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 Gov.’s Office emails with Commission on controversial gas pipeline heavily redacted 

What is the Governor’s Office hiding by redactions and Privilege claims?

Bridge-Gate in the Pines

“There was a degree of closeness between the applicant and staff that went beyond the neutrality appropriate to a review process,” said [Pinelands Commission Chairman] Lohbauer, a lawyer. ~~~ Philadelphia Inquirer (1/26/15)

[Update below]

At the direction of the Attorney General’s Office, who invoked attorney client and deliberative process Privileges, today the Pinelands Commission passed a Resolution that bars Commission members from publicly releasing or discussing emails between the Governor’s Office and the Pinelands Commission. In other words, a gag order. And the gag is broad: it applies not only to the documents themselves, but also the information contained in the documents:

Source: Pinelands Commission Resolution No. PC 15-02 (1/30/15)

I can’t recall an AG – clearly to prevent disclosure of documents from the Governor’s Office – ever invoking these Privileges to gag an independent regulatory Commission from reviewing and talking about public documents that were already in the public record or subject to OPRA litigation.

The highly unusual move came after over an hour of strongly critical public testimony about an embarrassing trove of recently disclosed emails that show heavy involvement of the Governor’s Office, the South Jersey Gas Company lawyers, and the Executive Director and legal counsel to the Commission during the course of the controversial pipeline review process.

The emails were released recently as a result of an Open Public Records Act (OPRA) lawsuit filed against the Commission by the Pinelands Preservation Alliance – see this to read over 100 emails – many involving the Gov.’s Office were heavily redacted.

According to the Philadelphia Inquirer, today’s meeting agenda was requested by Chairman Lohbauer as a result of disclosures in the emails. Lohbauer sought to solicit public testimony and consideration of reforms to Commission rules regarding negotiations between the Commission Executive Director and counselor.

David O’Reilly of the Inquirer wrote:

Commission Chairman Mark Lohbauer said Friday that he felt compelled to make special waivers more difficult to obtain after reading recently obtained exchanges between commission staff and representatives of South Jersey Gas in 2013. 

“There was a degree of closeness between the applicant and staff that went beyond the neutrality appropriate to a review process,” said Lohbauer, a lawyer.

The e-mail exchanges, obtained in December by the advocacy group Pinelands Preservation Alliance (PPA), indicated that South Jersey Gas was “getting a lot more input from staff than many of us realized,” Lohbauer said, and that better guidelines were in order.

Carleton Montgomery, executive director of PPA, said e-mails between the commission’s executive director, Nancy Wittenberg, lead counsel Stacey Roth and lawyers for South Jersey Gas suggest the utility’s lawyers wrote large parts of the language of the waiver, called a memorandum of agreement, that they were seeking to obtain.

The hearing today was videotaped and we will post a link to that just as soon as it is available.

Chairman Lohbauer began the discussion by calling for the creation of a special Ad Hoc Committee to make recommendations to the full Commission regarding necessary reforms to Commission rules regarding the procedures and standards for reviewing a Memoranda of Agreement (MOA).

That move was immediately opposed by Commissioner Avery (Ezekiel cried, dem dry bones ….)

The reforms were supported by Commissioner Jackson who, referring to current MOA rules and the SJG debacle, said:

If you start things with a crooked foundation, the outcome will be slanted.

The Attorney General’s Office then interrupted Jackson to warn him and fellow Commissioners about discussing any prior MOA issues, given the currently pending SJG litigation. The AG’s Office attempted to use the SJG litigation as a legal excuse to block the Commissioners from discussing any of the controversial emails, which were all about the SJG project.

Commissioner Jackson proceeded on nonetheless and implored his fellow Commissioners:

Don’t keep making the same mistakes – we have to do the A, B, C’s of a MOA.

The discussion then shifted to whether reforms should be considered by a special Ad Hoc Committee or the full Commission, as recommended by Mr. (Zeke) Avery.

Echoing President Obama’s’ slogan “Look forward, not backward” in response to demands to prosecute the Bush Administration for war crimes on Iraq invasion, CIA torture, and Guantanamo, Chairman Lohbauer took the AG’s advise and made it clear that, to him, the discussion was not related to any prior applications but would be prospective in nature.

The Commissioners could not come to any agreement, so Lohbauer pledge to poll his fellow Commissioners and consider the matter at the next meeting, on February 13, 2015.

• Scathing Public testimony – calls for a Moratorium on MOA’s & Waivers pending reforms

The public was then provided an opportunity to testify.

I began the public session by calling for the Commission to enact an administrative moratorium on review of any new MOA’s or waivers until CMP rules were revised to prevent a repeat of the abuses disclosed by the emails.

I reminded the Commission that, even before the emails were released, that their was an appearance that the Commission staff had be “captured” by the applicant SJG.

I reminded them of my testimony back in July of 2013 urging that they put safeguards in place to prevent exactly the “cozy relationships”, “capture” and unprofessional abuses disslosed by the emails.

Now, given the emails that confirm all the public’s suspicions, the public had lost trust and confidence in Executive Director Wittenberg and Counselor Roth, given their behavior revealed in the emails, and that the integrity of the Commission was on the line in how they responded to this challenge.

Regulatory reforms should address, at a minimum: 1) Commission and staff and public review procedures, 2) the roles and responsibilities of the Executive Director and Counselor, 3) inter-governmental coordination, particularly with state agencies like BPU and DEP; and 4) most importantly, technical standards, criteria, and scientifically based  analytical methods for determining an “equivalent level of protection”, which is the current vague standard under Commission’s MOA rules, as well as Waiver standards and conditions like “compelling public need” and “no feasible alternatives”.

I was very specific in identifying exactly some of the abuses revealed by the emails, including:

1) the drafting and timing of the MOA, which was apparently written by SJG and transmitted to Ms. Roth on March 4, 2013, yet Ms. Roth stated months later, in the July 27, 2013 meeting and quoted in the Asbury Park Press that she was not prepared to discuss a MOA;

2) the role of the SJG attorney with respect to access to and undue influence on ED Wittenberg and Counselor Roth;

3) the fact that the the lawyer for SJG participated in the drafting and review of the Executive Director’s Report to the Commission, recommending approval of the MOA;

4) the fact that the lawyer for SJG participated in the drafting of response to public comments;

5) the extensive and inappropriate involvement of the Governor’s Office;

6) The involvement of the Governor’s Office in the recusal of Commissioner Lloyd, including false and conflicting statements made by Wittenberg (“we never spoke to Gov.’s Office”) and Roth (claims that Lloyd recusal was reviewed and ordered by Ethics Commission and that there was no involvement of the Gov.’s office).

Several other citizens testified.

Georgina Shanley said that what was revealed in the emails was a “betrayal” of the public and that Wittenberg and Roth should resign.

Doug O’Malley of Environment NJ was highly critical of Wittenberg and Roth, and said that the emails called into question the independence and integrity of the Pinelands Commission.

Fred Akers said the big problem was a change in MOA agreements to allow cash payments to the Commission, which create the appearance of a conflict of interest.

So, one key question as this moves forward is:

What is the Governor’s Office hiding behind the redactions and Privilege claims?

Why would the Commission not want to strengthen their rules to prevent future abuse that was revealed by the emails?

We’ll keep you posted and hope that some intrepid journalist out there can connect the dots – it seems like we are very close to echoing: “time for some ethics problems on the Pinelands Commission”

[Update: 1/31/15 – I want to expand on a few points:

1. CMP rules require that a MOA be with a public agency for a public purpose. The MOA was between the Commission and BPU, so what was SJG involved at all? All the SJG involvement demonstrates the illegal fraud of using BPU as MOA to cover for a private project.

2. BL England (Rockland Capital) was heavily involved as well. Why? The attorney and lobbyist for Rockland Capital was former Whitman lawyer John Valeri, now with the Woff & Samson law firm of Bridge-gate fame.

3. As I was beginning to wrap up my comments, Commissioner Ashum, who participated in the meeting via phone, started shouting several times “Time! Time!”

I responded that Ms. Ashmum should be the most concerned about this scandal, as she has served the Commission many years and the current Gov. and Executive Director and dragging her baby through the mud and she should be the first demanding that it not happen again.  ~~~ end update]