Commission votes in secret for Christie’s choice, a former counsel in governor's office who served with all nine aides subpoenaed in Bridgegate

The state Ethics Commission, which would rule on any ethics complaints against state officials in Bridgegate or other Christie administration scandals, yesterday approved Gov. Chris Christie’s recommendation for its new executive director — Susana Espasa Guerrero, a former governor’s counsel who served in the governor’s office with all nine Christie aides subpoenaed in Bridgegate.

Guerrero previously spent eight years working in the law firm of Christie’s most trusted political adviser, William Palatucci, overlapping with Christie’s last four months as a partner at the firm before taking office as U.S. Attorney.

Guerrero did not return four phone messages yesterday afternoon even though staffers said each time she was in her office. But Andrew S. Berns, the Republican Denville lawyer who chairs the Ethics Commission, confirmed last night that Guerrero’s appointment “was formalized today by the Ethics Commission by a vote.”

Berns said the Guerrero appointment to replace Peter Tober, whose nomination to a state Superior Court seat was approved by the state Senate January 4, came straight from the governor’s office. “With these sorts of appointments, there is a recommendation made by the Appointments Counsel in the governor’s office and we have a vote and if the person is successful, they get the position,” he said.

Neither the governor’s office nor the Ethics Commission made any formal announcement of Guerrero’s appointment yesterday, but her name was listed as executive director on the staff list on the commission’s website.

While the U.S. Attorney’s Office evidently is conducting a criminal investigation into Bridgegate and into Hoboken Mayor Dawn Zimmer’s allegations that the Christie administration threatened her and improperly withheld Sandy aid, state officials could also be called before the Ethics Commission to face charges. The commission can impose fines ranging from $500 to $10,000 and up to a five-year ban on holding public employment under the State Ethics Code and the Conflicts of Interest Law.

Former members of the state Ethics Commission are taking issue with the way Christie injected the governor’s office into the hiring of its past two executive directors. Indeed, one former chairman of the commission, Paula Franzese, a Seton Hall law professor, said it may even be time to rethink the concept of having members of the Ethics Commission appointed by the governor.

“The Ethics Commission was created in the 1970s and its tradition of independence endured for 40 years,” Franzese said. “It always had a strong, independent executive director, and it usually appointed successors from within the ranks who had had the opportunity to gain expertise and experience and who understood the importance of maintaining the commission’s independence from the governor’s office. It was always the tradition that the governor’s office would not intercede in appointments because the governors were mindful of avoiding the appearance of impropriety.”

But that has changed under the Christie administration. William E. Schluter, the former Republican state senator who was the Legislature’s leading ethics advocate and formerly served as vice chairman of the commission, said the Ethics Commission’s appointment of Christie’s choice as executive director exemplifies what is wrong with the commission under Christie.

“This is the whole problem. The commission is supposed to choose the executive director, not the governor,” said Schluter. “Now, this is the second time that the governor has put in his own choice as executive director. The commission has to have total independence. That was the purpose of the reforms implemented after Gov. McGreevey left office in disgrace.”

Under the leadership of Gov. Richard Codey, who made ethics a top priority during his year as governor finishing out McGreevey’s term, the Legislature passed a new ethics law that replaced the old Executive Commission on Ethical Standards, whose members had been high-ranking officials from the executive branch, with a new seven-member Ethics Commission whose majority was made up of four public members. The state’s two strongest ethics advocates, Franzese, who had served as Codey’s special ethics counsel and led the public fight for the reforms, and Schluter, were named chair and vice chair of the new commission.

Ethical Violations

The independence of the Ethics Commission from the governor’s office is particularly critical with new allegations of ethical violations and abuses of power making headlines virtually every day, Schluter noted. Political activity by state employees and efforts to cover up the Bridgegate scandal that might not rise to the level of criminal prosecution could be considered ethics violations, and various conflicts of interest involving business dealings have also been alleged.

One such instance could be Christie Deputy Chief of Staff Bridget Kelly’s directive to David Wildstein, a Christie point man at the Port Authority, to close the George Washington Bridge access lanes reportedly to punish Fort Lee Mayor Mark Sokolich for refusing to endorse Christie for reelection. This could violate the ethics code prohibition stating that “an employee shall not directly or indirectly use or seek to use his authority or the influence of his position to control or modify the political action of another person.” It also could violate the provision that “an employee during the hours of duty shall not engage in political activity.”

“There are a lot of issues related to Bridgegate and the other allegations that have been made public that could come before the commission,” Schluter said. “That is why I felt it was so important for the Ethics Commission to maintain its independence because it cannot maintain the public confidence if it doesn’t.”

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The state Ethics Commission and the role it could play in the scandals is beginning to gain attention. Sen. Codey (D-Essex), who championed the 2005 ethics reform law while serving as governor, yesterday said that New Jersey appointees serving as commissioners of bistate agencies should be subject to the Ethics Commission.

His statement came on the heels of The Record’s report that Port Authority Chairman David Samson voted to approve a new $256 million PATH light rail station in Harrison, even though a client of his would gain financially. Samson’s law firm represented a developer who proposed to convert a nearby warehouse into luxury apartments.

Berns said he did not see any problem with the appointment of Guerrero in the wake of the various ethics allegations that have engulfed the Christie administration in recent weeks, including Zimmer’s charge that Lt. Gov. Kim Guadagno threatened to hold up Sandy aid if she did not approve a high-rise development the governor wanted.

“She hadn’t been in the governor’s office for a fairly lengthy time,” Berns said. Guerrero moved to the state Education Department as assistant commissioner for operations and legal affairs in October 2012 after serving two years and 10 months in the governor’s office as Associate Counsel from the beginning of Christie’s first term.

“I’m not sure if all the people in the governor’s office are jurisdictionally within the state Ethics Commission. The governor and lieutenant governor are not,” Berns said, then acknowledged that he believed the governor’s staff does fall under the commission’s jurisdiction. “However, this appointment has nothing to do with that (Bridgegate) because none of that has come before the commission.”

Guerrero’s appointment was approved yesterday by a vote of the seven-member commission. By statute, the commission includes three Christie administration officials – state Comptroller Marc D. Larkins, state Labor Commissioner Harold J. Wirths, and Wayne Hasenbalg, a former Christie deputy chief of staff who heads the Sports and Exposition Authority. The four public members are Republicans Berns, a partner at Einhorn Harris in Denville and former Assemblyman Kenneth LeFevre (R-Atlantic), and Democrats Michael E. Levin, a former Jackson Township mayor, and Joann LaPerla-Morales, the president of Middlesex County College.

Asked whether the vote by the commission was unanimous, Berns said, “I’m not at liberty to discuss that with you.” Asked if he considered the vote to be a personnel matter, he responded, “That’s correct.”

Guerrero, a George Washington University Law School graduate who clerked for a Superior Court judge, was hired by Dughi, Hewit and Palatucci in September 2001. Christie was then in his eighth year as a partner at the Cranford firm. Christie and Palatucci had worked hard for the election of George W. Bush, who nominated Christie as U.S. Attorney. Christie left the firm to take office on January 17, 2002. Palatucci remained a partner until 2005, and Guerrero left in September 2009 to serve as in-house counsel to the Elizabeth Board of Education before moving into the governor’s office when Christie took office in January 2010.

Before Christie took office, the Ethics Commission had always had a tradition of nonpartisan executive directors, Schluter said.

“Rita Strmensky served ably for 15 years under both Democratic and Republican governors who respected her independence,” he said. “When she announced she was leaving, Paula Franzese, our chairman and one of the most respected ethics experts in the entire country, put together a professional search and we considered a lot of outside candidates before deciding that Kathy Wiechnik, who had been serving as Rita’s deputy and learning under her, was the best choice.”

The Dissenting Vote

Schluter was the only commission member to vote against Christie’s choice of Tober, a Bernardsville lawyer who had been serving as a special counsel in his governor’s office since his inauguration 13 months earlier, to replace nonpartisan Executive Director Kathleen Wiechnik in February 2011.

“Andrew Berns called me and told me, ‘We’re going to replace her (Wiechnik) and we’re going to put in a new person from the governor’s office because that’s what the governor wants.’” Schluter recalled. “I wrote to Rich Bagger, the governor’s chief of staff, and objected strenuously to the fact that a new person was being put in just because the governor wanted his own person.”

Schluter’s protest was unavailing, and Tober was appointed with only Schluter in opposition.

Christie, who had rejected Schluter’s advice in 2010 to keep Franzese on as the Ethics Commission chair, chose not to reappoint Schluter either after his protest of Wiechnik’s ouster. When Schluter’s term expired last March, “I got a call from someone named Vinnie in the governor’s appointments office who told me I was a holdover and I was not being reappointed because the governor wanted his own person,” Schluter recalled.

More Trouble

Schluter’s complaint about Christie’s direct involvement in the appointment of two Ethics Commission executive directors is not the only controversy that has swirled around the commission in recent weeks.

Jeff Tittel, director of the New Jersey chapter of the Sierra Club, and David Pringle, director of the New Jersey Environmental Federation, both complained publicly that the Christie administration strong-armed the Ethics Commission two weeks ago to get a Pinelands Commission member barred from voting on a project represented by Samson’s law firm.

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With a close vote expected on the proposal to allow South Jersey Gas to run a pipeline across 22 miles of protected preserve to connect with its BL England plant, Christie’s governor’s office went to the state Ethics Commission to get an order directing Ed Lloyd, a Pinelands Commission board member who serves as codirector of the Eastern Environmental Law Center, to recuse himself from voting.

Lloyd said the Pinelands Commission’s executive director told him that it was the governor’s office that went to the Ethics Commission to get a ruling that Lloyd was in conflict of interest because the nonprofit had written a letter to the Pinelands Commission asking for another public hearing on the pipeline. Lloyd said he never saw the letter, which had been withdrawn the next day. Despite Lloyd’s abstention, the motion to approve the pipeline failed by a 7-7 vote in a rare defeat for the Christie administration.

In a second controversy, Daniel Aubrey, a writer whom Guadagno wrongfully accused of contract fraud as part of her 2010 campaign to oust the nonpartisan executive director of the New Jersey State Council on the Arts, said the Ethics Commission never responded to his subsequent complaint against Guadagno.

Aubrey’s allegation was contained in documents he submitted to NJ Spotlight and was reported Monday in The New York Times. This was just 10 days after Zimmer went on MSNBC to accuse Guadagno of transmitting Christie’s threat to withhold Sandy aid.

Franzese, who served along with the late Daniel J. O’Hern, a former state Supreme Court associate justice, as special ethics counsel to Gov. Codey, said in a recent interview that the renewed public interest in ethics issues in the wake of the Bridgegate and Hoboken allegations could provide an opportunity to complete implementation of the reform agenda set out in 2005.

“When Justice O’Hern and I developed the template for the new state Ethics Commission to replace the old Executive Commission on Ethical Standards, it was our strong recommendation that the commission be composed fully of public members, and not have any representatives from the current administration serving on the commission,” Franzese said.

“The law that was passed in 2005 moved incrementally toward that model with four public members and three members from the government as a minority in the belief that having members of government who understood the nuances and understood how government worked could inform the outside perspective of the public members,” she said. “In my experience serving for four years until 2010, the model worked, but it takes a strong chair and strong public members to keep the commission independent and nonpartisan.”

Franzese suggested there may be other ways to ensure the independence of the commission.

“Bipartisan commissions have worked in the past,” she noted. “It would be an interesting idea to have the members of the Ethics Commission appointed by a panel of retired Supreme Court justices who would be charged with vetting the candidates. This would lend further immunization from the idea that influence could be brought to bear by the branch of government over which the commission must serve as watchdog.”

Franzese and Ingrid Reed, who chaired the Governor’s Task Force on Local Government Ethics that started under Democratic Gov. Jon Corzine and finished under Christie, both said that the next round of ethics reform should apply to the state’s ethics code to New Jersey’s hundreds of municipal and county governments and authorities, which were exempted when the 2005 ethics law was approved. (Reed also serves as chairwoman of NJ Spotlight’s board.)

“Sadly, the problem of corruption in government is by no means unique to our state,” Franzese said. “We have a toxic mix of business, money, and politics. Public office cannot be for private gain or for purposes of influence-peddling. It must be used solely for the public trust, unaffected by any modicum of self-interest or personal enrichment or the enrichment of those with whom one has formed personal alliances.”