Friday, February 16, 2007

A Modern Day Battle Brews in Trenton

The burbling kerfuffle currently stewing in Trenton about the subpoena-suppressing actions initiated by the Office of Legislative Services (OLS), is emerging as a stand-alone political roadside attraction. Borne of the investigation by the United States Attorney’s Office into possible state budget-related criminal behavior on the part of certain New Jersey State legislators, this fight now appears to be walking, and not talking, all on its own.

Secrecy, money and power always rightly trigger intense public curiosity, and this one is clearly no different. Very few, it seems, bought the legislative leadership’s opening gambit -- just let the court decide. "Nuts," everyone seemed to say in unison!

As a result, light has been cast unexpectedly on an ordinarily little-noticed New Jersey legislative commission, the venerable and bi-partisan Legislative Services Commission (LSC). It is the one that, as described in Fitzgerald’s Legislative Manual, “supervises the operations of the Office of Legislative Services.”

An emerging picture of the operation of the Commission, however, is not too pretty. Supervision is apparently not even on their agenda. In fact, records show the Commission rarely complies with a statutory obligation to meet. It has no agenda. (See Update, 02/19, below)

LSC is currently chaired by Assemblyman, and current Speaker, Joe Roberts, a Democrat from Camden, who is as well, the 5th Legislative District running mate of Senator Wayne Bryant of Lawnside. You’ll recall numerous reports of Bryant’s personal fiscal shenanigans as the former Chair of the Appropriations Committee, including having allegedly prompted the creation of a no-show job for himself at the University of Medicine and Dentistry (UMDNJ). These actions were widely reported to have inspired the curiosity of federal investigators, and to have thereby instigated a growing scope to the federal probe into possible legislative malfeasance.

The background to the investigation was concisely summed up in a current Mitch Maddux Record story yesterday:

Federal prosecutors are investigating state Sen. Wayne Bryant, D-Camden, and examining his actions as the chairman of the Senate Budget and Appropriations Committee, one of the most powerful posts in Trenton.

The probe now appears to be looking beyond Bryant and focuses, in part, on grants and money for programs that are added in the 11th hour of budget negotiations.

Late last year, the U.S. Attorney's Office subpoenaed OLS, seeking a wide range of budget documents. The move suggested that the investigation was broadening beyond Bryant's job at the University of Medicine and Dentistry and into budget-related practices during his tenure as committee chairman.

Budget records and other documents have been turned over to the federal authorities, several legislative sources said Monday, speaking on condition of anonymity. OLS officials, however, are arguing that internal memos from lawmakers fall under an attorney-client privilege and should not be disclosed, those sources said.

In an exclusive Courier Post story, Gregory Volpe noted that OLS honcho and Legislative Counsel, Albert Porroni, finalized the hiring of an outside counsel on January 18th of this year to challenge some undefined aspect of the subpoenas the feds dropped on the Legislature a few months back. According to a joint statement by LSC member Senate President Richard Codey, Democrat of Essex, and Speaker Roberts, it was Porroni who drew their attention to the legal issue.

Codey and Roberts have been urging calm, and just letting the court decide, but not explaining at all why undefined issues regarding legislators' privileges and immunities, and the scope of investigative power into the legislature should be resolved without an opportunity for the legislators themselves to know what is being done in their names.

The Assembly Republicans, therefore, unanimously notified the court through counsel that they had played no part in initiating leaderships’ actions, and began publicly waiving any attorney-client privilege as to them. The indeterminate issue was reportedly briefed and argued yesterday before Federal Judge Mary Cooper, and all parties are now under a strict gag order.

But exactly how or when Porroni may have flagged the issue is currently unknown outside of the apparently tight-knit circle of persons who were involved in ultimately deciding to furtively bring outside counsel Edward Dauber aboard, and handing him a healthy dose of taxpayer money to help fight a portion of the U.S. Attorney’s subpoena in the criminal investigation. One thing that seems clear now is that LSC should have been involved in oversight from the beginning, but it apparently played no role at all.

The LSC Chairman, meanwhile, is responsible by law for calling quarterly and organizational meetings, N.J.S.A. 52:11-56(c), and at first, the Assembly Republicans demanded the convening of an emergency meeting of the LSC to air matters. The Democrats quickly nixed that idea. But that didn’t stop the Republicans. They duly noted that the statute above also specifies that nine members can submit a request in writing for a “special meeting” which then must be held. So all eight Republican members signed onto a letter and requested one Democrat to join them in pursuit of that procedure -- apparently unsuccessfully -- in an effort to force a showdown with Senate President Codey and Speaker Roberts over the hiring and actions of Dauber.

Though they failed to persuade any of the Democrats to join with them in forcing the convening of a meeting, the intense pressure did coerce a public relations reaction, because Codey and Roberts have now called for their hired counsel to petition the federal court, as reported in today’s Star Ledger, to allow the briefing of the other members of the Legislative Services Commission on the litigation.

The actions of Codey and Roberts seem disingenuous at best. They were the ones who kept the matter from the LSC in the first place, and permitted, or more likely, ordered Porroni to hire the counsel to secretly intervene in the federal probe. So their reported “complaints” now seem hollow, particularly since they are still actively blocking the convening of a meeting of the LSC to discuss why the issue was not initially referred to the Commission, and exactly how the outside counsel was hired. The Republicans have responded by demanding once again for a meeting of the LSC to air how this all "went down."

Those issues are presumably not the subject of the gag order, so the refusal by Codey and Roberts accordingly to allow such a meeting, indicates that they hope to keep looking for ways to slip back behind the skirts of Judge Cooper’s gag order.

LSC is supposed to be a purely bipartisan commission, with 16 members that by law oversee the Office of Legislative Services (OLS). Senator Leonard Lance, Republican of Hunterdon is the Vice-Chairman of LSC, and the other extant members of LSC are posted on the Legislature’s website.

The hiring of an outside counsel by OLS to challenge some as yet vague aspect of the subpoenas issued by the U.S. Attorney, has surely launched this fierce and coordinated partisan pushback by the Republican minority in both houses of the state’s legislature. That has sent other Democrat members of the obscure body quickly scurrying for cover, and certain support staff in the central office of OLS stonewalling on providing even the most basic public information.

According to details supplied in two telephone calls yesterday by the helpful folks over at the general legislative information line at 609-292-4840, the actual meetings of the LSC have been very few and far between over the past few years. There was, however, a recent meeting of LSC a little over a month ago, on January 9th. The meeting notice did not state the purpose or agenda, just time and location. According to Republican members of the LSC who attended that meeting, there was no mention of the hiring of Dauber, and no mention of an intention to fight any portion of the federal subpoena.

As per Legislative staff, the attendees at that meeting included: Senators Bucco, Codey (telephonically), Kenny (telephonically), and Lance. Assembly members present included Bateman, Biondi, Blee, Burzichelli, DeCroce, Quigley, Roberts, & Watson-Coleman (All present)

Absent from the meeting, therefore, were Senators Singer, Littell & Gill. There is one Democrat senate vacancy on LSC.

The last official meeting of LSC prior to that meeting, according to the folks at the legislative information hotline, was back on October 25, 2004, nearly two and a half years ago! A meeting scheduled for September 27th that year was cancelled, and the October meeting was the only meeting held in 2004. If those official records are correct, that means there were no meetings of the LSC held during calendar years 2005 and 2006.

By law, however, the LSC is required to hold at least one such meeting each and every calendar quarter, and further, to hold at least one reorganization meeting near the beginning of each even-numbered year. New Jersey holds its state legislative elections in the fall of the odd-numbered years, and so reorganization of the Commission after the newly elected or re-elected members are sworn in every other January, makes sense. They serve in that capacity as members for the duration of the two-year legislative session.

So legislative information hotline records indicate that at least eight calendar quarterly meetings were skipped, all required to have been held by law. And the reorganization meetings that should have been held at the beginning of both 2004 and 2006 were passed over as well.

The central offices of OLS were also contacted to verify that information earlier yesterday. At first, a staff employee confirmed over the phone that a meeting of the LSC was held on January 9th of this year, and she also confirmed that a meeting scheduled for December 4th had been cancelled, thus confirming that there was no meeting of the Commission during the fourth quarter of 2006. She also stated that some initial information given by the information line about a meeting scheduled for October, was erroneous. When called back, the information line staffer verified that there was no October meeting and that official computer records showed that there were no LSC meetings held between October 25, 2004 and January 9, 2007.

Thereafter, a staff employee from the central OLS office returned a call request for the meeting dates, and stated that, as per “the attorneys,” at OLS, no further information could be obtained by the caller without the formal written submission of an Open Public Meetings Act (OPRA) request – including the necessity of filing a written request for the mere confirmation of past meeting dates! That is stonewalling.

Back on the Fight Front

By late yesterday afternoon, Senator Codey and Speaker Roberts were offering their PR olive branch to the Republicans by putting out a statement indicating that counsel would be asking the court for permission to brief the entire membership of LSC.

But that offer, even in the unlikely event it could be fully met, does not answer several very basic questions regarding this whole matter:

  • Why did Albert Porroni not draw his concerns in this matter to the attention of the full LSC, the appropriate body under the circumstances?
  • Whose attention did he bring this to? If it was just to the Speaker and the Senate President, both partisan Democrats, how does he avoid having his actions thereafter viewed with suspicion?
  • Will Codey and Roberts invoke attorney/client privilege in refusing to allow Porroni to discuss his actions with the public, or with the minority?
  • If not LSC, who did approve the request to hire outside counsel to litigate against the United States Attorney in a criminal probe, one possibly involving serious malfeasance by one or more legislators? Was it just the Speaker and the Senate President? And if so, when?
  • The computer records of legislative information indicate violations of the law in not having meetings of LSA. Why has Commission Chairman Roberts repeatedly ignored his legal obligation under law to call for the statutorily mandated meetings of the Legislative Services Commission?
  • By refusing to permit a meeting, have Roberts and/or Codey concluded that LSC is a superannuated body?
  • Did he, as district running mate to Senator Bryant, have a conflict of interest in the role he played in secretly helping to arrange for outside counsel to attempt to frustrate some aspect of compliance with the federal criminal subpoenas?

And finally, someone should also be asking the federal court to permit the public to be informed of the legal issue that is being tested. The taxpayers certainly have a right to know what legal issue is now being litigated on their dime – especially since the investigation itself is reportedly looking into the secret spending of legislator(s) on behalf of themselves, and/or their families and close associates. It is an insulting double hit on them.

The court could maintain its gag order on the parties, while allowing just the statement of the legal issue being raised to be made public. That would not compromise either the legitimate law enforcement concerns of the prosecution, or the privacy concerns of those who have been drawn into the web of documentation. But releasing a statement of the legal issue or issues that have been raised could be very instructive to the public in helping them to evaluate the focus and level of concern for the voters that is currently being pursued by those they have elected to represent them in the legislature. A way should be found to make these matters a legitimate part of the public debate.

(Update, 02/19)

According to an article printed in both Monday’s Courier Post and Asbury Park Press by Gregory Volpe, a further squabble has now broken out over the hiring of the Mr. Dauber, the attorney who was hired through OLS to litigate the attorney-client issue for, as we now know, Senator Wayne Bryant.

Democrats complained that the LSC did not oversee the hiring of attorneys to litigate issues in the past, but Volpe reported that

Republicans say the current investigation, which brought subpoenas to all four legislative caucuses on Friday, should have prompted another meeting by now.

Volpe also examined the meeting minutes and confirmed that the Commission has not met anywhere near the statutorily required number of times over the past several years.

He reported that:

A review of the Legislative Services Commission's meeting minutes since 2000 had [confirmed that the] . . . commission has met once in 2000, 2003, 2005 and 2007; twice in 2004 and never in 2001, 2002 or 2006. It is required to meet four times per year. Meetings can be called by the chairman, or written request by nine of the 16 Legislators on the panel.

That means that the information first reported here (above) about the consistent failure of the Commission to hold statutorily required meetings since 2004, as gleaned from a call to the legislative information line, was correct with the sole exception that one meeting was apparently held in calendar year 2005. The statute mandates at least 4 meetings a year.

As noted above, on Friday, the central office of OLS refused to confirm past LSC meeting dates, insisting on the submission of a written OPRA request to obtain such cursory information.

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