Judge fights county, The Review. At issue: Release of 'inappropriate material' on Smith's computers
Bradford County President Judge Jeffrey Smith has hired a private attorney to fight The Review's effort to inspect the non-judicial content of a copy of the hard drives on computers he used.
County officials once described the contents as including "inappropriate" material downloaded from the Internet that contaminated the county's computer network.
Furthermore, according to the judge's Scranton attorney, the copy, now in the possession of the county's attorneys, must either be surrendered to the judiciary or "destroyed promptly."
The county's computer-use policy in effect at the time prohibited users from irresponsible recreational surfing on the Internet, and provided for penalties up to and including discharge. But, whether the judge, as a separate elected official, and the judiciary, were bound by the policy is in question. There is no public record of any discipline in the case, despite the county's insistence it has "zero tolerance" for such use. The judge since has agreed to a revised computer-use policy banning such computer use, Bradford County commissioners have said.
The downloaded material included sexually-oriented material, according to sources who either viewed the material or were briefed about its contents. But the material was not illegal, the county's attorneys have concluded, according to the sources. Viruses from the downloaded material infected the county computer system and "totally contaminated" it, county officials said at the time.
At some point, according to two well-informed government sources, the issue was brought to the attention of the state Judicial Conduct Board. One of the sources, who declined to be identified, said an investigator from the board did make local contact regarding the matter at least twice, the most recent being this summer. Board policy prohibits its officials from either confirming or denying whether an investigation has been opened. George Delaney Jr., a Harrisburg-based investigator for the board, declined comment when contacted by The Review.
Other efforts by The Review to get at the material and illuminate the behind-the-scenes maneuvering over the issue by public officials repeatedly has met with resistance. Therefore, this past August, The Review, under the state's new open records law, filed a formal right-to-know request with the county commissioners seeking access to the "inappropriate material." All three county commissioners - Chairman Mark Smith, John Sullivan and Doug McLinko - said they were willing to disclose the contents to The Review if their attorneys approved.
Judge Smith, however, has gone to considerable lengths to prevent the contents from being divulged. At the time the material was discovered in 2007, he engaged in efforts to influence how the matter would be handled, and would not discuss it with The Review for publication. "It's a personnel matter..." he said at the time. Most recently, he did not respond to a message left with his staff seeking comment over and above what his attorney has said.
Following The Review's recent right-to-know request, the judge sought support from the Administrative Office of Pennsylvania Courts, according to sources involved in the matter. Art Heinz, a spokesman for the AOPC, declined to comment. "I am unable to provide any information to you regarding any conversation a jurist may have had with our legal department as a matter of our office policy," he told The Review.
At some point, the judge hired his own attorney from a highly respected Scranton law firm.
Committed to legal action
In a Sept. 18 letter from the judge's Scranton attorney to the county's special counsel, the judge was described as "committed" to bringing legal action to defend his rights of privacy and to protect his reputation, as well as to preserve the constitutional principle of separation of powers between the judiciary and the executive branches of government.
The judge's actions have raised concerns among county commissioners for their own personal liability, as well as that of the county, and the cost of any protracted litigation. After discussing the advice of their special counsel, and the judge's demands, the county denied The Review's right-to-know legal request for access to the "inappropriate" material.
The Review is evaluating the developments and weighing its options.
In August of 2007, The Review broke the story that two laptop computers - a state computer then currently used by Judge Smith and a county computer formerly used by him - were inspected by county computer personnel. County commissioners later issued a statement that confirmed "inappropriate use or access of a county computer." In a separate statement, county Human Resources Director Teresa Jones said the inappropriate material was from "mainstream retail sites" and contained "no pornography."
However, the statements were limited to only the county computer, apparently because the county did not have jurisdiction over the state computer used by the judge. Nevertheless, the "inappropriate" material contained viruses that "totally contaminated" the county computer network, according to Nancy Schrader who at that time was commissioner chairperson.
A broader context
The Review's formal request to gain access to the computer CD in the county's possession, which officials have said contains a copy of the contents of the computer hard drives in question, was part of a still-in-the-works and as-yet-unpublished project underway at The Review. The scope of the project is to examine the professional, business and private relationships among certain public officials and public figures who have a high profile in the courthouse.
On Aug. 24, The Review wrote the following to Commissioner Chairman Smith:
"This is a formal written request for information from Bradford County government pertaining to the inquiry or inquiries conducted by county personnel into what was publicly stated by the county on or about Aug. 30, 2007 as the discovery of 'inappropriate' material on a computer reported by Magistrate Judge Jonathan Wilcox, as well as any expressed concern or inquiry into a separate computer used about the same time by President Judge Jeffrey A. Smith ... (T)he above documents are essential components of the county's decisions regarding the issue cited and therefore constitute public records pursuant to Pennsylvania's Right to Know Law."
In a Sept. 22 letter, the county Commissioners Office, after having consulted special counsel in the Pittsburgh law firm of Campbell Durrant Beatty, issued a final decision denying The Review's request. "Pursuant to this legal review and upon advice of special counsel, it has been determined that the documents and records requested are not subject to disclosure..." under the terms of the state's new Open Records Act, wrote Gayle Kershner, chief county clerk and open records officer.
Judge's lawyer responds
The page and one-half letter was accompanied by a five-page letter from Sal Cognetti Jr., of the Scranton law firm Foley, Cognetti, Comerford, Cimini, & Cumminns, representing Judge Smith. Cognetti claimed the county was acting illegally in maintaining custody of the CD, and he warned of legal action if the contents were divulged to The Review. Furthermore, he wanted the material either surrendered to the judiciary or destroyed.
In his Sept. 18 letter, Cognetti wrote:
"...In particular, this request (by The Review) seeks copies of or information regarding the contents of computers supplied to the Judiciary by Bradford County pursuant to Pennsylvania law and used exclusively by the court. This information is not only excluded from disclosure under the Right to Know Act, but also privileged and confidential under various statutes and legal doctrines. Furthermore, this material, in particular any copies of the contents of the computer hard drive, was obtained unlawfully and in contravention of the separation of powers doctrine. Any further dissemination, accessibility or disclosure will not only create certain actual or potential safety, confidentiality and public policy concerns but will also be legally actionable and possibly constitute criminal violations of state and federal laws.
"As we discussed, the Court of Common Pleas is committed to preserving the integrity and confidentiality of judicial information and the proper separation and protection of the judicial branch of government from intrusion by other governmental units. The Court will seek injunctive and declaratory relief on this issue, as well as an assessment of legal costs, if this information is not promptly destroyed or turned over to the Court.
"You should also be aware that the judicial user of this computer, Judge Jeffrey A. Smith, is committed to bringing action under 42 U.S.C.A §1983, other applicable statutes and common law for these violations of his rights to privacy, reputation and protections from search and seizure in the event this information is further disclosed. I would also note that, because as discussed herein this information is not subject to disclosure under the Right to Know Act and pursuant to this notice, the disclosure or release of this material would be beyond the scope of the County Commissioners' official authority and subject them to personal liabilities on the claims that will be prosecuted..."
Among the material downloaded from the Internet are many files of a sexual nature, according to the sources who either have seen the material or who have been briefed about it. They were unwilling to be identified because of the warnings from Judge Smith about possible legal action of both a civil and criminal nature.
The sites included images of scantily-clad women, images of naked women in provocative poses, and others dealing with aspects of fashion, including negligees and other women's undergarments, The Review was told.
However, The Review was told, it is difficult to determine how many of the "thousands" of files in question the judge actually downloaded, opened and viewed himself.
After The Review broke the story about the computer contents, county officials issued two separate statements, one from the commissioners at the time: Schrader, Janet Lewis and Doug McLinko; and the other from county Human Resources Director Jones. Jones' written statement said:
"After a careful investigation, it was determined that no pornography was found on the computer in question, nor is there any evidence that the user was attempting to access pornography or any illegal content." She added: "It is evident that the content was from mainstream retail sites."
The statement pertains only to the county computer, and not the state computer, the contents of which included explicit sexual images of naked women, The Review was told.
Who wrote statement?
A question has been raised as to exactly who wrote Jones' exculpatory statement, and the extent to which Judge Smith himself was involved in the wording.
Then-Chairman Schrader, when asked recently, said she does not recall the details of how the statement evolved. "I don't even remember whether it was an attorney or what," she said of the statement's author. She said the commissioners, Jones and Judge Smith all were involved in discussions about the entire matter, but what the judge's role was in composing the statement, if any, was an area she would not comment on. "He was a part of the deliberations," she said, adding, "Some things aren't as clear now," and her that memory was "fuzzy." She did say, though, as she has before, that the matters was handled "properly" and "adequately" for a personnel matter.
At the time, Schrader told The Review that anyone responsible for downloading inappropriate material was in violation of county policy. "We have a zero tolerance for things like that," she said. It "could be grounds for termination." She said, "We talked to those involved, that this would not be appropriate," she said. "I was assured that would not happen again." Asked if she talked directly to Judge Smith, she responded, "I'm not going to comment on that."
Schrader also said at the time that the county was taking steps to shore up its computer-use policies and procedures. In light of the then-current circumstances, the county will need to tighten its personnel manual, Schrader said. "We are rewriting the personnel manual; we are reviewing and rewriting that," she said, to take into account rapidly changing technology, among other things.
New policy adopted
Earlier this year, the county did adopt a new policy. The purpose, according to the 17-page document, is, "To provide clear guidelines to all employees and elected officials regarding access to and disclosure of computer and network system, including electronic communications involving electronic mail (e-mail) Internet and downloading of computer files which are sent or received by county and judicial branch employees with the use of any county computer communications systems..."
The policy, which commissioners said Judge Smith agreed to, provides that, "Users should have no expectation of privacy when using information systems in Bradford County."
There is an exception clause. It permits, "Limited, appropriate personal use of the computer system ... during lunch hours, break times and before or after work hours when the use does not (1) interfere with the user's work performance; (2) interfere with any other user's work performance; (3) have undue impact on the operation of the computer system; or (4) violate any other provision of this policy, guideline or standard of Bradford County. At all times, users have the responsibility to use the computer resources in a professional, ethical, and lawful manner..."
The policy does recognize a difficulty in avoiding contact with "offensive, sexually explicit and inappropriate material. It also notes that unless the IT department head provides approval of written requests for exceptions, "Any county or judicial branch employee found in violation of this policy ... will be subject to disciplinary action up to and including termination."
The policy's final paragraph follows that with: "Acknowledging that the county's budget does not provide for a separate judicial computer system, information within the judicial realm accessed by the county ITR employees pursuant to this policy, shall not be disclosed except by the personnel and under the circumstances identified by the memoranda of understanding between the judicial and executive branches."
Judge Smith participated in the discussion and debate over the final wording of the memoranda, county officials said.
A message left at Judge Smith's office requesting comment was not answered.