Legislative Ethics Panel Will Investigate Complaint Against Assemblyman Fiocchi for Intervention In Pinelands Commission’s Pipeline Review

Issues at Play: Who was Assemblyman Fiocchi “representing”, was Fiocchi engaged in “lobbying”, and what is representative democracy? What is an independent State agency? What role can politics play in regulatory decisions? Does a Legislator’s intervention in an independent agency’s regulatory decision overstep separation of powers?

Joint Legislative Committee on Ethical Standards – Chaired by John E. Wallace, Jr., a former NJ Supreme Court Justice not re-appointed by Gov. Christie (11/18/14)

[Update: Press of Atlantic City Story:

• Ethics panel finds cause to continue complaint against Fiocchi

“I applaud the committee’s thoughtful deliberation,” said Bill Wolfe, of Bordentown, N.J., director of the state chapter of Public Employees for Environmental Responsibility (PEER). Wolfe, one of the complainants, was granted permission by committee chair John Wallace to address the ruling body at the end of counsel’s 45-minute rebuttal of any wrongdoing by the assemblyman. “It is highly unusual for government to have the courage to reverse professional counsel’s recommendation.”

Wolfe called Fiocchi’s actions “a legislator’s effort to manipulate his constituents” and said the assemblyman’s plea to his constituents to take up a cause he champions “turned democracy on its head.”

“Mr. Wolfe raised some very interesting points in his presentation to the committee this morning,” [Chairman] Wallace said, calling for the group to go into closed session to seek advice from counsel.

“The committee is sending a message to the legislature to beware of lines where they can and cannot go,” Wolfe said. “The mere taking of jurisdiction of the case, the reversing of the staff recommendation and the intention to conduct a real investigation is very encouraging.”

Today, the Joint Legislative Committee on Ethical Standards agreed to accept jurisdiction and conduct an investigation of an ethics complaint filed against Assembly Fiocchi (R-Cape May) for his intervention in the Pinelands Commission’s pipeline review process.

The complaint was filed by Georgina Shanley and several others involved in the pipeline battle.

In a stunning and unusual move, the Committee, based on testimony by (yours truly) Bill Wolfe, rejected the Committee Counsel’s recommendations to dismiss the complaint for lack of probable cause of an ethics violation.

Instead, the Chairman of Commission directed Counsel to conduct an in depth investigation of the concerns Wolfe raised and allow Assemblyman Fiocchi and the complainants 10 days to submit additional arguments and supporting  facts.

A blow by blow of the hearing

The Committee Counsel began by making a thorough presentation of the facts, described the complaint, and concluded with his analysis and recommendations to dismiss the complaint.

Counsel dismissed the complaint’s claim that Fiocchi was effectively representing SJG before the Pinelands Commission, finding that claim lacking in factual support. Counsel found no evidence that Fiocchi was “representing” SJG or Rockland Electric before a State agency.

Former Assemblywoman Quigley made a statement in defense of Fiocchi.

Before the Committee could entertain what appeared to be a pending motion to dismiss the complaint based on Counsel’s recommendation, Wolfe rose from the audience to make a procedural point of inquiry and request to provide testimony to clarify Counsel’s analysis.

The Chairman replied that public testimony was not part of the Committee’s standard operating procedure and then consulted with Counsel. After several minutes of informal consultation, the Chairman decided to allow Wolfe to testify.

Wolfe then testified, opening by claiming that the Committee Counsel’s recommendation was based on questionable assumptions.

Specifically, Wolfe noted that Counsel characterized the Pinelands Commission’s review process as “political in nature”, as a “political interest of the day” that a legislator had a right and duty to speak out on and express his opinions on.

Wolfe noted that Counsel also assumed that the matter was not a live “contested case” and that the matter was over and no longer pending when Fiocchi intervened.

Wolfe instead characterized the Pinelands Commission’s review process as a regulatory proceeding, not a political matter.

Wolfe argued that the Commission’s decisions were made pursuant to statute and the regulations, policies, standards, criteria, and procedures adopted in the Pinelands Comprehensive Management Plan.

Wolfe said that Fiochi was not responding to a constituent’s concern about a state agency. Fiocchi initiated the letter to his constituents and urged them to act. Wolfe called that act “inverted democracy”.

Fiocchi’ intervention, as a legislator and outside the Pinelands Commission’s formal public comment procedures, tended to create an appearance that undermined the independence of the Pinelands Commission.

Wolfe also clarified that the matter was in fact still a live “contested case” as a result of the South Jersey Gas litigation, and the matter was still pending before the Appellate Division.

Despite the Commission’s 7-7 vote on the proposed MOA, the SJG pipeline application has never been withdrawn, thus the application technically still remains before the Pinelands Commission.

Wolfe claimed that Fiocchi effectively was acting as a lobbyist, seeking to influence government processes, in essence “representing” the interests of SJG.

Wolfe called Fiocchi’s letter writing campaign a non-transparent “over the transom” form of involvement in government decisions.

The Chairman thanked Wolfe for his testimony, noted it raised interesting points, and then adjourned to executive session to discuss the matter.

Upon returning from Executive Session about 15 minutes later, the Chairman directed Counsel to conduct additional investigation, to find additional facts, and research the issues raised in light of Wolfe’s testimony.

Listen to hearing:

The complaint alleges that Assemblyman Fiocchi abused his legislative powers to advance the private interests of South Jersey Gas and compromised the independence and integrity of the Pinelands Commission’s review process.

(1)  We believe that this action injects raw politics into the regulatory deliberations of an independent State agency that is partnered with local and federal governments – the Pinelands Commission. This kind of manipulation by a legislator is highly improper and “creates a justifiable impression among the public that such trust is being violated.”

(2)  We believe that the petition serves the interests of the South Jersey Gas Company & Rockland Capital Industries, parties “other than the State”

(3)  We also believe that the petition is a form of lobbying and represents a disguised “appearance” before a State agency that is prohibited by law

(4)  The petition also spends taxpayer dollars to advance an improper and partisan political interest.

I was impressed by the thoughtful research, analysis, and deliberations of this Committee.

We will keep you posted as this matter progresses.