Perry County Auditors Feel Harassed, Provide Misinformation and Appear to Be Funded

I just received some new Right to Know Law (RTKL) documents in relation to the Perry County Auditors’ lawsuit against Perry County Sheriff Nace, which result in far more questions than answers.

In a letter dated “June [sic] (July) 21, 2014,” Attorney Craig Staudenmaier informs Perry County Commissioners Benner and Rudy that his clients “continue to be dismayed and disappointed in [their] continued harassment of them,” relating to the Commissioners’ request that the Auditors withdraw their frivolous lawsuit against Sheriff Nace. Interestingly, Attorney Staudenmaier then claims that the Auditors could have brought a contempt petition against Sheriff Nace for his failure to comply with the subpoena. While I have not reviewed the subpoena, I understand from the Sheriff’s Solicitor that the subpoena was not properly executed and therefore was ignored. But, I guess we’ll ignore that legal issue, much like the Auditors like to ignore 18 Pa.C.S. § 6111(g)(3.1).

The letter also goes on to claim that, “It is not my clients’ litigation that is ‘frivolous’ as you state, but the arguments and forces aligned against them which have totally misconstrued and misinformed the public as to what the true issue is here and the reasons for the declaratory judgment action…They have been and continue to be subjected to vicious attacks by you and by members of the community for absolutely no reason.” Now, before anyone goes reaching for a tissue box, I assure you, as is shown below, it appears the Auditors have some support, from somewhere, even if it is miniscule, and there is significant reason, such as the likely criminality of the Auditors’ action, for the outrage.

Let’s talk about lies and misinformation. Auditor McMullen previously told Reporter Sauro that “concealed firearms information was available to the public under the right-to-know law…However, last year, rules were established to exclude this information from public view.” However, when I submitted a RTKL Request for that information, the Perry County RTKL Officer responded back that the Auditors’ Solicitor responded, “the auditors do not have in their possession any records which would be responsive to Mr. Prince’s RTKL request.” Prior to my representation of Sheriff Nace and in relation to the same RTKL request, Sheriff Nace also issued a response stating, “NO ONE outside of the Sheriff’s Office has had or will have access to License to Carry Firearms Application or to any information regarding Licenses to Carry Permits.” Moreover, Perry County RTKL Officer responded back, “As of May 21, 2014, no RTK requests have been made to the Office of Open Records of the County, as well as no inter-office department or other disclosures of any nature.” Hmm, just who is providing the community with misinformation?

Maybe we should talk about the misinformation being sworn to, subject to the penalties of perjury, by the Auditors that they have been provided unredacted LTCF information in the past. Sheriff Nace has steadfastly denied this allegation. Of course, maybe it is just one of those statements like Auditor McMullen’s statement to Reporter Sauro….a little misinformation never hurt anyone, right?

We won’t even touch on the misinformation that has been given by the Auditors in relation to 6111(g)(3.1). For those unaware, Section 6111(g)(3.1) (which is dealt with in extreme detail in our Brief in Support of our Preliminary Objections) provides:

Any person, licensed dealer, licensed manufacturer or licensed importer who knowingly and intentionally obtains or furnishes information collected or maintained pursuant to section 6109 for any purpose other than compliance with this chapter or who knowingly or intentionally disseminates, publishes or otherwise makes available such information to any person other than the subject of the information commits a felony of the third degree. (emphasis added)

It would seem that by the Auditors bringing this action against Sheriff Nace, they are likely in violation of the criminal law prohibiting solicitation and conspiracy. 18 Pa.C.S. § 902, Solicitation, provides:

(a) A person is guilty of solicitation to commit a crime if with the intent of promoting or facilitating its commission he commands, encourages or requests another person to engage in specific conduct which would constitute such crime or an attempt to commit such crime or which would establish his complicity in its commission or attempted commission.

18 Pa.C.S. § 903, Conspiracy, provides:

A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
(2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

I wonder if the Perry County District Attorney is aware of the filings in this matter. It would seem based on the pleadings and the Auditors’ own admissions that this would be a pretty simple prosecution.

But, let’s not overlook a very interesting issue – the issue of funding. The Perry County Commissioners only originally authorized a $2000 expenditure for research into this matter, which was authorized long before the litigation was instituted. (The Commissioners have consistently stated that this litigation in frivolous). The first billing from Nauman Law Firm was April 14, 2014, in the total amount of $1,435.00. Provided the authorized expenditure, it was paid. On June 2, 2014, a new invoice was submitted in the total amount of $2,456.75 for April billings. This resulted in Perry County Commissioners’ Solicitor Blunt’s June 16, 2014, letter advising that the County would not be paying any amounts over the agreed upon $2000.00. Accordingly, the County paid the difference of $565.00 for a total expenditure of $2000.00 and leaving an amount putatively owed of $1891.75. On June 16, 2014, a new invoice was issued from Nauman Law Firm in the amount of $1803.00, which does not appear to relate to any of the previous billings of the June 2, 2014 invoice, as these billings were all related to May. However, the back owed amount of $1891.75 is not listed. On August 14, 2014, a new invoice would be received from Nauman Law Firm, this time in the amount of $2,237.32 for services rendered in July. Once again, the past owed amounts of $1,891.75 and $1,803.00 (for a total of $3,694.75) are not reflected. So, who is paying the Auditors’ bills? The County has stated that it has not issued a payment since reaching the maximum provided for by the fee agreement. As the RTKL, Section 506(d)(3) requires 3rd parties to produce “public records” for which financial records, including receipts and disbursements, are part pursuant to Section 102, it should be interesting to see just who is funding this litigation….

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Perry County Update – New Filings and Rulings!

As many of our viewers are aware, I am representing Sheriff Carl Nace in relation to a lawsuit filed against him by the Perry County Auditors to force him to disclose confidential license to carry firearms (LTCF) information. The hearing is currently scheduled for September 2, 2014, at 1:30 PM in Courtroom 1 of the Perry County Courthouse.

Since my last blog on the PA Sheriffs’ Associations Amended Petition for Leave of Court to file Amicus Curiae, a number of documents have been filed:

  1. The Court Order continuing the matter until September 2, 2014 – here.
  2. President Judge Zanic’s Order GRANTING the PA Sheriffs’ Association’s Petition for Leave to File Amicus Curiae – here.
  3. The Auditors’ Brief in Opposition to our Preliminary Objections – here.
  4. Sheriff Nace’s Brief in Support of the Preliminary Objections – here.
  5. A Petition to Intervene by John Doe 1, 2, 3 and Jane Doe and Preliminary Objections – here.

Judge Zanic has stated that the Petition to Intervene will not be considered at the hearing on September 2nd and will be considered at a later time, if the Preliminary Objections are overruled. Also, I was informed that the reason for the continuance of the hearing (originally scheduled for today) was a result of Courtroom 1 being utilized today for another matter and the fact that only Courtroom 1 is of sufficient size to accommodate the expected attendance.

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Chief Counsel Joshua Prince Successful in Having the PSP Overturned 4 Times in One Day!

Today, we received notice in four separate matters that the determinations of the Pennsylvania State Police (PSP) were being overturned by an Administrative Law Judge (ALJ) appointed by the Attorney General. Attorney Joshua Prince, Chief Counsel of the Firearms Industry Consulting Group (FICG), a division of Prince Law Offices, P.C., represented the four individuals in their appeals from the PSP. These unrelated matters included two occasions, where the PSP refused to accept an out-of-state expungement/set-aside as relieving the individual’s firearm disability, one where an individual was stripped of his right to bear arms during probation, where the court had not ordered such restriction and one where the PSP contended the appeal was untimely, when the individual never received notice of the determination as required by law, even though the PSP conceded that the individual was not prohibited.

We wish to congratulate Attorney Prince on these successes and ensuring that our right to keep and bear arms shall not be infringed.

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FICG/Prince Law Offices, P.C.’s Seventh Bi-Annual Machinegun Shoot – October 18, 2014!

Firearms Industry Consulting Group (FICG), a division of Prince Law Offices, P.C., will be hosting our seventh bi-annual machine gun shoot at Eastern Lancaster County Rod and Gun Club on October 18, 2014, in celebration of the 2nd Amendment of the US Constitution and Article 1, Section 21 of the PA Constitution. Eastern Lancaster Rod and Gun Club is located at 966 Smyrna Road, Kinzers, PA 17535. It will start at 11am and go until 4pm. From 11am until 2:30pm, it will be unsuppressed and suppressed fire. From 2:30pm until 4pm, only suppressed fire will be allowed.

Everyone, over 18 years of age, is welcome to attend. We are sorry but the insurer will not allow anyone under 18 to participate. There will be a small area for observers, under the age of 18, to watch the shoot. The only requirement is that you bring a driver’s license and hearing and eye protection. All attendees will be required to sign a waiver.

There will be several dealers and manufacturers in attendance and which will have some unique firearms that you might not otherwise have an opportunity to shoot. We are still waiting for confirmation of the dealers that will be in attendance and will update this blog, as they confirm. While you are welcome to bring your own firearms and ammunition, it will be up to the owner of the firearm as to whether he/she will permit you to use your ammunition in his/her firearm. The FFLs will be bringing ammunition for purchase, if you need additional or if they require certain types of ammunition to be used in their weapon systems.

Bear Paw Arms will be in attendance.

UPDATE I:

  • Autoweapons will be present with M249, Kriss FN F2000, Galil, M16s, M11s, Uzis and a M60-E4.
  • Tactical Edge Firearms will be present

Kenney’s Custom Props will be in attendance and will have all sorts of fun toys to rent, including: Glock 18C, Spectre, HK G36C, Kriss Super V, FN P90, Beretta 93R and some other fun toys.

We expect that several celebrities and politicians will be in attendance. When we are able to confirm their attendance, we will post about who will be attending.

Also, Eastern Lancaster County Rod and Gun will be making food and have drinks available, at extremely reasonable prices. There will be breakfast available this time starting around 8am! Most attendees at the last shoot couldn’t get over how the Club could make any money on the food sold!

All attendees MUST RSVP. To RSVP via facebook, please go here. If you do not have Facebook or are having difficulty, please contact our Office Manager, Linda Martin, at lmartin@princelaw.com.

We are requiring that each person donate at least $10 to the Eastern Lancaster County Rod and Gun Club for their generous permission to use their range. If you have any questions, please feel free to contact us.

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Amended Amicus Brief Filed by the PA Sheriffs’ Association

On August 11, 2014, the Pennsylvania Sheriffs’ Association filed an Amended Petition for Leave To Participate Amicus Curiae and now includes an additional twelve (12) State Representatives. You can download a copy of the Amended Amicus Petition – here.

I was also informed, but have not yet received the notice, that the hearing has been continued to September 2, 2014 at 1:30PM.

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ATF Proposes Rule to Require FFLs to Report Missing Firearms

Today, the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) published in the Federal Register a Notice of Proposed Rulemaking addressing the obligation of Federal Firearms Licensees (“FFLs”) to report certain missing firearms. 78 Fed. Reg. 47033-47039.

The proposed rule is captioned Commerce in Firearms and Ammunition — Reporting Theft or Loss of Firearms in Transit, and is assigned docket number ATF 40P. Comments on the proposed rule are due on or before November 10, 2014. As explained in the Notice, the proposal is the result of ATF’s work that had been assigned reference number RIN 1140-AA41 on the unified agenda.

On November 21, 2013, Firearms Industry Consulting Group (“FICG) attorney Tom Odom submitted to ATF a request under the Freedom of Information Act (“FOIA”) regarding documents regarding the formulation of proposed rules which “would target cases where guns go missing in ‘transit'”. That FOIA request specifically referenced ATF’s entry on the unified regulatory agenda that appeared to address that subject (RIN 1140-AA41). To date, no documents have been produced. In addition, at the 2014 Firearms Import/Export Conference in Washington, D.C., just last week a panel of ATF officials were asked whether any work had been done with respect to preparing a proposed rule on the subject. ATF replied with a definitive “No.”

Curiously, once again the electronic portal at www.regulations.gov reflects that ATF has opened a docket with a Notice of Proposed Rulemaking while failing to make publicly available any supporting documents. When asked at the conference last week why ATF refused to provide such information with respect to its pending rulemaking in ATF 41P, the only explanation offered was that ATF had never done so in the past.

So, it appears once again that interested parties will have to guess at ATF’s reasoning and its representation of unsupported “facts” as no documents have been added to the rulemaking docket and a FOIA request has been ignored for over eight months.

We will be posting updates as the rulemaking process moves forward.

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“What does a Notice of Ability to Return to Work Mean For Me?”

by Karl Voigt

Karl just answered this Pennsylvania workers’ compensation question on Avvo.com:

What does an Ability to Return to Work Mean for me? I was back to FT work light duty but MMI. Now laid off.

We would generally need more facts from you in order to better answer your question. However, I see two issues in your question.

First, apparently you were back to work at modified duties, but were laid off. In these situations, your workers’ compensation wage loss benefits should indeed be reinstated. The rationale behind this rule is that, if your earnings loss recurs through essentially no fault of your own, you should be paid by the workers’ compensation insurance company. Any rule to the contrary would be patently unfair to injured workers, because an employer could hypothetically take somebody back to work at modified duties, then lay them off and not expect to have to pay workers’ compensation benefits. Hence this rule.

Second, you have since your layoff received a Notice of Ability to Return to Work. This is usually issued by the insurance company after an IME doctor – or even your own treating doctor – releases you to return to work at modified duties. The latter has seemingly already occurred because you were actually working light duty. It’s issuance is required before the workers’ compensation carrier attempts to do vocational development in your case. Namely, the insurer may now assign a vocational counselor to identify hypothetical job opportunities for you.

As far as what you have to do now that you have received the Notice, it may be time to talk to a lawyer, who may put you in several different directions knowing more facts about your case. She might advise you to begin to seek employment within your physical limitations. She could give you advice during the vocational counseling process. She might also discuss with you the possibility of a lump sum settlement. Good luck!

 

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