Orange public unable to get copy of latest FBI subpoena through OPRA

ORANGE, NJ — The legal policy set by former Orange City attorney Eric Pennington that prohibits all correspondence and public inquiries about the ongoing Federal Bureau of Investigation probe into allegations of wire fraud, misuse of federal funds and other alleged crimes by members of Mayor Dwayne Warren’s administration appears to still be in effect.

According to city clerk Joyce Lanier and business administrator Chris Hartwyk, the city and Warren’s administration received another subpoena from the FBI requesting that select officials and employees appear at the Peter Rodino Federal Building in downtown Newark on July 9 at 10 a.m.

“We have no comment on the subpoena question,” Hartwyk said July 15.

City spokesman Keith Royster said he didn’t know anything about the July 9 subpoena.

“No subpoena has been sent to legal,” Royster said July 15. “Is your information accurate?”

While Lanier did confirm the existence of the July 9 FBI subpoena, due to Pennington’s gag order policy regarding the city’s handling of the FBI probe, she said her office does not have a copy of it on file at City Hall, although she is the “official keeper of records” for Orange, according to state law.

“Subpoena aren’t public records at this point,” Lanier said July 15. “It’s in the court’s hands now. I’m in court waiting for the judge to decide if it’s a public record or not.

“The city attorney has taken the legal position that he reserves the right to withhold documents related to ongoing legal matters from the Clerk’s Office even though they are a part of the public record,” Lanier had said June 11, 2018, after it was discovered the FBI had issued another subpoena to Orange and Warren’s administration which Pennington and his department hadn’t shared. “According to the state of New Jersey, the municipal clerk is the official keeper of records for any municipality in the state and that includes legal documents and correspondence.” 

Laner said she was eventually provided with a copy of the April 2018 subpoena and that members of the public are able to obtain copies through the Open Public Records Act.

According to former Irvington police Chief Michael Chase, who worked in law enforcement for 42 years before retiring in 2015, Pennington’s policy of withholding subpoenas from the city clerk violates the spirit of OPRA.

“That’s an attempt to keep it out of public purview,” Chase said. “If the public hears that X and Y are being investigated then people are going to want to know why. People aren’t stupid. Pressure comes when the public finds out that their public servants might not be acting in a way that they approve of. If I don’t know anything that’s going on how can I ask you questions to hold you accountable?” 

Former At-large Councilman Rayfield Morton agreed with Lanier that Pennington’s gag order policy is preventing her office from doing its job.

“People need to know or at least be able to find out how their tax money is being spent by their so-called elected representatives,” Morton said July 13. “This FBI stuff has been going on for three years and the city hired a very expensive law firm to represent Orange and the people under investigation. But now nobody wants to talk about it. They’re trying to keep the public in the dark about the FBI case but the OPRA law is supposed to be about sunshine shining light on the things that are done in the dark.”