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Christie Administration Plays Ugly Hardball In Pinelands Pipeline Controversy

The Curious Case of a Commissioner’s Recusal

Attorney General’s Office and Ethics Commission Target Critic 

Days After Voicing Criticism of Review Process, Commissioner Ed Lloyd Barred 

The real reason why Lloyd was decapitated

“It’s like we’ve been rearranging the deck chairs on the Titanic. It’s time to look at the iceberg.” ~~~  Ed Lloyd, NJ Pinelands Commissioner, during meeting on December 4, 2013, reported in  Among Pinelands commissioners, qualms over proposed pipeline

[Update: 1/9/14 – Mike Powell of the NY Times nails it:  Fighting a Pipeline, but Feeling and Fearing Christie’s Influence - we’re pleased to have contributed to that effort.  - end update]

By now, it is widely known that Pinelands Commissioner Ed Lloyd was issued a highly unusual mandatory recusal Order by the State Ethics Commission just hours prior to last Friday’s meeting.

[Correction: According to the NY Times story today, the recusal Order did NOT come from the State Ethics Commission, but from orders from the Gov. office, implemented by either the Attorney General’s Office or Ms. Roth, the Pinelands Ethics Officer.]

I’d like to explain why that Order was issued and why it is so important.

On December 12, the NJ State Ethics Commission issued an oral opinion to Lloyd over the phone with no process whatsoever, providing no written ethics charge as to the alleged factual and legal basis for Lloyd’s alleged conflict of interest. The Order pre-empted any opportunity for Lloyd to seek guidance from the Pineland Commission’s Ethics Officer, or his own private attorney , or an advisory opinion from the Ethics Commission, as the Ethics Commission’s own rules provide, or otherwise rebut or challenge the Ethics Commission’s facts or decision.

Curiously, according to Lloyd’s chronology, the Ethics Commission’s Thursday (12/12) afternoon Order followed a prior call on Friday December 6 from the Attorney General’s Office. The AG’s call, which asked Lloyd to recuse, came just 2 days after Lloyd’s critical comments at the December 4 meeting of the P&I Committee (see quote above from Philadelphia Inquirer story).

So, the latest episode in this pattern is very unusual, to say the least.

How did an ethics allegation get to the AG’s Office? How then was the Ethics Commission apprised? Who filed the ethics allegation and on what basis? Were the AG’s Office and Ethics Commission in contact with each other?

Ironically, one could say the Ethics Commission acted unethically, at least procedurally, because their Order lacked any process, never mind due process.  Because of the prior AG intervention, the Ethics Commission’s Order created the reasonable appearance of a conspiracy to target Lloyd in retaliation for his criticism of the Commission’s review of the pipeline.

The alleged basis for Lloyd’s alleged conflict of interest is that Lloyd is on the Board of the Eastern Environmental Law Center (EELC). Apparently, and the details and timing here remain fuzzy, a junior EELC lawyer wrote a letter to Chairman Lohbauer urging an extension of the public comment period and identifying a defect in the Commission’s public notice of the pipeline hearing on December 9. That EELC  letter was not written on behalf of any client and it took no policy position.

Subsequently, at some point the letter was withdrawn by an EELC senior lawyer because it violated EELC policy which prohibits intervention without representing a client. Lloyd has no involvement in the day to day operations of EELC lawyers and was not aware of the letter in question.

So, the basis for a the alleged conflict is tenuous, at best.

Read the news reports for the details, see:

But aside from these details and chronology, it is critically important to understand why Commissioner Lloyd was targeted and disqualified from participating in the Commission’s deliberations.

The reasons are twofold:

1) At the December 4 meeting, Lloyd did not just make a red meat “Deck chairs on the Titanic” soundbite criticism.

Lloyd is a prominent and highly competent lawyer. He is a professor at Columbia Law School. He is an intellectual leader on the Commission.

On December 4, Lloyd broached the fundamental legal and policy issue and exposed fatal flaws in the Commission’s reliance upon the MOA mechanism to circumvent the CMP and the review of the draft MOA (see: All Hell Broke Loose Today at Pinelands Commission).

Lloyd correctly noted that the appropriate mechanisms under CMP rules was a “waiver of strict compliance” (see NJAC 7:50-4.61 et seq), not the MOA pathway. The waiver alternative has stricter standards and would avoid the appearance of the $8 million bribe created by the MOA. It is a far superior alternative path.

Lloyd challenged his fellow Commissioners to consider the basic legal and policy issue of whether the waiver mechanisms should be pursued instead of the legally and ethically flawed MOA.

It was widely expected that Lloyd would lead that discussion at the Friday (12/13) Commission meeting. That discussion had a very good chance of derailing the MOA and the proposed pipeline, in favor of the “waiver of strict compliance” alternative review path.

Lloyd was knocked out to prevent that discussion among the Commissioners.

The Christie Administration did not force Lloyd out of VOTING on the pipeline MOA (he was a certain NO), they decapitated him as a preemptive strike to avoid Commission discussion of the waiver option.

Supporters of the pipeline need 8 YES votes – (that’s why they rushed in such an unseemly way to fill recently deceased Commissioner John Haas’ seat).

Lloyd was a certain NO vote. It does not help them get to 8 YES votes by eliminating a NO vote.

Decapitation of the intellectual leader to prevent public discussion of a better alternative is why this was done – and that’s what makes it so ugly and Nixonian.

2) Secondarily, Lloyd was targeted to intimidate and send a message to any other Commissioners who might be undecided or exploring their consciences.

The message was loud and crystal clear: a NO vote on the pipeline will lead to your replacement on the Commission (see:

The Governor already did that last year at the D&R Canal Commission, and for far less important stakes, see:

The true face of of the Christie Administration was unmasked in these attacks on the independence and integrity of the Pinelands Commission.

We are witnessing an absolutely terrifying display of raw power, arrogance, lawlessness, retaliatory intimidation and a transparent effort to crush dissent and send a message to any Pinelands Commissioner’s who might vote to block the Administration’s pipeline.

Someone must stand up and say NO to this un-American display.

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