE ACCUSED, AND NOTHING IN THIS REGULATION STOPS
THAT FROM HAPPENING AND THE GENERAL CONFIDENTIALITY PROVISIONS THAT ARE THE
FIRST PART OF SUBPARAGRAPH J ALL ALLOW EXCEPTIONS, THEY ALL ALLOW FOR THE
STATE, WHENEVER IT FEELS IT'S NECESSARY, TO BREACH CONFIDENTIALITY, SO THERE IS
NO PROTECTION UNDER THE CURRENT REGULATION, I CAN'T EMPHASIZE THAT
ENOUGH. THERE'S NO PROTECTION UBTD THE CURRENT REGULATION FOR THE CONCERNS THAT
YOU'RE IDENTIFYING. JUSTICE PATTERSON: SHOULD THERE BE, SHOULD
THERE EVER BE RAMIFICATIONS FOR AN EMPLOYEE WHO WAS ASKED NOT TO SAY A
PARTICULAR THING TO A PARTICULAR PERSON, I'M NOT TALKING ABOUT THE WORLD OF
INFORMATION, AND DISCLOSES THAT, GIVEN THESE SORT OF OBVIOUS IMPACT THAT
THAT CAN HAVE ON PEOPLE. ANDREW DWYER: SURE, IF THERE WAS A SPECIFIC
SITUATION WHERE AN EMPLOYEE DID SOMETHING TO DAMAGE THE INTEGRITY OF THE
INVESTIGATION, GETTING SOMEBODY TO DESTROY EVIDENCE, THROAT NING A WITNESS TO BE
SILENT, OF COURSE THAT CAN RESULT IN RAMIFICATIONS, AND THAT'S IF I MAY,
BECAUSE YOU SAID SOMETHING VERY SIGNIFICANT WHEN YOU WERE TALKING TO MY COLLEAGUE
MISS MURRAY, YOU USED A PHRASE THAT I WROTE DOWN, THAT IT CAN BE A VERY FINE
LINE FIGURING OUT HOW TO DEAL WITH THE COMPETING INTSZ TO CONFIDENTIALITY ON THE
ONE HAND AND ALLOWING PEOPLE TO SPEAK FREELY ON THE OTHER HAND BECAUSE I BELIEVE
CHIEF JUSTICE RABNER IS RIGHT, THAT THE REQUEST IS A REQUEST TO THE EMPLOYEE
TO GIVE UP THEIR LEGALLY PROTECTED RIGHT TO SPEAK FREELY. THE PROBLEM IS THAT
THE REGULATION YOU HAVE IN FRONT OF YOU IS A VERY BLUNT INSTRUMENT, IT CHILLS
PROTECTED SPEECH, BUT IT DOES NOT HELP SOLVE THE PROBLEMS THAT YOU ARE CONCERNED
ABOUT. THE SOLUTION TO THAT IS TO STRIKE DOWN THE PROVISION THAT CLEARLY
HAS THE EFFECT OF CHILLING PROTECTED SPEECH AND INDEED, YOU KNOW, MISS ARONS EVEN
SAID THINGS LIKE WELL WE'RE TRYING TO GET PEOPLE TO TALK LESS, PEOPLE ARE
TALKING TOO MUCH, WELL THAT TALKING IS PROTECTED SPEECH. SO THIS IS A VERY BLUNT
INSTRUMENT, IT IS NOT SOMETHING DESIGNED TO REMEMBER A SITUATION THAT REQUIRES
A FINE LINE. JUSTICE SOLOMON: WHAT IF ANY CONSIDERATION
SHOULD BE GIVEN TO AND WHAT THE STATE REPRESENTS OR THE ATTORNEY GENERAL
REPRESENTS THAT THIS IS DIRECTED TOWARD THE INVESTIGATOR, BUT THE REASON TSDZ
DIRECTED TOWARDS THE INVESTIGATOR IS BECAUSE FEAR OF DISCLOSURE, I KNOW
THIS IS TRUE OF THE CRIME OF RAPE AND SEXUAL ASSAULT, AND IS OFTEN THE SUBJECT OF
LAD CLAIMS, THE NUMBER ONE REASON WHY VICTIMS DO NOT DISCLOSE IS FEAR OF PUBLIC
DISCLOSURE. THE EXTENT THAT THIS REGULATION IS OUT THERE TO TELL
VICTIMS THAT CONFIDENTIALITY ESSENTIALLY THE WAY IT'S PHRASED IF YOU WANT IT TO BE,
WHAT CONSIDERATION IS GIVEN TO LOSING THAT ASPECT OF THE REGULATION, DOES THAT
FACTOR INTO THE ANALYSIS AT ALL? IN OTHER WORDS, IF WE DON'T TELL EVERYBODY WHO
HAS BEEN A VICTIM THAT THERE IS CONFIDENTIALITY TO WHAT YOU COMPLAIN
OF, THEY'RE LIKELY NOT TO DISCLOSE AND THEREFORE THE INTEREST IN STAMPING OUT
DISCRIMINATION, SEXUAL ASSAULT, SEXUAL -- IMPROPER SEXUAL CONDUCT IN THE WORK
PLACE WILL NOT BE PROMOTED, WHAT CONCERN WOULD YOU GIVE THAT.
ANDREW DWYER: SO RESPECTFULLY JUSTICE SOLOMON THE REGULATION AS IT STANDS SDNTH
DO ANYTHING TO PROTECT THAT INTEREST ALL IT SAYS IS THAT THE STATE WILL TRY
TO MAINTAIN CONFIDENTIALITY TO THE BEST OF THEIR ABILITY -- JUSTICE
SOLOMON: I'M ASKING YOU YOU'RE SAYING WIPE IT OUT, CASE BY CASE BASIS, WHAT STATEMENT
IS THERE OUT THERE THAT RAISES THE POSSIBILITY THAT YOUR COMPLAINT IF YOU
RAISE IT WILL BE CONFIDENTIALITY, WHAT SHOULD THE STATE DO.
ANDREW DWYER: RESPECTFULLY THAT'S NOT MY POSITION TO WIPE IT OUT, IT'S THE LAST
SENTENCE OF SUBPARAGRAPH J, THAT'S ALL WE'RE TALKING ABOUT WHICH IS
ELIMINATING THE PROVISION WHERE THE INVESTIGATOR TELLS SOMEBODY INCLUDING THE
PLAINTIFF, WE WOULD LIKE YOU TO ZIP IT. THE FIRST PART OF PARAGRAPH J WHICH SAYS
WE WILL TRY OUR BEST TO MAINTAIN CONFIDENTIALITY, WE HAVEN'T CHALLENGED
THAT EVER IN THIS CASE, SO IF THAT IS WHAT THE STATE IS SAYING, WE HAVE THESE PROVISIONS
RE A SHORES PEOPLE THAT THEIR COMPLAINTS WILL BE KREETED WITH CONFIDENTIALITY
TO THE EXTENT POSSIBLE, THAT REASSURANCE IS STILL GOING TO BE THERE EVEN IF YOU
RE EVALUATE THE LAST SECTION OF PARAGRAPH J. THAT DOESN'T CHANGE AT ALL,
WHAT WE'RE SEEKING TO PREVENT IS THE CHILLING EFFECT OF THIS PROTECTED SPEECH.
AND THE THIS IS DIRECTED TO THE INVESTIGATORS, NOT THE WITNESSES, THAT'S
NOT TRUE, THE WOITSDZ ARE GIVEN THIS FORM AND ASKED TO SIGN IT, SO THIS IS CLEARLY
DIRECTED AT THE WITNESS. JUSTICE PATTERSON: YOU THINK FREE SPEECH
IS BETTER PROTECTED BY A REGULATION THAT DOESN'T -- I THINK WHAT WE'RE HEARING
IS THAT 49 STATES JUST HAVE TRAINING, IS FREE SPEECH AND THE RIGHTS OF PEOPLE WHO
MAY HAVE COMPLAINTS IN THE WORK PLACE AND WANT TO ASSERT THEM BEST PROTECTED
BY LET'S LEAVE IT WITH TRAINING OF INVESTIGATORS AND NOT HAVE A REGULATION AT
ALL. ANDREW DWYER: WELL THERE IS A REGULATION.
JUSTICE PATTERSON: I UNDERSTAND THAT, AND WE HAVE A CONSTITUTIONAL ISSUE BEFORE
US, I GET THAT, BUT I'M HEARING SOMETHING THAT SURPRISES ME A LITTLE BIT AND
THAT IS THESE OTHER STATES HAVE A BETTER APPROACH, IT'S CASE BY CASE, IT'S IN
THE TRAINING, AND IN A WORLD IN WHICH YOU WANT TO ENCOURAGE PEOPLE TO COME FORWARD
AND YOU WANT TO ENCOURAGE PEOPLE TO BE HONEST AND TO SPEAK FREELY, PERHAPS
LEAVING IT IN THE MIDST OF WHAT INVESTIGATORS ARE TRAINED TO DO IS NOT THE
MOST PRACTICAL APPROACH. ANDREW DWYER: I DISAGREE WITH YOU
JUSTICE PATTERSON AND THIS IS WHY. WHAT WE ARE PROPOSING IS THAT THE FIRST
PART OF SUBPARAGRAPH J REMAINS AS IS, AND THAT PROVIDES THE REASSURANCE TO COMPLAINANTS
THAT WHEN THEY GO AND COMPLAIN ABOUT SOMETHING, THE STATE IS GOING TO DO
ITS BEST NOT TO SPREAD IT ALL OVER THE WORLD AND IF THE COMPLAINANT WANTS TO KEEP
IT SECRET, THE COMPLAINANT CAN. SO THAT DOESN'T CHANGE. WHAT WE ARE OBJECTING
TO IS THE LAST SENTENCE IN SUBPARAGRAPH J WHICH SAYS THAT THE -- IT SAYS THAT THE
INVESTIGATOR WILL SAY TO THE COMPLAINANT WE WOULD LIKE YOU NOT TO TELL ANYBODY
ABOUT THIS, ANYBODY. NOT YOUR LAWYER, NOT YOUR SPOUSE, NOT ANOTHER PERSON WHO
YOU BELIEVE HAS ALSO EXPERIENCED HARASSMENT BY THE SAME HAR RAFR, THAT'S WHAT
WE'RE OBJECTING TO, AND I DON'T THINK THAT WHAT WE'RE DOING WOULD IN ANY
WAY UNDERMINE WHATEVER REASSURANCE THAT EXISTS FOR EMPLOYEES THAT THEY WILL NOT
SUFFER ANY KIND OF RETALIATION. MAY I SAY ONE THING ABOUT R M OR AM I TESTING
THE COURT'S PATIENCE. THE COURT: YES AND Y.
ANDREW DWYER: MY ONLY POINTER, CHIEF JUSTICE RABNER IS THAT THE COURT DID STRIKE
DOWN THE BLANKET PROVISION IN RULE 1:29-A AND IT DID NOT ROON STATE SOME
OTHER VERSION OF IT. IF YOU LOOK AT 1:20-9 A IT SAYS NOTHING ABOUT THE ETHICS
VITHSD TELLING THE GRIEVANT OR ASKING THE GRIEVANT OR SUGGESTING TO THE GRIEVANT
THAT THEY HAVE TO BE QUIET, IT DOESN'T SAY THAT ANY MORE, IT'S GONE. AND YET OUR
ETHICS SYSTEM STILL WORKS, SO THAT'S WHAT WE'RE ASKING FOR, WE'RE JUST ASKING
TO ELIMINATE THIS ONE PROVISION THAT TELLS PEOPLE THAT THEY WOULD VERY MUCH LIKE
IT IF THEY WOULD ZIP IT AND NOT TELL ANYBODY ANYTHING, AND 30 SECONDS?
CHIEF JUSTICE RABNER: YES. ANDREW DWYER: THIS COURT HAS
SAID MANY TIMES THAT DISCRIMINATION IS A CANCER, YOU DON'T GIVE GET RID
OF A CAN SORRY BY PREVENT R TENDING IT'S NOTE THERE OR NOT TALKING ABOUT OR SWEEPING
IT UNDER THE RUG. JUSTICE PATTERSON: BUT TLSH COUNTERVEILING
SITUATIONS WHERE SOMEONE COULD BE CHILLED INCOMING FORWARD UNLESS THERE'S SOME
CONFIDENTIALITY. ANDREW DWYER: THAT LEVEL OF CONFIDENTIALITY
IS ALREADY THERE IN THE PART OF REGULATION THAT WE'RE NOT CHALLENGING, SO YOU GET
RID OF CANCER BY EXPOSING IT TO THE LIGHT OF DAY AND AGGRESSIVELY ATTACKING IT,
THE LEGISLATURE THREE SEPARATE TIMES, AMENDMENTS TO 10 COLON 20-19, THAT
SPECIFICALLY SAYS THAT AGREEMENTS THAT LIMIT THE ABILITY TO DESCRIBE THE DETAILS
OF DISCRIMINATION ARE AGAINST PUBLIC POLICY, VOID AND UNENFORCEABLE.
CHIEF JUSTICE RABNER: THANK YOU. THANK YOU TO ALL COUNSEL FOR THE VERY
FINE ARGUMENTS, AND MR. DWYER FOESHTD RECORD YOU HAVE NOT TRIED ANY PERSON'S
PATIENCE, THAT IS FLIP AND TO THE SIDE. CHIEF JUSTICE RABNER: WE'LL
TAKE THE MATTER UNDER ADVISEMENT.