Newark police fire two for Web criticisms
Department learned names after sheriff subpoenaed Internet and cable firms

Wednesday, July 12, 2006 Star-Ledger Staff

The Newark Police Department has fired two officers and is considering the dismissal of two others for anonymous comments they posted on a popular Internet blog.

Officers Darious Smith and Yessenia Montalvo were terminated at the end of June after criticizing their superiors in messages posted on Newark Speaks, a blog widely read by public employees in Essex County.

The terminations came shortly before Newark Police Director Anthony Ambrose and Police Chief Irving Bradley resigned their positions to make way for the appointees of incoming Newark Mayor Cory Booker.

Two other officers, Louis Wohltman and Jose Montalvo, Yessenia's husband, are still awaiting department trials.

The department learned the officers' names with the help of the Essex County Prosecutor's Office, which issued grand jury subpoenas to Newark Speaks, cable companies and others to obtain the information, according to two sources with direct knowledge of the investigation.

Rubin Sinins, the attorney hired by the police union to represent all four officers, said the actions against them violate their constitutional right to free speech.

Sinins said he is appealing the two dismissals to the state Merit System Board and has asked to meet with the new acting police chief, Anthony Campos. He said he would urge Campos to rescind the dismissals and drop the pending charges against the other officers.

"I don't believe that public employees lose their First Amendment rights as citizens, particularly when the speech pertains to matters of public concern," Sinins said.

Derek Glenn, a police spokesman, issued a statement saying Campos and the department's Office of Legal Affairs would review Sinins' request for reconsideration.

Paul Loriquet, a spokesman for the prosecutor's office, would neither confirm nor deny that the office issued grand jury subpoenas.

The courts have established the rights of public employees to publicly criticize their superiors in matters of public interest. In 2004, a U.S. District Court judge in Newark ordered the reinstatement of a Roxbury Township ambulance squad volunteer, Judy Shoudy, who had complained of staffing shortages in a public forum.

The Newark police case contains more malicious speech than the Shoudy litigation. Smith, who posted under the screen name Operation Redd, called his superiors "whores" and said they were "look-alike mobsters" and had connections to organized crime. He also accused some of philandering.

But some of the postings were clearly aimed at airing concerns about problems within the department. Wohltman complained in one posting that the police had a shortage of typewriters, fax machines, copiers and vehicles.

In other postings, he called one police superior a drunk, a thief and a "wise-guy wannabe," accused others of drug use and pictured Ambrose in a clown nose and clown hair while calling him a "bubble-gum gangsta with a GED."

Unlike the Shoudy litigation, the current case raises the question of whether Internet providers and Web sites can be compelled to turn over information that identifies the authors of Web postings, an issue less settled in the law.

Besides Newark Speaks, the prosecutor's office issued grand jury subpoenas to Cablevision, Comcast, Optimum Online, the Planet, Yahoo and Moses Wilson, the operator of Newark Speaks, the sources said.

Deborah Jacobs, executive director of the American Civil Liberties Union of New Jersey, which filed the lawsuit in the Shoudy case, said the same freedom of speech rules apply on the Internet.

"Public employees have a right to speak out about matters of public concern, and that includes the right to do it anonymously," she said. "We need to know that the Newark police and prosecutor's office have respected due process and free speech rights in handling this matter."

James Pasco, executive director of the National Fraternal Order of Police, said officers around the country have been disciplined for publicly criticizing superiors and that his union believes it is unconstitutional.

"Our position would be police officers don't check their First Amendment rights at the stationhouse door," he said. "Police officers just like any other individual have certain rights."

One of the terminated officers, Smith, was already suspended without pay while awaiting trial on state charges that he stole money from drug dealers and planted drugs on suspects, charges he has denied.

Wohltman posted a message on Newark Speaks on Feb. 17 that criticized another officer for acting as a witness against Smith and suggesting that Smith was a scapegoat for wrongdoing by others.

He said the officer "wore a wire so he could help indict someone who had nothing to do with it. It never ceases to amaze me how grown men will sell their souls for a gold badge."

The department's internal affairs division began an investigation of the postings after the officer Wohltman criticized told a superior that he considered the posting a threat, the sources said.