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Campaign-finance case against powerful N.J. Dem hits snag

TRENTON - A three-judge appeals panel on Monday delivered a setback to a state election watchdog's efforts to pursue campaign-finance violations against a North Jersey Democratic power broker accused of misusing thousands of dollars.

Joe DiVicenzo, Essex County executive.
Joe DiVicenzo, Essex County executive.Read more(File photo)

TRENTON - A three-judge appeals panel on Monday delivered a setback to a state election watchdog's efforts to pursue campaign-finance violations against a North Jersey Democratic power broker accused of misusing thousands of dollars.

The Election Law Enforcement Commission had filed a complaint alleging that Essex County Executive Joe DiVincenzo used funds raised during his 2010 campaign for such things as a gym membership, paying a parking ticket, a television, and a trip to Puerto Rico.

"We're reviewing the ruling and considering our options," a spokesman for the commission said.

The judges ruled on procedural grounds, and the case could ultimately head to the New Jersey Supreme Court.

An administrative law judge last year ruled that the election commission lacked a quorum to issue the complaint because only two on the four-member commission voted for it. Both were Republicans. One seat was vacant, and the only Democrat on the commission, Walter Timpone, recused himself because of a conflict of interest.

The state Senate on Monday confirmed Timpone to the state Supreme Court, upon Gov. Christie's nomination.

During his confirmation hearing last week before the Senate Judiciary Committee, Timpone, 65, said he would recuse himself from any case involving DiVincenzo that advanced to the high court.

Responding to the administrative law judge's recommendation, the commission, known as ELEC, appealed to seek additional time "for a period of 45 days after the governor nominates and the state Senate confirms persons to fill the two vacancies on the commission." (Another commissioner, Republican Amos Saunders, died a month before the judge's ruling, leaving ELEC with just two members, including Timpone.)

Under New Jersey law, the judge's recommendation is subject to review by ELEC. The agency had 90 days to adopt, modify, or reject the recommendation. Otherwise, the recommendation would be adopted.

ELEC sought the extension, conceding that it could not act with just one commissioner.

The Appellate Division panel on Monday ruled that the commission had failed "to show by clear and convincing evidence that it will suffer irreparable harm if the indefinite stay requested is not granted."

That does not mean the case is over. The three-judge panel did not rule on the merits of the administrative law judge's decision regarding the quorum question. It also was not asked to consider whether the failure by the Legislature and Christie to fill the vacancies "is tantamount to action that strips an agency of its statutory authority and obligations."

Instead, the panel had to decide whether ELEC would suffer irreparable harm, among other legal burdens, if the law judge's recommendation were adopted without further review from a fully staffed ELEC.

"ELEC advances a legitimate concern that the public's confidence in the integrity of the political process may be compromised when its enforcement efforts are hobbled by the actions and inaction of other branches of government," Judge Marianne Espinosa wrote for the panel.

"However, the public - and respondents - also have an interest in having such enforcement efforts resolved in a reasonable, and not unlimited, period of time, rather than have unproven allegations of wrongdoing endure."

The panel also pointed to a possible path forward for ELEC. The judges suggested ELEC could file a new complaint once it is fully staffed, because it has 10 years before the statute of limitations takes effect. Also, "an administrative agency has the inherent power to reconsider its own final decision," the panel wrote.

A spokesman for DiVincenzo said in a statement: "We are pleased that the Appellate Court agreed with us that ELEC is not entitled to further extensions to consider the administrative law judge's initial decision and supports our requests to dismiss the matter."

"We always have maintained that the public, candidates, and elected officials are served when ELEC abides by the rules governing the timetable to review ALJ recommendations and, most importantly, that when ELEC acts, it does so with a bipartisan quorum," the statement said.

DiVincenzo, a Democrat, endorsed Christie's reelection campaign in 2013. He has helped Christie pass some of the Republican governor's chief accomplishments, such as the pension and health benefit overhaul for public employees in 2011.

The decision raised questions about Timpone's testimony before the Senate Judiciary Committee last week, when he said he had recused himself from the case because DiVincenzo had once secured Timpone's nephew a job. DiVincenzo and the nephew later had a falling out, Timpone said.

While Timpone did recuse himself from the vote to issue the complaint, he subsequently withdrew his recusal in September 2015 to seek the 45-day extension from the court. In July 2011, he had joined the three other members in authorizing an investigation into DiVincenzo.