Katie Brennan files Emergent Application Seeking to End the State of New Jersey’s Use of Strict Confidentiality Directive

Smith Eibeler, LLC, on behalf of our client, Katherine Brennan, has filed an Order to Show Cause For Temporary and Preliminary Restraints against the State of New Jersey (hereinafter, the “State”), from (1) enforcing the “strict confidentiality directive” found in N.J.A.C. 4A:7-3.1(j) against Ms. Brennan and any witnesses in the EEO/AA investigation being launched in response to her December 4, 2018, testimony before the Legislative Select Oversight Committee (“LSOC”)(hereinafter, the “EEO/AA Investigation”); (2) requiring Ms. Brennan to participate in any EEO/AA investigation until after this litigation and any criminal proceedings resulting from Ms. Brennan’s allegation of sexual assault are completed; (3) requiring Ms. Brennan and other witnesses in the EEO/AA Investigation to sign the “strict confidentiality directive” form; (4) requiring the EEO/AA to investigate the numerous violations of the State’s Policy Prohibiting Discrimination in the Workplace (“State Policy”) as set forth in the Complaint; and (5) declaring the “strict confidentiality directive”of N.J.A.C. 4A:7-3.1(j)  as null and void.

For the past year, the State has refused to conduct any investigation into any of Ms. Brennan’s reporting that she had been raped by Alvarez. Ms. Brennan exhausted all possible internal avenues of recourse and received no aid or support. Having no other option, Ms. Brennanwas compelled, as a last resort, to bring her allegations into public light. On October 14, 2018, her story was published in The Wall Street Journal. The article laid out in detail not only the rape Ms. Brennan had endured, but also her extensive efforts to prompt the State, through complaints to numerous high level State officials, to take action.

Ms. Brennan’s act of publicly telling her story accomplished what her numerous internal complaints and reports could not: it triggered investigations. As a result of the October 14 Wall Street Journal article, in or about October 2018, numerous investigations and/or reviews were launched in various departments of State and county government, including: (1) an ongoing review by the Middlesex County Prosecutor’s Office of the criminal investigation conducted by the Hudson County Prosecutor’s Office (“HCPO”) into Ms. Brennan’s criminal complaint; (2) a review by Attorney General Gurbir Grewal and the Office of Public Integrity and Accountability (“OPIA”) into Hudson County Prosecutor Esther Suarez’s involvement in the investigation of Ms. Brennan’s allegations of sexual assault; (3) the ongoing investigation by the LSOC into how sexual misconduct complaints are handled by the state, as well as hiring practices; (4) Governor Murphy’s directive to the Division of EEO/AA to review policies and procedures for addressing allegations of sexual misconduct; and (5) an investigation on behalf of the Office of the Governor by former Supreme Court Justice Peter Verniero into the hiring of Alvarez.

On December 4, 2018, Ms. Brennan participated in the LSOC investigation, publicly testifying about the rape and her frustrating experience attempting to get the State to respond to her complaints that her rapist was employed in State government alongside her.  It was only after this testimony that the State contacted Ms. Brennan to inform her that the Division of EEO/AA was conducting an investigation.  The State is not investigating her complaints of having to work alongside her rapist or of the numerous violations of the State Policy committed by members of the administration and their outside legal counsel, however, they are conducting a “limited” investigation relating to her testimony that she has felt “ostracized” since going public in October 2018.

Ms. Brennan did not file an EEO/AA complaint regarding her feeling of being ostracized since going public. By October 2018, the State had made clear its inability, unwillingness and intention to not effectively respond to allegations of sexual misconduct and discrimination.  Nevertheless, the EEO/AA launched this investigation — on their own accord — in order to apply its illegal “strict confidentiality directive” to Ms. Brennan, to attempt to silence her once again. The State Policy requires that Ms. Brennan participate in the EEO/AA investigation and keep her participation in the EEO/AA investigation “confidential.” If she breaches this confidentiality, the penalties including discipline, up to and including termination.  This Motion is brought against the State on an emergent basis to barstop the State from forcing Ms. Brennan into silence and on behalf of all other State employees who are subjected to the same unlawful conduct.

The issue before the Court is of a significant public concern because in involves an unlawful policy and practice of the State and the EEO/AA to systematically interfere with the rights of victims and witnesses in connection with investigations of harassment and to silence them and their complaints.  N.J.A.C. 4A:7-3.1(j) reads:

…[a]ll persons who are interviewed or otherwise advised of a complaint are directed not to discuss any aspect of the investigation with others.  Failure to comply with this confidentiality directive may result in disciplinary action, up to and including removal. 

(hereinafter, the “Strict Confidentiality Directive”)(emphasis added).

The Strict Confidentiality Directive is unlawful on its face.  It infringes upon First Amendment rights conferred on public employees to freely and openly speak about any matters of public concern and interferes with the State’s ability to conduct a thorough, complete and prompt investigation into complaints of sexual assault, harassment and/or discrimination.  The Strict Confidentiality Directive further violates the anti-retaliation provision of the Law Against Discrimination by silencing victims and interfering with public employees’ right to engage in protected activity and denying them the right to disclose issues of harassment and retaliation to the public and the courts.  Employers cannot threaten victims and witnesses with disciplinary action to silence and coerce them to waive their constitutional and statutory rights provided by participating in a harassment investigation.  This Strict Confidentiality Directive is unlawful and the practice of administering it during investigations must stop immediately.

The illegality of the Strict Confidentiality Directive is further illustrated by the way the State used “confidentiality” as an excuse for refusing to investigate Ms. Brennan’s repeated reporting of the rape prior to going public. In this matter, after the State refused to conduct any investigation into Plaintiff’s reporting of the rape, Ms. Brennan sent Governor Murphy and his wife an email to request a meeting to discuss a sensitive matter. While claiming that the Strict Confidentiality Directive prevented disclosure to Governor Murphy, several persons in the administration breached the same purported confidentiality obligations, including by directly informing Alvarez of Ms. Brennan’s report of the rape. In fact, on at least two occasions, Alvarez was informed that he should voluntarily leave the administration because of Ms. Brennan’s allegations which could become public and things could “get ugly” and “embarrassing” for him and the Governor. Alvarez refused to leave and no investigation ever took place.

As a result, Ms. Brennan believed she had no choice but to use her voice and go public with her allegations.  After refusing to conduct any investigation prior to the Wall Street Journal article, the State sent Ms. Brennan a letter dated December 12, 2018, informing her that it was opening an EEO/AA investigation into Ms. Brennan’s claims of being ostracized following publication of the Wall Street Journal article on October 14, 2018.  The EEO/AA investigation requires that Ms. Brennan participate in the investigation and agree to and abide by the Strict Confidentiality Directive to not disclose anything about the investigation to anyone.  Ms. Brennan, who was denied an EEO/AA or any other investigation into her repeated reporting of the rape, should not now be required to participate in an investigation and have to keep her complaints confidential or face discipline and possible termination.

Ms. Brennan has filed the emergent application not only her voice could be heard, but so that all survivors’ voices are heard. Ms. Brennan and other state employees are and will continue to suffer irreparable harm if the State is not immediately restrained from enforcing the Strict Confidentiality Directive. There is no legitimate business reason for the State to require a Strict Confidentiality Directive of all victims and witnesses to every investigation, no matter the circumstance.  While confidentiality is certainly an important consideration for a victim and to protect the integrity of an investigation, the State’s Strict Confidentiality Directive goes well beyond necessity as it violates employees’ rights to engage in protected activity. Ms. Brennan is being irreparably harmed by the State’s Strict Confidentiality Directive as it impedes and obstructs her ability to litigate her claims of sexual harassment in a court of law and it will continue to irreparably harm the public if the policy and practice is not immediately stopped.

Accordingly, Ms. Brennan requests that the court grant her request for relief to temporarily and preliminarily enjoin and restrain the State in its entirety.

All the papers filed in connection with the Order to Show Cause can be viewed here