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Embattled Ethics Commission Confirms Samson Probe Underway

Wednesday, April 23, 2014

NJ Spotlight

In an unusually stormy meeting, the embattled state Ethics Commission placated protesters by confirming that it is investigating former Port Authority Chairman David Samson. It also confirmed that the commission is dropping a five-year-old ethics complaint against a state union leader.

For Ethics Commission Chairman Andrew Berns, the media scrutiny and the testy exchanges with leaders of the Working Families United coalition and the red-shirted Communications Workers of America (CWA) union that marked yesterday’s meeting were an unwelcome change from years of quiet commission sessions attended by a respectful lawyer or two.

“There has never been a suggestion prior to the last 45 days in my three-and-a-half years that any of my staff or commissioners do anything but treat every case individually,” Berns insisted, bristling with displeasure. “They don’t look at the political persuasion of the people making the complaints or the people being complained about.”

The Ethics Commission enforces New Jersey's conflict of interest laws.

It was actually 50 days ago that the Working Families Alliance filed ethics complaints against Samson, Christie’s trusted political adviser, spurring renewed questions about the commission’s independence and ability to investigate Christie administration wrongdoing. The conflict-of-interest allegations against Samson, which are also under investigation by the U.S. Attorney’s Office for the Southern District of Manhattan, came in the wake of a series of Ethics Commission controversies:

  • An Ethics Commission ruling issued in early January at the request of the governor’s office that barred Edward Lloyd, an environmentalist serving on the Pinelands Commission, from casting what was expected to be a critical vote on an application to build a 22-mile gas pipeline through the Pinelands preserve. Despite Lloyd’s recusal, the pipeline failed to win approval in a 7-7 tie vote that marked a rare defeat for the Christie administration.

  • The Ethics Commission’s appointment of Christie’s choice, Susana Espasa Guerrero, to serve as the agency’s new executive director. Guerrero was appointed in late January even though she had served as assistant counsel in the governor’s office with nine administration officials who had just been subpoenaed by a legislative committee in the Bridgegate scandal, which could end up before the Ethics Commission.

  • Calls by Seton Hall University Law Professor Paula Franzese and former Sen. William Schluter (R-Hunterdon), who had served as chair and vice chair of the Ethics Commission, to replace the current ethics panel -- which is made up of three Christie administration officials and four public members appointed by the governor -- with a commission made up entirely of public members whose appointment would be subject to review and confirmation by the state Senate.

It was against that political backdrop that the Ethics Commission convened for its April meeting yesterday, with several dozen union activists chanting in protest on the street five stories below.

Berns repeatedly told the union leaders and activists that filled the small hearing room that the commission does not allow comments from the public, then cleared the room for a two-hour closed executive session to discuss pending cases.

Rosenstein
Credit: Amanda Brown
Hetty Rosenstein, state director for the Communications Workers of America (CWA), sitting next to Dudley Burdge, a longtime CWA senior staff representative.

But after the commission returned to public session, Analilia Mejia, director of the union–dominated Working Families Alliance, and Hetty Rosenstein, state director for the Communications Workers of America (CWA), the state government’s largest union, kept shouting out questions to Berns about the status of the alliance’s complaint against Samson.

Berns, clearly frustrated, kept saying he could not even confirm that the complaint had been received, but Guerrero finally got up, walked the length of the conference table, and whispered in his ear.

“I am permitted to tell you, in fact, that we have received the complaint,” Berns said, as Guerrero took her seat. “And the complaint has a docket number and is being investigated.”

Berns’ comment is likely to be the last public statement from the Ethics Commission until the case is resolved after an investigation that is likely to take months.

Conflicts of Interest

The complaint alleges that Samson broke the New Jersey Conflicts of Interest Law by voting to approve the Port Authority’s $256 million renovation of the Harrison PATH station, a $7.5 million World Trade Center contract, and a $1-a-year, 49-year sweetheart lease on a parking lot for New Jersey Transit -- all of which benefited clients of his Wolff and Samson law firm. The complaint also charges that Samson improperly pushed for the Port Authority to take over operation of Atlantic City Airport from another of his law firm’s clients.

Mejia said after the meeting that she was “incredibly pleased, but pleasantly surprised” that Berns confirmed that the Ethics Commission was investigating the Samson complaint, and that it was “not being swept under the rug.”

While investigations into Samson’s role in Bridgegate and other Port Authority-related cases makes national headlines, the CWA activists turned out in large numbers yesterday to protest an ethics charge against Dudley Burdge, a longtime CWA senior staff representative and to support Edward Lloyd, a Pinelands Commission member who had been forced to recuse himself on a controversial pipeline vote.

CWA activists carried posters reading “I didn’t shut down a bridge or make millions for my law firm. I just made a phone call. Drop the Charge!”

The ethics charge against Burdge stems from a single phone call he made in February 2009 while serving as a union representative on the State Health Benefits Commission. When CWA members asked Burdge about a questionnaire they received that was marked “State Health Benefits Plan” and asking them to send personal information to an Illinois address, Burdge called the number on the flyer, identified himself as a State Health Benefits Commission member -- which he was -- and asked a manager to call him back with information.

“My members were concerned about identity fraud because they were being asked to send marriage licenses and birth certificates to an out-of-state address and being threatened that they would lose coverage for their dependents if they didn’t comply,” Burdge said. “When I called, it turned out to be Aon Consultants, which was the state’s benefits consultant.”

After Christie took office in 2010, the Ethics Commission’s staff announced that it was pursuing the complaint on the grounds that Burdge should have identified himself as a CWA official, rather than a State Health Benefits Commission member, when making the call.

“The charge is so ludicrous that it’s easy to lose sight of the reasons for the charge,” said Burdge, who asserted that the Christie administration was pushing the case because of its antipathy toward the CWA and its desire to make the CWA and the state AFL-CIO spend money defending him against the allegations.

Without Merit

When the Ethics Commission finally sent the case to Administrative Law Judge Jeff Masin in January, the judge issued a ruling the following month that the complaint was without merit.

The Ethics Commission both surprised and delighted the union crowd by voting unanimously to accept the judge’s recommendation. The panel’s ruling on Lloyd’s conflict-of-interest case, however, was arguably more important in the long run because it not only upheld the Ethics Commission’s advisory to the Pinelands Commission member urging him to recuse himself on the January 11 gas pipeline construction vote, but would apply prospectively to any future vote on the application.

Both Berns and Lewis Scheindlin, the Ethics Commission’s counsel, confirmed in interviews following the meeting that the decision in the Lloyd case, which will not be issued in writing until the end of the week, would apply to any future votes on the proposal to allow South Jersey Gas to run a pipeline across 22 miles of protected preserve to connect to a power plant owned by Rockland Capital, a client of Samson’s Wolff & Samson law firm.

“It’s unfortunate, because there are rumors that this application might come before the Pinelands Commission again,” Lloyd said in an interview after being told that the ruling would apply prospectively. “I’ll look at the written decision, then decide whether to appeal.”

Lloyd and environmental leaders, including New Jersey Environmental Federation director David Pringle, who showed up at yesterday’s meeting, charged that the governor’s office, which favored construction of the pipeline, improperly sought a ruling from the Ethics Commission directing Lloyd to recuse himself from the pipeline vote because of a conflict of interest.

Lloyd argued that he should not have been directed to recuse himself simply because the Eastern Environmental Law Center, of which he is a codirector, had urged the Pinelands Commission in a letter to hold an additional hearing before the vote was taken. He noted that the environmental advocacy group did not take a position on the pipeline vote.

However, the commission voted unanimously yesterday that the request for an additional hearing by the legal advocacy group of which Lloyd is a part created an ongoing conflict of interest for Lloyd on the pipeline application, and that such a conflict would continue to exist if any future vote is taken.

Without Lloyd, the commission split 7-7 on the pipeline vote, and Christie last month became the first governor in history to veto the minutes of a Pinelands Commission meeting. Christie said he vetoed the minutes to block the commission from approving a pay increase of up to 5 percent for the Pinelands Commission staff, saying the state could not afford such pay raises.

Janelle Blackmon, staff representative for CWA Local 1040, which represents the Pineland Commission staff, said commission staffers have been in contract negotiations with the Christie administration since 2011, and that staffers make at least 30 percent less than state Department of Environmental Protection employees with similar job titles.

But the assertion by environmentalists that Christie’s veto was designed primarily to send a message to the Pinelands Commission was undercut yesterday when Christie similarly vetoed the minutes of the bistate Delaware River and Bay Authority, which runs the Delaware Memorial Bridge linking New Jersey and Delaware, for including pay increases higher and health benefit contributions lower than those of New Jersey state workers.

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