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Addressing legislation proposed by the Senate President to reform New Jersey's watchdog agencies at a New Jersey Senate hearing on December 1, New Jersey Attorney General Matt Platkin defended his record, and that of the State Comptroller, against pointed criticism from state senators.
The Senate President's bill calls for the transfer and reform of current oversight efforts in the interest of efficiency among three current watchdog agencies – the AG, the Office of State Comptroller, and the State Commission of Investigation (SCI), a quasi-independent investigative agency in the legislative branch led by a board of four part-time political appointees.
The hearing was a rare open display of sharp disagreements. The AG and State Comptroller both characterized the bill as targeting them for publicizing and prosecuting incidents of waste, fraud and abuse involving powerful public officials.
At the close of public comments largely opposed to the proposed changes, the committee chair contended the legislation was proposed because of legislators' concerns about AG Platkin's management of his office.
New Jersey's AG exercises a broad scope of authority, being responsible for state criminal prosecutions (including the power to supersede and take charge of county prosecutor offices), civil representation of most state agencies, as well as control of the State Police, the Division of Consumer Affairs, the Division of Civil Rights, and dozens of boards that regulate professions and industries.
The bill would move investigative powers from the State Comptroller to the SCI—and would provide the SCI more explicit authority to investigate the AG and county prosecutors, and grant the SCI wiretap authority. The bill would also allow legislative leaders to select the SCI chair, currently appointed by the Governor, and increase the salaries of SCI commissioners.
The AG noted significant separation of powers concerns raised by granting the SCI (a legislative commission) authority over criminal prosecutions and to conduct wiretaps. New Jersey's Constitution provides that "[n]o person or persons belonging to or constituting one branch shall exercise any of the powers properly belonging to either of the others, except as expressly provided in this Constitution."
New Jersey's Constitution, adopted in 1947, established a strong governor who appoints virtually all statewide officials, including the AG, all 21 county prosecutors, and all state court judges. New Jersey is among only 7 states that do not elect their AG: Alaska, Hawaii, New Hampshire, New Jersey, and Wyoming (Governor); Tennessee (Supreme Court), and Maine (Legislature). New Jersey's Constitution also grants the AG and county prosecutors a broad degree of independence, insulating the AG from removal except by way of impeachment.
Also unlike many other states, county prosecutors and the State Comptroller are not elected. They too are appointed by the Governor with Senate advice and consent. However, the Senate has declined to vote on the Governor's nominee for State Comptroller, who nevertheless has aggressively pursued waste, fraud and abuse in state and local government despite his acting status.
Introduced on Thanksgiving Eve, the proposed legislation was the subject of a Senate committee hearing the following Monday. The move during New Jersey's lame duck legislative session sparked criticism from numerous governance groups who packed the hearing room with opponents of the bill.
The bill was approved unanimously, though Democrat John McKeon and Republican Michael Testa expressed reservations they hope to address before a full Senate vote.
Whether the proposed reform will pass before the end of the lame duck session on January 20 remains to be seen. No Assembly analogue has yet been introduced in the lame duck session following New Jersey's off-year election. Democratic Governor-elect Mikie Sherrill and outgoing Governor Phil Murphy have taken no position on the proposal to date. We will report on developments and implications as matters progress.
New Jersey's unique system of law enforcement, regulatory oversight and watchdog agencies can present challenges for business and individuals who do business with or in the state. Duane Morris attorneys have served in these offices and have decades of experience advising our clients with matters before each of these offices.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.
