Protecting Katie Brennan: Legal experts and insiders on N.J.’s ability to enact policies around campaigns

By Anjalee Khemlani
Trenton | Dec 6, 2018 at 11:57 am

Katie Brennan’s testimony Tuesday in Trenton regarding how a sexual assault allegation during Gov. Phil Murphy’s campaign was handled raised a number of questions about how the state should classify volunteers on a political campaign — and its ability to make regulations involving those volunteers. 

It also raised several questions, which the governor has encouraged, about how the state handles sexual assault cases in general. 

ROI-NJ reached out to a number of lawyers and state officials after the testimony Tuesday afternoon.

They all requested anonymity because they were not authorized to speak publicly about the case or because they did not want to appear to be weighing in on the case, which is still under review by the Middlesex County Prosecutor’s Office. 

The legal and policy minds are curious about the Legislature’s aim with its hearings. It appears to be exploring ideas of how to protect volunteers during a campaign, much as a business would have policies to protect its employees. 

People who feel they have been assaulted already have the ability to go directly to law enforcement. But Brennan’s allegation against then-campaign staffer Al Alvarez was not pursued by the Hudson County Prosecutor’s Office, and she told legislators her experience with Jersey City police wasn’t pleasant. 

Here are some ideas the sources discussed, based on comments from the testimony or from legislators during the hearing. 

Laws and procedures

If the Legislature does pursue new rules and procedures, who enforces them as they pertain to campaigns? One source said ELEC might make sense, but the commission couldn’t handle it: “The Election Law Enforcement Commission isn’t really like an HR police,” the person said.

Current laws do exist in each state agency on handling reporting of allegations, but how that could affect the hiring of an individual remains unclear after Tuesday’s testimony. What did come to light is that each agency has different policies and procedures in place to handle workplace issues, a source said. The question remains whether or not the Legislature creates an overarching policy for all to adopt. 

Campaign volunteers

It’s unclear if the state can create any new rules that would specifically address campaign volunteers. Some said it’s similar to trying to create rules that govern volunteers at any nonprofit.  Also, who counts as a volunteer on a campaign would have to be defined.

“If you walk into a campaign office and you pick up a lawn sign and put it in your lawn, are you a volunteer?” one source said. The Murphy administration already has agreed there were problems in the process, referring to Attorney General Gurbir Grewal’s recently released guidelines.

The topic of who is a volunteer is relevant because the alleged incident took place at a time when Brennan was a campaign volunteer while Alvarez was a campaign staffer. At no point in time, during the campaign or during the transition, was Brennan a state employee, sources said. The legislators tried to establish at what point Brennan felt she was applying to be a state employee, which is when existing rules and procedures would apply to her.

Campaigns as businesses 

Campaigns already do run similarly to businesses, some sources said, when asked if they need to adopt more of a business structure. “They provide health benefits, they have to have insurance. The campaign, in essence, is a corporation.” The transition team, for staffers, had a workplace training program that took place over two days. Because Brennan was not a paid staffer, however, she may not have been part of it, one source said. “There are also often staffers paid for by third parties,” one source said. Others said it’s an interesting idea to explore more.  

Another source pointed out that, even if a campaign did try to operate as a business to handle the situation with a clearer chain of command and process, it might have been challenged to handle a case like Brennan’s. “(The alleged assault) didn’t happen at work. It was a social event, it was not a sanctioned campaign event. And it occurred after a social event. So, even if you asked an employment lawyer, if she was an employee and not a volunteer, would she be covered by those laws? I don’t think so.” 

Ban the box

Did the “ban the box” debate play a role in the incoming administration’s decision not to take the allegations into account when hiring Alvarez for a post-campaign role? One source pointed out that the allegations were brought to the Murphy administration around the time that the Legislature was deliberating on a bill to ban a criminal record from being considered as part of a job application. A top official in the Murphy campaign said that, even if a discussion about it took place, it didn’t apply. “He’s never been convicted and never been charged. There were no charges pending against him. They ran a background check on him twice after the campaign and he came back clean,” one source said.

Murphy himself has asked for the rules to be analyzed and any gaps found. That could include answering the question, “If the allegations are serious enough, should it play a role in a hiring discussion?

Background checks

What was the background check that Alvarez underwent in order to make in onto the transition team as a paid staffer? “Everything that a business would use. Anything that is publicly available. Including social media,” one source said. 

The next Brennan hearing is set for Dec. 18. It is expected to include multiple witnesses, but no names have been announced yet. 

Anjalee Khemlani | akhemlani@roi-nj.com | AnjKhem