We Don’t Find Constitutional Government “Frivolous”

Reply to Press of Atlantic City Editorial

[Update: 1/28/15 –  I forgot to mention one thing – the editorial makes an “everybody does it” so it’s OK argument”:

Politicians write letters like that all the time.

Former Assemblyman Van Pelt made that same argument when he was indicted for taking a bribe to expedite a CAFRA permit at DEP.  ~~~ end update]

In the most recent episode in a pattern of cheerleading in support of the South Jersey Gas Co.’s Pinelands pipeline, the Press of Atlantic City wrote a dismissive editorial yesterday on the Fiocchi ethics case, calling the complaint “frivolous at best, if not downright disingenuous.” see:

• Fiocchi ethics complaint / Frivolous at best

I requested opportunity to respond and the editors agreed to 350 words – here is my full reply, let’s see how they edit it down to 350 words.

We followed a similar line of argument as Chairman Lohbauer in his statement opposing the MOA.

Dear editor:

Re: Fiocchi ethics complain/Frivolous at best (editorial,1/26/15)

The Press of Atlantic City editorial board consistently has supported the South Jersey Gas Co.’s (SJG) proposed pipeline through the Pinelands National Reserve, despite the fact that – as even SJG admits – Pinelands Commission staff found: ” the proposed pipeline development was not consistent with the Forest Area land use standards”. 

That pro-pipeline position is your editorial prerogative.

But editorials should be based on factually accurate information and a clear understandings of the issues at play.

Which takes us to yesterday’s editorial, which described an ethics complaint filed against Assemblyman Fiocchi for his political intervention in the Pinelands Commission’s SJG pipeline review process.

The editorial dismissed that complaint as “frivolous at best, if not downright disingenuous” and” “pretty much nonsense”. 

The editorial took particularly strong exception to my claim that Assemblyman Fiocchi had effectively urged the Pinelands Commission to violate the law, concluding:

“There was and is a legal mechanism for the Pinelands Commission to approve this project.”

As one of the complainants in that ethics matter, I take personal offense and must strongly disagree with this characterization and point out its errors of fact and law.

First off, the editorial completely misunderstands the basis for my claim regarding “violation of law”, which was Fiocchi’s demand that the Pinelands Commission consider jobs, economic development, and energy reliability as the basis to approve the pipeline.

By law, the Pinelands must base decisions exclusively on the Pinelands Protection Act and the standards in the Comprehensive Management Plan (CMP).

The CMP does not authorize the Commission to approve a project on the basis of Fiocchi’s recommendations, thus he literally was urging the Commission to violate the law and their duty to enforce and implement the CMP.

Yes, as the editorial notes, there are two legal mechanisms for the Pinelands Commission to approve the pipeline under the Pinelands’ Comprehensive Management Plan (CMP): 1) a Memorandum of Agreement (MOA); or 2) a Waiver of strict compliance.

However, neither of those mechanisms allow the Commission to base a decision on jobs or economic development or energy resilience as Fiocchi demanded.

Second, I note that the Chairman of the Joint Legislative Committee on Ethical Standards, a lawyer and former NJ Supreme Court Justice, said this, quoted in a Nov. 18, 2014 Press of Atlantic City story:

“Mr. Wolfe raised some very interesting points in his presentation to the committee this morning.”  

On the basis of my Nov. 18 testimony, the Ethics Committee rejected their own legal Counsel’s recommendation to dismiss the complaint for lack of probable cause.

Accordingly, my claims were obviously not “frivolous” and “disingenuous” and it is a lie to characterize them as such in an editorial.

Rather, just the opposite: they raised serious legal and ethical issues regarding the separation of powers between legislative and executive branch independent agencies like the Pinelands Commission.

The Commission is legally obligated to make decisions exclusively based on the Pinelands Protection Act and the standards adopted in the Comprehensive Management Plan, and must do so in an open, objective, and impartial manner free from undue political or economic influence and abuse of power and authority. 

Under NJ ethics laws, Assemblyman Fiochi is prohibited from intervening in a “contested case”. The pipeline is now before the Appellate Division, as a result of a SJG lawsuit. The ethics complaint raised a valid legal question about whether the pipeline remains a “contested case” before the Pinelands Commission

A Legislator also has a duty to avoid behavior that could create the public appearance that the public trust was being violated and he must avoid behavior that could undermine the public’s trust and confidence in the Commission.

Political campaigns to bring political pressure to bear on an independent agency – that are initiated, organized and led by Legislators – that serve the economic interests of private corporations like SJG and Rockland Capital (owner of BL England) undermine the public’s trust in government and create the appearance of the use of undue political interference in what are supposed to be independent fact and law based deliberations of the Pinelands Commission.

And, in closing, we don’t find our Constitutional principles “frivolous”.

Assemblyman Fiocchi’s political campaign and attack on the Pinelands Commission trampled on those foundational notions of our Constitutional government.

It is shocking that a newspaper editorial board will dismiss such concerns as “frivolous”.