NJ Records Council helps Christie avoid election year scandal

The New Jersey agency entrusted with ensuring access to public records may be Gov. Chris Christie's biggest ally for keeping a pension scandal secret in an election year.

After a sudden decision last year not to review state Treasury documents that could incriminate Lt. Gov. Kim Guadagno, the Government Records Council sat on the case five months before transferring it to the Office of Administrative Law.

The council voted in December to punt the case to OAL. Yet GRC staff waited until this month to send the file, despite an assurance the referral would only take a week or two.

"The delay was due to a work backlog in the Government Records Council," said spokeswoman Lisa Ryan. She would not elaborate.

As a result, a 2-year-old appeal by New Jersey Watchdog returns to Square One. It now appears unlikely the case will decided – or documents released – until after the November gubernatorial election.

The circumstances raise doubt on whether GRC can be trusted with disputes over executive branch records. All members of the council are either Christie cabinet members or public members appointed by the governor. GRC's executive director, Brandon Minde, is Christie's former assistant legal counsel.

Ironically, Christie campaigned on a platform of reform and open government when he was elected governor in 2009.

The contested records involve an alleged pension scheme while Guadagno was Monmouth County sheriff. The story was first reported by New Jersey Watchdog in 2010.

Treasury officials gathered the documents during an inquiry of whether Guadagno's chief officer, Michael W. Donovan Jr., improperly collected nearly $85,000 a year in state retirement pay in addition to his $87,500 annual salary.

In 2008, Guadagno hired Donovan, a retired investigator for the county prosecutor, as the sheriff's "chief of law enforcement division." She announced the appointment in a memo to her staff. Thesheriff's official website subsequently identified Donovan as "sheriff's officer chief," supervising 115 subordinate officers and 30 civilian employees.

But Donovan faced a legal problem. As a sheriff's officer chief — a position covered by the pension system — Donovan should have been required to stop receiving pension checks, plus resume his contributions to the state retirement fund.

So Guadagno lied about Donovan's job title, enabling her chief officer to double-dip.

In county payroll records, the oath of office and a news release, Donovan was listed as the sheriff's "chief warrant officer" — a similar sounding, but low-ranking position that's exempt from the pension system. A chief warrant officer is responsible for serving warrants and other legal documents.

On Guadagno's organizational chart, Donovan was listed as chief of law enforcement. The position of chief warrant officer cannot be found on the chart.

The following year, Donovan campaigned for Guadagno and Gov. Chris Christie as Monmouth County chairman of the "Law Enforcement for Christie-Guadagno" team in the gubernatorial election. (Click here for New Jersey Watchdog's story on LECG's 12 double-dippers.)

While sheriff's chief, Donovan pocketed $227,000 in checks from the Police and Firemen's Retirement System. Since he did not re-enroll in PFRS, he avoided another $18,000 in contributions. If the state decides Donovan violated pension law, he could be forced to repay $245,000.

The stakes are also high for Guadagno. Under state statute, "Any person who shall knowingly make any false statement or shall falsify or permit to be falsified any record or records of this retirement system … shall be guilty of a misdemeanor."

The Treasury failed to take conclusive action after its review. Not satisfied with the result, the PFRS Board of Trustees voted in May 2011 to call for a criminal investigation of Donovan — plus parallel instances involving John Dough, of Essex County, and Harold Gibson, of Union County.

The case was referred to the Attorney General's Division of Criminal Justice. However, the DCJ investigation is riddled with potential conflicts of interest. Guadagno is DCJ's former deputy director; she held the post from 1998 to 2001.

Attorney General Jeffrey Chiesa, a Christie appointee, is ultimately in charge of the probe of fellow cabinet member Guadagno. Chiesa is former chief legal counsel to Christie.

Christie has not publicly addressed the issue of whether an independent prosecutor should be appointed to handle the case. Spokespeople for Christie and Guadagno have declined to comment. Representatives for Chiesa have not responded to questions about the investigation.

The records battle began in March 2011 with an OPRA request by New Jersey Watchdog. WhenTreasury officials refused to release the documents, New Jersey Watchdog filed its complaint with GRC.

In its July 2012 decision, GRC ordered Treasury to produce the records for an in-camera review to determine which records, if any, should be released to New Jersey Watchdog.

Treasury appealed to the Appellate Division of Superior Court. The motion by the Attorney Generalon behalf of Treasury was opposed by briefs from New Jersey Watchdog and GRC.

In November, the court upheld the GRC's authority to review the records.  But rather than proceed with the case, the council suddenly quit.

"Because of the nature of the subject of this complaint, this complaint should be referred to the Office of Administrative Law…" according to a draft of the GRC staff recommendation released just before the Dec. 18 meeting.

But as soon as the meeting began, the council went into executive session to discuss the case in private – and change the wording of the resolution it would adopt.

When the public was invited to return, the reference to "the nature of the subject of this complaint" and its political inference had disappeared. The council claimed GRC did not have the resources or staff to finish the case it had been working on for a year-and-a-half.

Nearly five months later, GRC finally sent the file with a two-paragraph transmittal letter to OAL, an agency that rarely handles public records disputes.

"We ask that you consider scheduling this case for a hearing as expeditiously as possible," wrote GRC's Minde.

At OAL, the administrative law judges are also gubernatorial appointees. The chief judge presides over the office and reports directly to Christie.

Any decision by OAL is subject to appeal in the courts.

Contact Mark Lagerkvist at mark@NJwatchdog.org.

Lagerkvist is a veteran investigative reporter who has won more than 60 journalism honors – including three Emmys and major awards from the National Press Club, Scripps-Howard Foundation, United Press International and Investigative Reporters & Editors.