Pinelands Commission Lawyer Obstructing Public Ethics Review Of Murphy’s Corporate Commissioners

No Ethics Disclosure, Review, And Recusal Conducted Prior To Swearing In Ceremony

Unclear Whether the Commission Will Require Ethics Disclosures and Mandate Recusal

Issues involving actual, potential, or the appearance of conflicts of interest by Gov. Murphy’s corporate nominees to the Pinelands Commission, Ms. Matos and Mr. McCurry, were raised by many immediately after their nominations were announced in December.

On December 3, 2021, Carleton Montgomery, Director of the Pinelands Preservation Alliance wrote:

In a truly shocking move, Governor Murphy today nominated three corporate lobbyists for the Pinelands Commission. They would replace three seasoned environmental leaders with years of service for the Pinelands.

All three of the new nominees appear to have fundamental conflicts of interest due to their employment as lobbyists for industry.  Only one of the three appears to have any prior interest at all in environmental protection.

A scathing Star Ledger editorial also raised concerns regarding the corporate backgrounds and conflicts of interest of these nominees. The Star Ledger editorial board excoriated the Gov.’s move as “a craven power play”, a “brazen” attempt to “gut the Commission during lame duck”, and a “scheme” that was similar to the “bullying” by Gov. Christie.

Testimony before the Senate Judiciary Committee in early January by David Pringle of Clean Water Action specifically raised concerns about conflicts of interest of the nominees.

I specifically flagged and anticipated ethics reviews:

a) the personal background and conflicting corporate economic interests of Laura Matos and Kivvit; (we can’t wait to see her ethics disclosure and recusal forms – identifying all Kivvit’s clients and all her prior corporate work)

b) the corporate conflicts of interest of McCurry and Orsted, (he’ll be forced to recuse as well, including on matters related to PSE&G, who owns a 25% interest in Orsted)

I was just seeking “the highest ethical standards” and attempting to hold Gov. Murphy to his own standards and rhetoric, in his Executive Order #2:

I had a heated debate with Senator Gopal regarding, among other things, conflicts of interest raised by the corporate backgrounds of these nominees.

So, there was plenty of writing on the wall.

Given the extent of this public debate focused on ethics issues, one would expect that the responsible State ethics officials and the Pinelands Commission ethics officer – as well as the nominees themselves – would want to be fully prepared and do everything in their power to respond to and assuage public concerns about ethics.

Moreover, given these unusual and troubling circumstances, it seems obvious that the nominees themselves would proactively take steps to respond to be sure to avoid any conflicts of interest and assure compliance with State ethics laws – and do so BEFORE their official swearing in ceremony at the Pinelands Commission.

Gov. Christie sure proved he could take preemptive ethics action, just the wrong kind, see:

• Attorney General Invokes Privileges To Gag Pinelands Commissioners From Discussing Christie’s Office Emails

These steps before swearing in (or a maximum of 120 days later for some financial documents) would include, at a minimum: 

1) compliance consultation with State Ethics officials and the Pinelands Commission’s ethics officer;

2) submission of ethics disclosure documents regarding their prior and current corporate work;

3) an explicit offer to recuse to prevent the appearance of any conflicts.

Additionally, if I were under this kind of dark cloud, I would prepare and present a public statement to be read into the record at my swearing in ceremony expressing my commitment to the public interest and promise to give ethical service on the Commission. I would then release my ethics disclosure documents and promise to recuse categorically from any potential conflicts that may arise as a condition of my swearing in, BEFORE THE FACT, not on a case by case basis after the public raises concerns.

Proceeding under these common sense assumptions, on January 14, 2022, I wrote Pinelands Commission ethics officer Stacey Roth a letter. My letter reiterated the previously publicly expressed ethics concerns, and requested that Ms. Roth take the following steps BEFORE the swearing in ceremony: (emphasis added)

1) Consult with your ethics liaison in the Attorney General’s Office regarding the procedure, scope, and content of the ethics review for these Commissioners and secure a formal written opinion providing legal guidance;

2) Consult with your ethics liaison at the State Ethics Commission regarding the procedure, scope, and content of the ethics review for these Commissioners and secure a formal written opinion providing ethics guidance;

3) require that both Commissioners file ethics disclosure and recusal request documents, prior to the AG and Ethics Commission consultations suggested above and incorporate those documents in the AG and Ethics Commission reviews.

I was not aware that the Commissioners were sworn in earlier that same day, Jan. 14, 2022.

Apparently, none of the common sense ethics disclosures, consultations and recusal work was conducted – not by the Commissioners, not by the Pinelands Commission, not by the Attorney General’s Office and not by the State Ethics Commission.

This lack of ethics review reveals a stunning degree of arrogance and obliviousness to OBVIOUS and SERIOUS ethics issues by all involved, including the Governor’s Office, who one would think would not want his nominees to be under a dark ethics cloud.

As I wrote: The State Uniform Ethics Code has a very broad standard regarding potential conflicting interests:

So, this is far more than an “optics” issue.

Let’s repeat that standard: impair a “State official’s objectivity and independence of judgment”.

Does anyone seriously believe that Ms. Matos can be “independent and objective” given -in addition to her many prior corporate and political commitments – that she so obviously is a Murphy crony and foot soldier installed at the Pinelands Commission to do Murphy’s bidding?

Laura also served on numerous boards for Governor Phil Murphy, including the 2017 Transportation and Infrastructure Transition Advisory Committee, the New Jersey Complete Count Commission and currently the Governor’s Restart and Recovery Advisory Council.

Does anyone seriously believe that Mr. McCurry – who served in Gov. Murphy’s Office and was installed at DEP by the Gov.’s Office in a position he clearly was unqualified for, and then used that “experience” to leverage a revolving door job with off shore wind developer and friend of Gov. Murphy Orsted – can exercise “objective and independent judgement”, especially when he’s a Murphy’ hack and paid to serve corporate interests?. Here’s what Orsted hired him to do:

McCurry will help develop and implement strategies to ensure the successful advancement of existing projects, Ocean Wind 1 and 2, inform efforts to secure additional business and shape Ørsted’s position and standing in the state. 

Getting back on the topic of this post, yesterday, Ms. Roth responded to my Jan. 14 letter – to put it mildly, Roth’s response was non-responsive and dismissive.

Roth observed that my request that ethics review be conducted BEFORE swearing in was impossible, as they were sworn in BEFORE my letter was received.

Roth used that timing as an excuse to misrepresent and avoid responding to my ethics review requests. She wrote:

Please be advised that Laura Matos and Davon McCurry were sworn in as members of the Pinelands Commission at the January 14, 2022, Pinelands Commission meeting, following the reading of the Open Public Meetings Act statement. Pinelands Commission meetings normally occur on the second Friday of the month and start at 9:30 am. I received your email requesting the Commission to delay administering the oath to Ms. Matos and Mr. McCurry at 2:57 pm, long after the Commission meeting had concluded.

I didn’t ask the Commission to “delay administering the oath“. I requested that she and the Commission and the AG’s Office and the State Ethics Commission conduct an ethics review BEFORE the Commissioners were sworn in.

Worse, she then again intentionally misconstrued and misrepresented my request:

The Pinelands Protection Act, at N.J.S.A.13:18A-5(a)1, authorizes the Governor to appoint seven members to the Commission with the advice and consent of the Senate. The Senate approved Ms. Matos’ and Mr. McCurry’s appointments to the Pinelands Commission on January 10, 2022. The Act does not provide a mechanism for the Commission itself or the Commission staff to appoint, vet or challenge Commissioner appointments.

I didn’t ask Roth or the Commission to “appoint, vet or challenge Commissioner appointments.”

I requested that Roth and the Commission comply with their ethics responsibilities pursuant to State Ethics laws.

Roth then closes her letter by failing to respond to my ethics review request. In doing so, she failed to state exactly when and if the ethics disclosure and review process would be conducted categorically and BEFORE potential conflicts emerge, or on a case by case basis AFTER conflicts are raised publicly:

With regard to potential conflicts of interest and participation in official Commission matters, please be advised that all Pinelands Commissioners, as Special State Officers, are subject to the requirements of the New Jersey Conflicts of Interest Law, N.J.S.A. 52:13D-12 et seq., the regulations of the State Ethics Commission at N.J.A.C. 19:61 implementing same, the Uniform Code of Ethics and other ethics requirements pursuant to other statutes and gubernatorial Executive Orders.

Accordingly, Commissioners are required to recuse themselves from any official matter in which s/he has a direct or indirect financial or personal interest that is incompatible with the proper discharge of his/her public duties. N.J.S.A. 52:13D -23(e)2 and Uniform Code of Ethics, last revised July 2021, Paragraph IX Recusal on Official Matters. Commissioners are also required to recuse themselves from any official matter if s/he had any involvement in that matter, other than on behalf of the State, prior to commencement of his/her State service. Thus, the concerns raised in your letter regarding potential conflicts of interest, should such arise, would be addressed by the recusal process.

That’s it.

No mention of just when that “recusal process” will occur. No mention of disclosure documents. No mention of AG or State Ethics Commission consultation.

Hello!

All that should have occurred already!

I now must file OPRA requests for the ethics disclosure documents and write to the State Ethics Commission to request intervention to force public disclosure and a categorical recusal before the fact.

Ms. Roth is a lousy lawyer – as I exposed twice now, first during the Pinelands SJG pipeline debate and then by disclosing her false legal advice that the Commission had no authority to address climate change in the CMP, a legal opinion that the Commission itself has rejected 7 years later, see:

• Pinelands Commission Lawyer Claims Agency Lacks Power To Consider Climate Change In Review of $500 Million Fossil Infrastructure Project

• The Pinelands Commission Finally Takes A First Baby Step On Climate Policy

But this “legal opinion” shows her not only to be a lousy lawyer, but a disingenuous one as well that intentionally misconstrued my request, and I believe it was done in bad faith, as I previously [correction] wrote about an ethics complaint against her:

• Ethics Complaint Filed Against Pinelands Commission Lawyer

It also reveals Ms. Roth to be arrogant and totally insensitive to legitimate public concerns.

[End Note: Regardless of minimum legal requirements and the policy of Gov. Murphy’s Executive Order #2, financial and ethics disclosure documents should have already been filed with the Gov. appointments office prior to nomination, so that they could determine the qualifications of the nominees, and if they had fatal conflicts that could not be remedied.

Similarly, the Senate Judiciary Committee should have reviewed ethics disclosure documents prior to confirmation as part of the Senate’s “advise and consent” role.

Of course, the Pinelands Commission should have reviewed ethics disclosure documents and prepared recusal agreements BEFORE the Commissioners were sworn in, making them a condition of se4rvice on the Commission.

But none of this happened.

I did more rigorous due diligence before voting on minor matters before the North Hanover school board I served on.

And that does not reflect the “highest ethical standards and conduct” promised by Gov. Murphy’s Executive Order #2. So we have another example of hypocrisy. ~~~ end]