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Judge orders release of Guadagno pension-probe records

By   /   February 6, 2014  /   No Comments

OPENING IT UP: Administrative Law Judge Linda M. Kassekert ordered the state Treasury to release 25 of 26 documents involving Lt. Gov. Kim Guadagno, right, that New Jersey Gov. Chris Christie’s administration has fought hard to keep secret

By Mark Lagerkvist | New Jersey Watchdog

A New Jersey Watchdog reporter has won the latest round in a three-year battle for public records surrounding the state’s hush-hush investigation of an alleged pension scheme implicating Lt. Gov. Kim Guadagno.

Administrative Law Judge Linda M. Kassekert ordered the state Treasury to release 25 of 26 documents the Christie administration has fought hard to keep secret. The parties have until Tuesday to appeal the decision.

Guadagno would become acting governor of New Jersey if an embattled Gov. Chris Christie does not serve his full term.

The controversy focuses on an alleged pension scheme and false statements by Guadagno when she was Monmouth County sheriff.

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.

Kassekert rejected Treasury’s blanket argument that the documents should be exempt from disclosure as personnel or pension records.

“No part of the twenty-six documents contains the kind of information about Michael Donovan that would make it part of his personnel or pension record,” she wrote in her 19-page opinion.

The judge is allowing Treasury to completely withhold one document as being “deliberative.”  In that internal memo, a state auditor recommends potential courses of action, according to Kassekert.

‘Doublegate’ begins

The “Doublegate” scandal began in 2008, the year before Guadagno was elected lieutenant governor

As Monmouth County sheriff, Guadagno hired Donovan, a retired investigator for the county prosecutor, as her “chief of law enforcement division.”

Guadagno announced the appointment in a memo to her staff. The sheriff’s official website subsequently identified Donovan as “sheriff’s officer chief,” supervising 115 subordinate officers and 30 civilian employees.

But Donovan faced a legal issue. As a sheriff’s officer chief — a position covered by the pension system — Donovan should have been required to stop receiving retirement checks and resume making contributions to the Police and Firemen’s Retirement System.

To enable her chief officer to double-dip, Guadagno made false and conflicting statements about Donovan’s job title.

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.

While sheriff’s chief, Donovan pocketed $227,000 in checks from PFRS. Since he did not re-enroll in PFRS, he avoided $18,000 in contributions. If the state had decided Donovan violated pension law, he could have been forced to repay $245,000.

The stakes were 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 public-records battle

The records battle began in March 2011 with a request to Treasury under the Open Public Records Act. When Treasury officials refused to release the documents, the reporter filed a complaint with the Government Records Council.

In a July 2012 decision, GRC ordered Treasury to produce the records for an in-camera review.

Treasury asked the Appellate Division of Superior Court to intervene. The motion by the attorney general on behalf of Treasury was opposed in briefs on behalf of the reporter and GRC.

An appellate panel upheld GRC’s order in November 2012.  But in a sudden reversal the next month, GRC decided the dispute was too hot to handle.

After a five-month delay, GRC sent the case in May to the Office of Administrative Law, which assigned Kassekert to conduct the in-camera inspection. Treasury delivered the documents for review in September 2013.

The Criminal Investigation

In Mercer County Superior Court, meanwhile, the New Jersey Watchdog reporter is suing the attorney general’s Division of Criminal Justice for the records of its Guadagno-Donovan pension probe.

The PFRS Board of Trustees voted in May 2011 to call for a criminal investigation of Donovan — plus parallel cases involving John Dough of Essex County and Harold Gibson of Union County.

The case was assigned to DCJ, despite a major conflict of interest.

Guadagno is DCJ’s former deputy director.  She is Christie’s second-in-command who sits on the governor’s cabinet along with the attorney general, who is in charge of DCJ.

Christie has never publicly addressed the question of whether he should have appointed an independent prosecutor or investigator to handle the case. Spokesmen for Christie, Guadagno and three attorneys general who held the post since 2011 have declined comment about the probe.

After DCJ denied an OPRA request for records, the reporter filed the lawsuit.

Under order by Judge Mary C. Jacobson, DCJ has submitted a “Vaughn index” describing 771 pages of documents related to the probe.

Lawyers for the state and the reporter are currently arguing over which records, if any, must be publicly released.

DISCLOSURE: Investigative reporter Mark Lagerkvist is the plaintiff in the public records cases against Treasury (OAL GRC 6985-13 & GRC 2011-110) and Division of Criminal Justice (Mercer County Superior Court, MER-L-464-13).

Contact Mark Lagerkvist at mlagerkvist@watchdog.org

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