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Bugged in Portsmouth: AG's probe needed

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It is illegal in New Hampshire to secretly record people's conversations. Unless, apparently, you are employed by the Portsmouth Police Department.

The Portsmouth Herald reported last week that two Portsmouth Police Department employees bugged the department's records office, where non-uniformed employees work, from November 2008 to February 2009. They fed the audio into a computer, where one of them, a supervisor, could listen to the employees in real time. The audio was also digitally recorded. An investigation could not find that higher-ups approved the scheme, though the employees claimed that they had the OK to do it.

The records office employees discovered that they were being spied upon and complained, which prompted an internal investigation and an investigation by Rockingham County Attorney Jim Reams.

The Herald obtained Reams' report via a Right to Know Law request. In the report, Reams let the wiretappers off the hook by making a bizarre legal assertion.

Reams concluded that the employees thought their conduct was lawful. Because he couldn't prove "criminal intent," he had no reason to press charges, he stated. Case closed.

Legally, that's hogwash.

The statute states that a felony is committed if someone "Wilfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any telecommunication or oral communication."

"Wilfully" means that the person made the recording on purpose, not that the person intended to break the law. Reams' statement that he has to prove criminal intent is baloney. So too is his assertion that the employees in question didn't know they were breaking the law. First, ignorance of the law is no excuse. Second, police department employees who secretly taped their inferiors without telling their superiors didn't know they were breaking the wiretap law? Doubtful.

If this eavesdropping had been carried out at a private company instead of the police department, would Reams have brushed it aside because the supervisors said they didn't mean to break the law?

This incident screams for an investigation by the state Attorney General's Office. Reams might have tried to do the right thing, but as an elected county attorney, his political future can rest on the endorsement of local chiefs of police and patrolmen. There is an obvious conflict of interest in having him investigate the conduct of this police department in his own county.

The state attorney general is appointed, not elected, and would have no such conflict of interest. Maybe Reams is ultimately correct to choose not to prosecute. But without an AG's investigation, this looks an awful lot like a case of police misconduct gone unpunished because of political considerations.

YOUR COMMENTS


I think the taping was unlawful and the employees should of been notified if that what they wanted to do. I think it was violating their right to privacy and that obviously there are other ways to deal with customer satisfaction. If there were issues going on with employees and thier conduct with the public then they need some management training themselves!
- Ivelisse Roy, Portsmouth NH

Ramie, I understand the closure part but it is the road to closure that needs tobe examined. People can't break the laws when it fits them to resolve a problem. This is a double standard. So, if Portsmouth PD wants to solve an internal problem they simply wiretap others illegally in order to get to the end result? Where does that lead to next? If they want to illegally enter a persons home just because they don't like them does the ends justify the means here? People, even employees, have rights and the wiretapping issue is ok according to Reams because there was no criminal intent? No criminal intent on whose say?
- Mike, Manchester

I think the Portsmouth PD does an excellent job in protecting our community. I don't think this was a maliscous act to harm the records division. Anyone who has ever requested records in the past (from this department) would see the Portsmouth PD had their hands full in trying to analyze why the records department had so many customer complaints. The attitude, tone and disrespectful nature of the records division led to the need of the microphone. Now, this department bends over backwards to accomodate our local community in their requests. I wonder why. Reams most likely wanted to resolve this issue and find closure for all parties involved. Imagine that...closure. Resolve.
- Ramie Marston, Portsmouth NH

This is extremely embarassing to the rest of NH law enforcement. One of the largest departments in the State has supervisors who don't even know what the wiretapping statute prohibits and allows? How can that be? The law is completely clear. I am also very troubled with the County Attorney's decision that no crime was committed. Clearly a crime was committed. Ignorance of the law is no excuse. I would have understood if he determined that although a crime had been committed, his office has declined to prosecute. Let's face it folks, that's what really happened here.
- Charles, Salem

Bob, Derry.

With respect. Jim Reams has not prosecuted anything in years. He has however been a grantstanding buffoon gracing the pages of the UL to attack defendants and judges he takes a personal dislike to.

Rockingham deserves batter. This isn't partisan or political. The man is an embarassment. Hopefully the AG can give him a push elsewhere.
- Leon, Manchester

This guy Reams is a joke. His record stinks and he makes bad choices. The problem is this is what you get when the pay is low.
- Foster, Portsmouth

The reasoning used by the alleged wiretappers was faulty from the start. They wanted to ensure that PPD records employees were "protected" from the public and vice versa. Complete nonsense! Without a warrant for the wiretap (which of course would be issued only with sufficient cause/evidence by a judge) you have a classic chicken and egg scenario. Written complaints that were submitted by members of the public would have sufficed to get the missing warrant....so clearly the wiretappers had some other motive for their "alleged" actions. Shame on Reams for babbling out this contradictory garbage! He has a severe conflict of interest that should have immediately preempted him from the investigation!
- Dave, Exeter

The problem here is not the wiretapping - although that is not as murky as some on here are trying to make it. The problem is the decision by Reams that the perps did not "intend to break the law."

That indicates that a law was broken, they just did not intend to do it.

That would mean that anyone in Rockingham County who commits a crime, but does not "intend" to break the law should, by that addled logic, get off.

The implications of that are pretty drastic. Virtually no spouse, for instance, wakes up and says, "hmm, I think I'll beat my wife today." No mother says, "hmm, it is 90 degrees out, I'll leave little Johny in the locked car and see how he copes."

It is highly doubtful that Mr. Reams affords the same "intent" luxury to the public that he afforded the PD employees.
- William Simpson, Concord

Bob in Derry, So what, Reams prosecutes people who commit crimes against chilfren. That is his job. Why glorify the guy for doing what he was elected to do, prosecute. In the case of the wiretapping, it is plain as day Reams doesn't want to make waves with Portsmouth Police Department. After all, I am sure he relies on their support for re-relection. If this was anybody else Reams would take to the microphones, stand on his little box and yell to the world how horrible a crime this was. But, it is the Portsmouth Police and after all, they didn't know what they were doing was illegal. Maybe Reams should remember that little line of his next time he proescutes someone for some obscure crime. Then again, they are not the Portsmouth Police so, they wouldn't get that favor.
- Mike, Manchester

It sounds like they have a lot of free time at the Portsmouth Police Department, perhaps they were investigating some illegal dealings by the records people?.
- Rick, Stratham

Leon in Manchester I would like to correct you with regard to Mr. Reams and hope you understand. While I do not know the basis for the decision he made concerning the allegation lets give him the benefit of the doubt. Let the AG do its investigation. Mr. Reams while head of the Rockingham County Attorney's office has prosecuted crimes against our children with extreme vigor keeping our children safe, he also has a solid record of accomplishment in prosecuting major crimes in the County. Give the man his due respect before tossing him under the bus…
- Bob, Derry

You can't record death threats made against you over the telephone in NH without an approved police wiretap.
This is another case of a law enforcement agency abusing NH's "draconian" wiretapping laws. These laws protect the powerful against the powerless. NH's wiretapping laws should be repealed. The Federal statute is good enough.
- Chris, Merrimack

Reams is a embarrasment. He has clearly placed political considerations above his legal obligations. He has failed both as County Attorney and as a lawyer.

Someone should file a complaint with the Professional Conduct Committee and the new AG needs to look not only at the PPD activity but also at Reams.

Rockingham derserves better than this policital hack who is more interested in grandstanding to the media and keeping on the right side of those who pay for his campaigns than actually addressing his role as a CA.
- Leon, Manchester

Typical Jimmy Reams doublespeak. The more light that is shed on his office in general, and him in particular should serve as a warning to the voters of Rockingham County that next time around they need to elect a competent County Attorney. Until then we can expect to read more and more of these debacles originating from his Office.
- Jack Sprowl, Newmarket, NH

The statute definition of "oral communication" requires that it be "any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation."

If one doesn't have an expectation of privacy, it isn't an "oral communication" per RSA 570, and is legal to record. No matter what former AG Ayotte opined, the statute is clear.

Two government employees conversing in a non-public portion of their workplace would clearly have "circumstances justifying such an expectation". An employee conducting business at the counter where anyone could overhear them, does not.

I think the PPD clearly violated the statute here, but there has been a double standard at play for years in NH.

In 2006, Michael Gannon was charged with felony wiretapping despite clearly posted notices on his home that security cameras were recording audio and video. When he presented his tapes to Nashua PD to complain about the behavior of officers who came to his home, his tapes and security cameras were seized and he was charged under 570-A.

The charges were eventually dropped, but his equipment was seized.

"On the job means on the record". Every government employee who is dealing with the public should be legally subject to audio and/or videotaping.

At the same time, government employees who are NOT dealing with the public should have the same expectation of privacy as the rest of us.
- Kevin, Lancaster

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