DiVincenzo campaign spending case headed to court

By Ted Sherman | NJ Advance Media for NJ.com
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on December 10, 2015

Essex County Executive Joseph DiVincenzo, who is seeking dismissal of charges by the Election Law Enforcement Commission that he misused thousands in campaign funds.

 

RENTON—The state Election Law Enforcement Commission is heading to court next week in an effort to keep alive its two-year-old case against Essex County Executive Joseph DiVincenzo, accused of spending thousands of dollars in campaign funds on personal expenses, including gym membership fees and tickets to sporting events.

In an order to show cause, ELEC is seeking to bar dismissal of its complaint against the Democratic power broker, following a ruling earlier this year by an administrative law judge who said the commission had no authority to act because no Democrats had participated in the enforcement proceeding.

A hearing on a request to keep the matter open is scheduled before state Superior Court Judge Mary Jacobson on December 15 in Trenton.

At issue for ELEC are the findings of the hearing judge who agreed with attorneys for DiVincenzo that the commission could not legally go forward with the long-delayed matter because it did not have a bipartisan quorum in the matter.

By law, the four-member election commission cannot have any more than two members of the same party—traditionally two Democrats and two Republicans. However, the seat once held by Lawrence Weiss, a Democrat and retired Superior Court judge, remains unfilled by Gov. Chris Christie more than four years after the death of Weiss. At the same time, the remaining Democrat on the commission, Walter Timpone, recused himself in the case against DiVincenzo for still unknown reasons.

With Timpone stepping aside, and the governor's inaction on a successor to Weiss, the vote to bring charges against DiVincenzo was left to the two Republicans on the commission.

But lawyers for DiVincenzo challenged the legality of the complaint and Administrative Law Judge Jeff Masin in September agreed, issuing a finding that the case should be dismissed. He said the Legislature specifically precluded the ability of a single-party majority from making a determination in any campaign enforcement matter in New Jersey.

"It is important to note that in such a directly political setting as this agency inevitably works, a decision to charge a violation of the campaign finance laws is likely to quickly become a matter of public interest and attention and to be used as political fodder in campaigns and in other political settings," said the hearing officer, who added that any vote unrepresentative of the required bipartisan commission would promote "the very appearance of partisanship in the enforcement process that the Legislature was attempting to eliminate."

The election commission had 45 days to decide if it would accept Masin's findings, with the ruling becoming the final decision if ELEC took no action. The commission requested and received a 45-day extension to further consider the matter. But with that 45-day period expiring, the watchdog agency is now in court looking to keep the matter alive with a further extension.

In briefs already submitted before the Office of Administrative Law, an attorney for the commission said the hearing officer got it all wrong. Amanda Haines said the statutes governing ELEC are silent on the specifics of a quorum in the section that empowers it to issue complaints.

As a result of the vacancy left by the death of Weiss, she acknowledged ELEC had three members at the time the complaint was authorized. However, she said that empty seat redefined a quorum as a majority of those remaining three members.

"One member recused himself and the remaining two members voted to issue the complaint," she said. "Therefore, the 2-0 vote to issue the complaint against (DiVincenzo) was valid and the complaint should not be dismissed."

An ELEC spokesman declined comment because the matter is in litigation.

Attorney Angelo Genova, who represents DiVincenzo, said in a reply brief filed in the case that proceeding without a bipartisan quorum "contravenes the commission's enabling legislation."

Genova reiterated his position that ELEC lacked the legal power to issue the complaint and lacked to legal power to decide the case because the short-handed commission did not have the statutorily required number of commissioners needed to make a determination.

Campaigning in Puerto Rico

DiVincenzo, 63, was first charged by the election commission in October 2013 with misusing more than $16,000 in campaign funds and failing to disclose nearly $72,000 in campaign spending over a two-year period.

Those expenses included more than $9,000 for airfare, as well as hotel stays and food for two trips to Puerto Rico during the Super Bowl weekends in 2011 and 2012. The county executive described the event as a political retreat for Essex County Democrats.

According to the complaint, DiVincenzo also used his campaign account to pay for tickets to the U.S. Open tennis tournament, Devils games and a Houston Astros game; a $676.94 tuxedo at Joseph A. Bank; a $97.25-a-month gym membership; and more than $100 in parking tickets in Nutley, his hometown at the time.

ELEC moved against DiVincenzo after a political foe, Marilynn English, filed a complaint about the Essex County Executive's lack of disclosure on campaign finance reports. The Star-Ledger, which examined those campaign reports, reported in 2012 that DiVincenzo also accumulated about $250,000 in charges to his personal credit cards over a 10-year period, and paid the bills with his campaign account without disclosing what the money was spent on.

Meanwhile, ELEC is now down to just two sitting members. At the time the case against DiVincenzo was opened, the commission's membership included Republicans Ronald DeFilippis and Amos Saunders, who stepped down earlier this year and died in August.

The governor in May nominated Republican lawyer Eric H. Jaso to replace Saunders, but the Democratically controlled Senate Judiciary Committee has held up the nomination, leaving just DeFilippis and Timpone to vote on all election enforcement cases in New Jersey.

A spokesman for Christie, responding to questions about the governor's continuing inaction on a Democratic nominee to replace Weiss, said "the Judiciary Committee has failed for months to act on an ELEC nomination already before them. Nothing is gained by adding to the list of things they refuse to address."

DiVincenzo, in his most recent campaign finance filing, reported spending $2,739.21 for meals associated with campaign meetings just in the month of July. Nearly half of that was spent at McLoone's Boathouse, the restaurant Essex County helped finance in the South Mountain Recreation Complex in West Orange. Another $524.85 was spent at Roberto's, a well-known Italian restaurant in the Belmont section of the Bronx, N.Y., where the menu lists Polla alla Paesana for $23 and the Costata di Vitello alla Griglia at $39. That, too, was called a campaign meeting.

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