No More Secret Deals Between Whistleblowers and Government

John Reitmeyer | March 29, 2017 | Politics
The Christie administration spent millions of dollars and kept key documents confidential in the Barlyn whistleblower case. Lawmakers want to end such deals

Whistleblower: Former Hunterdon County prosecutor Bennett Barlyn
Several months after Gov. Chris Christie’s administration paid $1.5 million to settle a high-profile whistleblower case — keeping several key documents related to alleged misconduct confidential — state lawmakers are trying to make sure similar legal settlements will be subject to full transparency in the future.

Earlier this month, the Assembly voted overwhelmingly in favor of legislation that would prohibit public employees who file whistleblower suits in New Jersey from entering into confidential agreements to settle the claims made against their government employers.

The vote follows the Christie administration’s decision last year to settle a long-simmering civil case involving Ben Barlyn, a former Hunterdon County assistant prosecutor who sued the state in 2012, claiming he was wrongfully fired after he had questioned the Christie administration’s quashing of indictments filed two years earlier against several GOP allies of the administration.

The bill only applies to future settlements, but its prime sponsor, Assemblyman John McKeon (D-Essex), has also asked state Attorney General Christopher Porrino to voluntarily release key confidential documents related to the Barlyn case. McKeon noted in a letter sent to Porrino earlier this week that in addition to the $1.5 million paid to Barlyn, the state also spent nearly $4 million on outside lawyers that were hired by the Christie administration.

Case cost NJ taxpayers $5.5M

“In total, New Jersey taxpayers spent nearly $5.5 million to defend against the suit… and yet more than five years after Mr. Barlyn filed his whistleblower claim, the public still has no real understanding of whether public corruption led to the dismissal of the indictment,” the letter said.

During a recent legislative hearing, McKeon compared the Barlyn case to the George Washington Bridge lane-closure scandal known as Bridgegate, suggesting Barlyn’s allegations of corruption were more serious than Bridgegate, which has received national attention. (Bridgegate involved three former Christie allies who plotted to close off local access lanes at the notoriously busy bridge in Fort Lee to punish the borough’s mayor for not endorsing Christie’s 2013 reelection campaign. Two of those former allies, Bridget Kelly and Bill Baroni, are due to be sentenced in federal court today.)

“I said that Bridgegate was child’s play compared to this and I just wasn’t offering hyperbole,” McKeon said. “This is outrageous.”

A spokesman for Porrino’s office confirmed yesterday that the lawmaker’s written request had been received, but declined additional comment. Yet even if Porrino — a former chief counsel to Christie who was picked by the governor last year to serve as state attorney general — declines to release the documents, they could still be made public by early next year. New Jersey voters will elect a new governor in November, and that governor may take a different view than the Christie administration when it comes to shielding records related to the Barlyn case. The documents in question include internal emails and memos.

The roots of the case date back to the earliest days of the Christie administration, and the details echo some of the same issues that were raised during the Bridgegate scandal.

Withdrawal of indictments

Barlyn’s involvement stems from his questioning in 2010 of the withdrawal of high-profile indictments by then Attorney General Paula Dow in a criminal case involving three Republican law enforcement officials from Hunterdon County — Sheriff Deborah Trout, Undersheriff Michael Russo, and former sheriff’s investigator John Falat Jr. All three had been indicted by a jury in May of 2010 on 43 counts of official misconduct, including failure to conduct proper background checks, forcing employees to sign loyalty oaths, and making a false law enforcement badge for a prominent donor to Christie’s 2009 campaign for governor.

Barlyn, along with fellow assistant prosecutors Charles Ouslander and William McGovern, had presided over the investigation. But Dow, who is now a Superior Court judge in Burlington County, convinced a judge to dismiss the indictments, citing “legal and factual deficiencies.”

Barlyn was suspended and later fired after questioning Dow’s decision as concerns grew that it might have been motivated by politics, including Trout’s connections to Lt. Gov. Kim Guadagno, a former Monmouth County Sheriff whose campaign Trout supported in 2009. Guadagno is now herself a candidate for governor, and one of her campaign proposals calls for New Jersey’s attorney general position to be turned into an elected office instead of a gubernatorial appointment.

While testifying before lawmakers earlier this month during an Assembly Judiciary Committee hearing, Barlyn said the settlement agreement was struck with the Christie administration after his lawyer filed a lengthy motion seeking the release of a key “privilege log” related to previously undisclosed material that was at the heart of his case.

“I have to be very, very delicate here,” Barlyn said, citing the terms of the legal settlement. “I can’t get into the specifics, but you can imagine something in that privilege log must have been of very great concern to the attorney general and to the administration.”

“Basically, they would have had to turn over everything,” Barlyn went on to say. “I think it’s highly probable that that motion was an influence in the decision of the administration to settle the case.”

Christie administration admitted no wrongdoing

The Assembly bill would prevent public entities and public employees from entering into confidential settlements of claims or actions where the employee, like in the Barlyn case, asserts the protections of the state’s Conscientious Employee Protection Act — which “prohibits all public and private employers from retaliating against employees who disclose, object to, or refuse to participate in certain actions that the employees reasonably believe are either illegal or in violation of public policy.”

The legislation would only allow information related to national security to be kept confidential.

Assemblyman Michael Patrick Carroll (R-Morris) was among the Republicans to vote in favor the measure, both in committee and when it came up for a vote before the full Assembly on March 23.

“As far as I’m concerned, these confidentiality agreements, when they involve any kind of governmental business, are contrary to the very nature of open government,” Carroll said. “Whether it’s (Barlyn’s) case or somebody else’s, we shouldn’t be keeping secrets.”

The Christie administration admitted no wrongdoing and has characterized the decision to settle the case as being a cheaper alternative than going to trial. But concerns have also been raised about the cost of the state’s defense, including legal bills submitted by outside lawyers from Gibbons PC totaling $3.85 million. The politically connected firm also performed legal work for Christie’s reelection campaign in 2013, according to state campaign-finance records.