DiVincenzo was charged with misusing more than $16,000 in campaign funds and failing to disclose nearly $72,000 in campaign spending over a two-year period, including more than $9,000 for airfare, hotel stays and food for two trips to Puerto Rico during the Super Bowl weekends in 2011 and 2012.
TRENTON--A high-profile case charging Essex County Executive Joseph DiVincenzo with misusing thousands in campaign funds is facing likely dismissal because the lone Democrat on the state's short-staffed campaign finance watchdog agency took himself out of the matter.
An administrative law judge is recommending the case be dropped because he said the state Election Law Enforcement Commission, which by law must include two Democrats and two Republicans, cannot take action based on the vote of a single party.
"I conclude that ELEC did not have the required quorum to initiate the complaint," said Judge Jeff Masin on Wednesday, agreeing with attorneys for DiVincenzo who argued the commission was legally precluded from moving on the case. "As such, the case is void...and must be dismissed," he concluded.
BEHIND THE DECISION: The legal argument
While Masin's opinion--which was first reported by Politico--is not binding on ELEC, a decision to proceed would likely wind up in court. The commission has at least 45 days to decide if it wants to accept the recommendation. If its members take no action, the recommendation becomes the final decision. ELEC officials declined comment.
A spokesman for DiVincenzo called Masin's decision the right one.
"We hope that the commission accepts his recommendation," said Anthony Puglisi. "Ensuring that the commission functions with a legal quorum and in a bipartisan manner is important to all candidates for public office. We hope this decision will set the stage to bring closure to this matter."
DiVincenzo was originally charged by ELEC 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, including more than $9,000 for airfare, hotel stays and food for two trips to Puerto Rico during the Super Bowl weekends in 2011 and 2012, which the county executive described as a political retreat for Essex County Democrats.
According to the complaint, DiVincenzo--who was facing potentially big fines--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 gym membership, at $97.25 a month; and more than $100 in parking tickets in Nutley, then his hometown.
ELEC had taken action after a political foe, Marilynn English, filed a complaint in 2011 about DiVincenzo's lack of disclosure. The Star-Ledger, which examined DiVincenzo's campaign reports, reported in 2012 that the county executive also racked up about $250,000 in charges to his personal credit cards over a 10-year period, and then paid the bill with his campaign account without disclosing exactly what the money was spent on.
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The proposed dropping of the charges against DiVincenzo--an powerful ally of Republican Gov. Chris Christie--owes much to a long-standing vacancy on the election commission that Christie has left open since the November 2011 death of Lawrence Weiss, a Democrat and retired Superior Court judge.
When the case was first brought in 2013, the commission included Republicans Ronald DeFilippis and Amos Saunders, and Democrat Walter Timpone--a former assistant U.S. attorney who once headed the Newark office's corruption prosecution division. Timpone, however, recused himself from the case without explanation. He has not commented on the matter.
Angelo Genova, an attorney for DiVincenzo, maintained that Timpone's recusal left ELEC without jurisdiction to take action on the complaint. ELEC argued that all it needed to move on the matter was a majority of the membership, noting it could invoke the rule of "stern necessity" to allow it to act without a member of the opposite party.
Masin 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," the judge pointed out, who said any vote unrepresentative of the required bi-partisan commission would promote "the very appearance of partisanship in the enforcement process that the Legislature was attempting to eliminate."
Christie recently nominated a new member to the ELEC, but selected another Republican to succeed Saunders, who died last month. The commission still has only one Democrat.
Ted Sherman may be reached at tsherman@njadvancemedia.com. Follow him on Twitter @TedShermanSL. Find NJ.com on Facebook.