Monday, May 13, 2013

Ethics Complaint Against Library Attorney Ann Grossi for Misleading Roxbury and Montville, NJ

This is the substantive portion of an attorney ethics complaint being filed against Ann Grossi, Esq., Parsippany, NJ, via an Attorney Ethics Grievance Form; this is in response to "E. NATURE OF GRIEVANCE."  I am retired attorney Dan Kleinman, Esq., Chatham, NJ.  Under the New Jersey Rules of Professional Conduct (RPC), I am required by RPC 8.3(a) to report professional misconduct.  I confirmed with the Ethics Help Desk that I still have this duty despite being retired.  I am filing this ethics complaint in fulfillment of this duty.

This complaint is being filed soon after I learned that Ann Grossi is misleading a second community to allow pornography in its public library, among other things, and for that reason only.  It is mere coincidence that Ann Grossi is currently a Morris County Freeholder and that she is running in the 2013 Republican primary for Morris County Clerk.  As "SafeLibraries," I have been opposing those who mislead communities about Internet pornography in libraries for over a decade.  That activity should not be used as a defense by Ann Grossi to have my complaint dismissed.

Ann Grossi is or was the attorney for the Roxbury Public Library, Roxbury, NJ, and the Montville Public Library, Montville, NJ, at all times relevant to this complaint.  Over a long period of time, she has substantially mislead those communities by intentionally providing false legal advice, among other things.  The intention to provide false legal advice is revealed by her continuing to provide the same false advice to different clients even after being advised of the falsity of her legal argument, the maintenance of the same false library policy after she admitted the policy would be reviewed, and her repeated refusals to respond substantively to requests from the media or others regarding her false advice.  From at least 2011 to present, she advises that public libraries may not block Internet pornography as that would violate the First Amendment.  That is legally false, and it is a US Supreme Court case that says the exact opposite, as discussed below.  She is advising communities the exact opposite of what the US Supreme Court says.  As a direct result of her misleading various communities in the course of her legal representation, library employees and patrons including children remain exposed to pornography and its harms and the effects upon people directly or indirectly via criminal activity of porn viewers in a manner that might not have occurred but for the false advice.  Also, municipalities are not properly advised of potential liability for failure to block pornography from libraries.

These communities want to exclude Internet pornography from their public libraries but, on advice of counsel, they do not.  I have been informed of this by people in both communities.  In one case a recording of a public meeting in which I appeared makes this evident.  Only Ann Grossi stands in the way of legally ridding these libraries of Internet pornography.  Ann Grossi accomplishes this by providing false legal opinions and by not providing accurate information that would support the libraries ability to block porn and keep it blocked even after a request to unblock and the municipalities ability to prepare for liability that sometimes results from Internet pornography in public libraries.  Libraries and municipalities have been successfully sued for sexual harassment arising out of the failure to filter out pornography, but Ann Grossi fails to advise of this.

Libraries and municipalities are mislead by Ann Grossi in the course of her work as library attorney into believing patrons have a First Amendment right to view pornography in public libraries.  Librarians who mislead their communities in this fashion suffer few if any consequences, but attorneys have ethical duties that must be followed.  As will be explained below, it is possible Ann Grossi has violated the various rules by clear and convincing evidence, including:  RPC 1.2(d): she knew she was advising the libraries to act in a fashion that exceeded the bounds of law, unless such law provides for Internet pornography, which it does not; RPC 4.1(a): she made a false statement of law to a third person, and RPC 8.4(c): she engaged in conduct involving dishonesty, fraud, deceit or misrepresentation.  Ann Grossi's violations of these rules raise a substantial question as to her honesty, trustworthiness, or fitness as a lawyer in other respects.  Worse, the communities are still suffering from her actions and omissions as she remains active in both communities, to my knowledge and belief.

Turning now to the specifics, in 2000, the Children's Internet Protection Act [CIPA] [FN 1] was enacted by the United States Congress and signed into law by President Clinton.  CIPA required Internet filtering in public and school libraries under certain circumstances.  CIPA's constitutionality was challenged by the American Library Association [ALA] and the American Civil Liberties Union [ACLU], among others.  The United States Supreme Court [SCOTUS] ruled in US v. ALA, 539 US 194 (2003) [FN 2] that filtering out pornography from public libraries is constitutionally sound since libraries are quasi public fora, not open public fora.  The Court determined that "public libraries' use of Internet filtering software does not violate their patrons' First Amendment rights...."  Since that time, the ALA has worked actively to thwart the effect of CIPA, according to CIPA's author, Ernest Istook, who wrote in 2012, "Although many libraries now apply CIPA, others - encouraged by lawyers for the American Library Association - deliberately reject federal funds to avoid the requirement of filtering patrons' access to the Internet.  Unconfirmed reports claim a third of our public libraries are using this tactic. [FN 3]"  It is "a strategy promoted by the American Library Association, which regards pornography as just a routine aspect of protecting the First Amendment." [FN 3]  By the way, neither the Roxbury nor the Montville library obtain any CIPA funding [FN 4].

On 25 June 2011, News 12 NJ published "Access to Pornography at Libraries Raises Concerns" [FN 5] regarding children exposed to pornography on computers in the Roxbury Public Library, Roxbury, NJ.  The article states, in the context of viewing pornography, "Officials at the library say they ... cannot censor what people watch because it would be a violation of First Amendment rights."  That is false given US v. ALA.  I took action to advise the community that the library officials were wrong, including writing a letter advising about US v. ALA and appearing before the Roxbury Township Committee Meeting, 28 June 2011 [FN 6].  "We are waiting for our attorney on what can and what cannot be done," said one of the Committeemen.  Another said, "what I can tell you is that our attorney has looked at [the letter I wrote], we do have a separate library attorney.  She told us we are in compliance with the rules as they are written in New Jersey and we are, we should be fine with those rules at this point.  I'm not in favor of pornography in the library.  I reached out to our attorney and asked her what forum are we considered, whether it's quasi or open public, so I'll wait for her answer, and to let me know."  The Roxbury Public Library's attorney was Ann Grossi.

On 6 August 2011, News 12 NJ wrote a story entitled, "Morris Co. Man Wants to Make Library Computers Safe for Kids" [FN 7] wherein Ann Grossi is reported to have said she is reviewing Roxbury library policy.

Later, New 12 NJ attempted to set up a debate between myself and Ann Grossi but she refused to appear.  So only I was interviewed in a broadcast aired 5-6 November 2011 [FN 8].  Ann Grossi, the issue of public library pornography, and her legal advice for Roxbury is discussed.  She is quoted as saying in June 2011, well after US v. ALA from 2003, "if the library attempts to restrict access, regardless of how offensive, it would be a violation of the First Amendment of the Constitution of the United States."  In August 2011, she is quoted as saying "the library is in the process of reviewing its policy and practices surrounding the use of the Internet."  News 12 NJ tried to get Ann Grossi to explain what she meant by that but was unsuccessful in that effort.

The Roxbury Public Library last amended its Internet Use Policy on 29 August 2012 [FN 9].  It contains statements such as the library "cannot protect individuals from information and images which they might find offensive or disturbing," which is false as even the ALA now admits library filters work [FN 10].  In italics, it says, "Libraries and librarians should not deny or limit access to information available via electronic resources because of its controversial content or because of personal beliefs or fear of confrontation."  True, but pornography is not "information," neither is a library empowered to provide it, as shown below.  Again in italics, it says, "Information retrieved or utilized electronically should be considered constitutionally protected unless determined otherwise by a court with appropriate jurisdiction."  This is false and misleading.  It is false because pornography, though constitutionally protected in certain forms and fora, may be legally excluded from public libraries, as US v. ALA explained.  It is misleading because, thanks to cases like US v. ALA and Bradburn v. NCRL [FN 11], the library knows full it may block pornography without having to get judicial review of each of the millions of porn sites available.  And getting such a review is an impossibility anyway.

These statements and accompanying ones indicate that the library policy has not changed significantly regarding the issue of public library pornography despite Ann Grossi's presumably having reviewed the policy as she stated.  Instead, the policy continues to ignore US v. ALA, and the Roxbury community continues to be exposed to the harm it is legal to curtail.  So the community that praised my assistance and said, "I'm not in favor of pornography in the library," has ended up with substantially the same legally false policy as when the matter first arose, and Ann Grossi's misdirection is likely the main reason.

On 19 April 2013, the Montville Patch published a story about the Montville Public Library, Montville, NJ [FN 12], stating, "Mayor Tim Braden noted that ... the library cannot entirely restrict patrons from looking at pornography ... as it would be considered restricting their rights."  Seeking to learn who might have misled the Mayor, I learned that Ann Grossi, the Roxbury Public Library's attorney, was also the Montville Public Library's attorney.  I have asked Montville and the library what Ann Grossi advised [FN 13] [FN 14] but have gotten no substantive responses based on those requests.  I even asked Ann Grossi directly via email.  Her response was that I should "cease and desist" from emailing her Morris County Freeholder email address.

I have learned that Ann Grossi did indeed advise someone involved in the Montville matter that the First Amendment protects pornography in public libraries, but I am awaiting permission to make that conversation public.  As in Roxbury, I have been asked to help the community exclude Internet pornography from its public library.

In Roxbury, Ann Grossi waited for the media storm to blow over then left the library policy the way she wanted it.  In Montville, this being her second bite at the apple, I am reporting her actions for the determination of possible ethical violations.  If such violations are found, that may go a long way toward Roxbury and Montville restoring law, common sense, and community standards to their public libraries.

The law as presented in US v. ALA and Bradburn v. NCRL is one thing, but is there relevant New Jersey library law?  Yes.  Libraries are almost always created by some legal instrument.  They are granted powers and may act autonomously from local governments in accordance with those powers.  This is done to prevent political control.  If they exceed those powers, local governments are free to stop such ultra vires activity without fear of piercing the library's shield of autonomy.  For example, if a library set up a massage parlor, that business could be shut down by the municipality without piercing the veil of autonomy a library enjoys for carrying out the activities of the library.  In other words, simply because a library has a shield of autonomy to perform any action consistent with the legal instrument that created it, it does not enjoy that shield if it were to act outside the law.

Turning now to the actual law of libraries in New Jersey [FN 15], they are created under NJS 40:54-1 which states, "Any municipality may, in the manner hereinafter provided, establish a free public library within its corporate limits."  Also, such libraries "shall be governed by the provisions of this chapter."  When it comes to the powers of the library board of trustees, NJS 40:54-12 says they may do anything a library is expected to do, "and generally do all things necessary and proper for the establishment and maintenance of the free public library in the municipality."  A massage parlor is neither necessary nor proper for a library, so a library board may not provide for a massage parlor, and if it does, it is acting outside the law.  In such a case, the municipality has the right and duty to stop such ultra vires activity.  Indeed, if harm results from such activities and the municipality failed to take action to stop it, the municipality may become partially liable for the harm.

NJS 2A:53A-7.1 grants immunity from liability for library trustees who are acting within the law circumscribing their duties, it is specifically does not grant immunity to those acting outside the law.  "Nothing in this subsection shall be deemed to grant immunity to any person causing damage by his willful, wanton or grossly negligent act of commission or omission."  Running a massage parlor, for example, would likely not protect trustees from liability resulting therefrom.

So libraries might act outside the law, and doing so may lead to legal liability for libraries and municipalities, let alone grave consequences for those harmed by any resulting damage.

Pornography is neither necessary nor proper for a public library, according to US v. ALA, common sense, community standards, etc.  The SCOTUS case reveals pornography has been consistently excluded from public libraries and for good reason.  This is an example of how US v. ALA applies to all libraries, not just those receiving federal funding.  Something that is consistently excluded from public libraries for centuries is neither necessary nor proper for public libraries, neither is it an essential public service.  Under NJS 40:54-12, a library is not empowered to provide pornography as it is neither necessary nor proper for a public library.  Library trustees who allow the library to act outside the law may be held liable for damages under NJS 2A:53A-7.1.  A municipality that does not stop a library from acting outside the law may also be liable, and if it forces a library to act within the law, it is not piercing the library's veil of autonomy to act within the law.

Indeed, despite library policy claiming the library must be held harmless for any damage, several libraries have been paying very large settlements as a result of sexual harassment cases filed by librarians harassed as a result of library policy allowing pornography for claimed First Amendment reasons despite the law [FN 16].  For example, one harassed librarian was told, "if you don't like it leave."  She received a $150,000 settlement a week before the beginning of her trial against Birmingham, AL.  Ann Grossi does not reveal this.  If library boards knew *not* filtering pornography was resulting in major litigation and big settlements for sexually harassed librarians, that might convince them to filter out porn.  Ann Grossi has a duty to reveal this.

By advising that libraries are open public fora that may be sued under the First Amendment for filtering out porn, something which has not happened (although a few libraries have been sued for filtering out other material such as information about Wicca) and *not* advising that libraries are sued successfully for sexual harassment as a result of *not* filtering out porn, Ann Grossi substantially misleads those communities into allowing the very thing they are seeking to curtail but are afraid to do so without attorney approval.  Librarians may do this with impunity but attorneys have ethical and professional obligations that must be met.

Her actions not only reveal conduct involving dishonesty, fraud, deceit or misrepresentation, but also leave communities exposed to the very harm it is legal to prevent,  She does this in a substantially similar fashion to what the CIPA author said is happening in a third of American libraries.  As evidenced by the above, Roxbury and Montville will continue to be forced to allow pornography in their public libraries so long as Ann Grossi continues to act as library attorney.  In other words, Ann Grossi's misconduct not only occurred in the past, but it is a continuing and present danger to the Roxbury and Montville communities, particularly library employees, patrons, and their children, let alone the exposure to liability of the library and the municipalities themselves.

Librarians may be promoting "a strategy promoted by the American Library Association, which regards pornography as just a routine aspect of protecting the First Amendment," as the CIPA author said [FN 3], but that does not mean library attorneys who are held to a professional and ethical standard can follow that same strategy with impunity.  As the library attorney, Ann Grossi has the power to force her will on Roxbury and Montville, and, given her continuing actions and the essentially unchanged library policy in Roxbury that perpetuates her misinformation, it appears only her own Office of Attorney Ethics can act to stop her.


FOOTNOTES IN SUPPORT OF ETHICS COMPLAINT RE ANN GROSSI, ESQ.

FN 1  http://www.fcc.gov/guides/childrens-internet-protection-act
FN 2  http://laws.findlaw.com/us/539/194.html
FN 3  http://safelibraries.blogspot.com/2012/02/cipa-author-exposes-ala-deception.html
FN 4  http://www.usac.org/sl/tools/commitments-search/default.aspx
FN 5  http://prod.news12.com/NJ/topstories/article?id=285187

An Internet cache of the site is available here:
http://webcache.googleusercontent.com/search?q=cache:e1zbldFK8sUJ:prod.news12.com/NJ/topstories/article%3Fid%3D285187+&cd=1&hl=en&ct=clnk&gl=us

Under US Copyright Fair Use provisions, I provide the text but not the video:

(06/25/11) ROXBURY - Lori Bradley was at the Roxbury Library with her son when he pointed out someone viewing pornography on one of the public computers.
Bradley says she was shocked that someone could do that especially in such close proximity to children and have access to it through taxpayer dollars.
Officials at the library say they have a policy to ask people to stop if they are becoming disruptive, but cannot censor what people watch because it would be a violation of First Amendment rights.
Bradley hopes that this and other incidents will force the library to move computers away from the busier parts of the library to keep the inappropriate images away from children's eyes.

FN 6  http://dl.dropbox.com/u/32156878/RoxburyNjTwpCouncil28June2011.mp3
FN 7  http://www.news12.com/articleDetail.jsp?articleId=288797&position=1&news_type=news

Under US Copyright Fair Use provisions, I provide the text but not the video:

(08/06/11) ROXBURY - After a woman complained about pornography being accessible through the computers at the Roxbury Public Library, a Morris County man has made it his mission to make libraries safe for children.
Dan Kleinman, the founder of the website safelibraries.org, says his goal is to protect children from pornography on library computers in New Jersey.
The U.S. Supreme Court ruled in 2003 that a library using filtering software does not violate a patron's First Amendment rights.
Library officials say that they are reviewing their policies regarding patrons' use of the Internet.

FN 8  http://dl.dropbox.com/u/32156878/DanKleinman-KaneInYourCorner-News12NJ-5Nov2011.wmv
FN 9  http://www.roxburylibrary.org/pdf/PolicyManual/Internet%20Use%20Policy%20-%2008292012.pdf obtained from http://www.roxburylibrary.org/policies.html
FN 10  http://safelibraries.blogspot.com/2012/02/ala-admits-library-filters-work-barbara.html
FN 11  http://safelibraries.blogspot.com/2013/04/HowToFilterLibraryComputers.html
FN 12  http://montville.patch.com/articles/porn-watching-at-library-may-prompt-policy-changes
FN 13  http://safelibraries.blogspot.com/2013/04/AnnGrossiOPRA.html
FN 14  http://safelibraries.blogspot.com/2013/05/AnnGrossiOPRA.html
FN 15  http://lss.njstatelib.org/library_law
FN 16  http://safelibraries.blogspot.com/2012/08/SexuallyHarrassedLibrarianGets150K.html and see Adamson v. Minneapolis Public Library as examples


NOTE ADDED 14 MAY 2013:

I mailed out the ethics complaint today.

The Star-Ledger has reported on this matter.  See how Ann Grossi makes false personal attacks, false legal statements (such as libraries must unblock anything), and even mocks the ethics procedure itself by claiming I'm attacking her ethics and that an ethics complaint "means you've done something wrong.  I haven't done anything wrong":

NOTE ADDED 15 MAY 2103:

And did you notice, "Grossi said there is no 'bright-line rule' in the law when it comes to pornography at libraries."  Grossi is quoted saying, "I find people using the library to view pornography as abhorrent as any other person.  ....  But there is no bright-line rule on this, despite what Mr. Kleinman says."  Has she read US v. ALA?

US v. ALA is chock full with the long standing exclusion of porn from public libraries.  For example, it says, "Most libraries already exclude pornography from their print collections because they deem it inappropriate for inclusion. We do not subject these decisions to heightened scrutiny; it would make little sense to treat libraries' judgments to block online pornography any differently, when these judgments are made for just the same reason."  And when it discusses if privacy screens or moving the furniture around will solve the porn problem, it says no, and further, they would make the porn problem worse.  Yes, worse.  If it's that much of a problem, do you really need a "bright-line rule"?  It is obvious you can block pornography from libraries, you don't need a "bright-line rule."  It's like saying there is no bright-line rule for keeping pornography books out of public libraries.  Ann Grossi, even in the face of this ethics complaint, is still clinging to her misleading ways.

By the way, I attending the Montville Public Library meeting Monday night.  So did Ann Grossi.  Board member Mr. King is in favor of removing the porn.  Yet at one point he suggested moving the furniture might solve the problem of children viewing porn.  Ann Grossi sat there silently.  It was I who stood up, when allowed, and advised about what US v. ALA said about moving the furniture and how it makes things worse, not Ann Grossi.  Various board members then discussed how moving furniture or having separate adult viewing areas would make the problem worse, and because of me, not because of Ann Grossi.  It's a microcosm of the problem.

This insistance on a "bright-line rule" is an example of how Ann Grossi misleads communities who, because they rely on the attorney say so, will not act to block porn.  Ann Grossi does not reveal the true nature of what US v. ALA says about porn, and on the other hand, as exemplified here, she says there is no "bright-line rule."  This might be ineffective assistance of counsel if it did not appear so intentional and so in your face, especially given her personal attacks on me ... and the media.

I have learned she has threatened litigation against some media for reporting on the existence of the ethics complaint!  So, to her, public libraries are required by the First Amendment to allow porn so as to protect free speech, but the media should not have the free speech to report on the filing of an ethics complaint that evidences how she is misleading people on free speech.

All this is my opinion, of course, but that's why I filed the ethics complaint, for an official decision to be made, so hopefully the communities will finally feel free to ignore her advice and to effectively block porn from their libraries and, importantly, keep it blocked even if someone requests an unblock for porn.  Sure Montville has filters, for example, but they do no good if you ask to have them disabled then you watch porn.  No one else or no other group is in a position to stop Ann Grossi from misleading and harming communities or to convince the communities to stop following her faulty advice.  I'm hoping the Office of Attorney Ethics will help to resolve this issue in some manner.


NOTE ADDED 16 MAY 2013:

Further regarding Ann Grossi's claim that there is no "bright-line rule," she has one.  She gives legal advice with this rule and it is 100% false and it is the reason the Roxbury and Montville communities are afraid to act.  Her bright-line rule is, "if the library attempts to restrict access, regardless of how offensive, it would be a violation of the First Amendment of the Constitution of the United States."  The US v. ALA case, on the other hand, says, "public libraries' use of Internet filtering software does not violate their patrons' First Amendment rights...."

So when media reports, "Grossi said there is no 'bright-line rule' in the law when it comes to pornography at libraries," that is showing Grossi maintaining the same false front that misleads the communities and that led to the filing of the ethics complaint in the first place.  And she displays this after she is aware of the filing of the ethics complaint, making it even more egregious.

And when Grossi threatens litigation against the media to suppress its message about the filing of an ethics complaint, that may result in even further ethics violations that I have not reported due to their arising out of the filing of my complaint.  To my knowledge, that media source has not yet published anything about the ethics complaint.


SECOND NOTE ADDED 16 MAY 2013:

The Montville Patch now features a second story on the issue:


Regarding the article, yes, Montville has filters, but they need not be turned off to view porn, and Grossi does not advise of that.  Neither must they be left off after a person is found to be viewing porn, even if he bypassed the filter.  Actually, Grossi advises it is a First Amendment violation to block porn, and that is the exact opposite of what the US Supreme Court said.

As to the risk of litigation for blocking pornography, it has never happened since the 2003 US v. ALA case issued.  Not once, never.  Other cases such as blocking Wicca, yes, but not pornography.  But library after library is sued for the failure to filter out porn, sometimes repeatedly.  The ALA's claim that libraries might be sued for blocking porn has never been borne out.  On the other hand, the ALA fails to disclose that not filtering computers rings up big sums for sexually harassed librarians.  It's the exact same false tactic Ann Grossi uses.  The ALA has no duty to Montville.  Ann Grossi does, and she may have failed in that duty.  We'll see what the Office of Attorney Ethics says.

If anyone is willing to watch me and Ann Grossi debate and can arrange to set it up in an appropriate public forum for possible rebroadcast, I'm game.


NOTE ADDED 18 MAY 2003:

A third article features this case.  Let's be clear my filing of this ethics complaint has absolutely nothing to do with Ann Grossi's political activity despite her protestations.  Ann Grossi's own actions and omissions have led to the filing of this complaint.  Had Ann Grossi acted in the past to stop misrepresenting the law, and she was given numerous opportunities including those outlined and referenced in the body of the ethics complaint, the complaint would never have materialized:
"Grossi advises that the filter be turned off if requested…," reports the Parsippany Patch article.  She advises more than that.  She advises the First Amendment protects porn viewing in public libraries, as illustrated in the News 12 NJ stories I included in the ethics complaint.  That goes 100% counter to the US Supreme Court.  That she is crafting her words carefully now when speaking with the media does not make her possible failure to meet her ethical obligations go away.  Besides, Bradburn v. NCRL shows filters need not be turned off until after compliance with library policy is reviewed.

"'There is no fundamental difference between us on pornography,' Grossi told Patch.  'It is just issues of law that are different, and I am following the letter of the law.'"  No, Ann Grossi, there's a big difference, and no, Ann Grossi, advising 100% opposite of the US Supreme Court and failing to advise of Bradburn v. NCRL, New Jersey library law, etc., is not following the letter of the law.


NOTE ADDED 22 MAY 2013:

Yesterday I learned from the recipient of my ethics complaint that it indeed had been received.

For those interested, the following may be of interest:

NOTE ADDED 5 JUNE 2013:

The porn pusher prevails in the primary.  In Morris County, that likely means she will be the next County Clerk, and this despite the current County Clerk endorsing another candidate:




No comments:

Post a Comment

Comments of a personal nature, trolling, and linkspam may be removed.

Post a Comment