New Jersey candidates can be charged with accepting a bribe even if they lose the election, the state Supreme Court ruled in a decision that means a former state assemblyman will have to stand trial for allegedly taking cash for the promise to give someone a city job, had he won the Bayonne mayor’s spot.
Jason O’Donnell, 51, who served five years in the state Assembly, argued that since he did not win the seat – and thus could not provide the promised job — he could not be charged with bribery. The justices unanimously disagreed, writing in a decision released Monday that what O’Donnell is accused of is clearly illegal.
“The law plainly states it is no defense that someone in defendant’s position was not yet qualified to act,” wrote Supreme Court Chief Justice Stuart Rabner for the court. “And ordinary people can understand that New Jersey’s bribery statute does not allow them to accept a bag of cash in exchange for promising a future appointment to a city post.”
The justices sent O’Donnell’s case back for trial. If convicted of the second-degree offense, O’Donnell faces a maximum sentence of five to 10 years in state prison and a fine of up to $150,000.
O’Donnell’s case
O’Donnell, a former Democratic municipal chairman in Bayonne and director of the city’s public safety department, was tapped to fill a vacancy in the Assembly in 2010, won two full terms and then left the Assembly in January 2016. He was running for mayor of Bayonne in 2018 when he allegedly accepted a white Baskin Robbins bag with pink lettering filled with $10,000 in cash from a cooperating witness. The work of the witness assisting prosecutors led to charges against four other elected officials and candidates in Hudson and Morris counties.
According to the decision, O’Donnell met the witness in February 2018 and asked for the $10,000, saying he needed street money, typically used for get-out-the-vote efforts, and that the witness would ‘be his tax guy.’ The two met again two months later and O’Donnell said he would like the money the week before the election. On May 3, 2018, investigators gave the witness the money and he gave it to O’Donnell in the paper bag. On audio recordings, the witness is heard saying, “I just want to be your tax guy,” and O’Donnell responds, “Yeah done,” and is seen on video holding the Baskin Robbins bag.
A Superior Court judge dismissed the indictment at the request of O’Donnell’s lawyers, finding the bribery statute did not apply because as merely a candidate he had “no real, actual or apparent authority to perform any ‘official duties’” at the time the money was given. The judge relied in part on a 2012 federal ruling involving another former Hudson County Democrat in which found the bribery statute did not apply to candidates who do not get elected.
‘ … Ordinary people can understand that New Jersey’s bribery statute does not allow them to accept a bag of cash in exchange for promising a future appointment to a city post.’ — Supreme Court Chief Justice Stuart Rabner
The state Supreme Court ruled that federal interpretation was incorrect. In reinstating the indictment, it wrote, “The law instead applies to any ‘person’ who solicits or accepts a bribe. Had the Legislature intended to exclude candidates from the statute’s reach, it would have said so.”
It further found convincing the attorney general’s argument in support of the indictment, writing, “The text of the bribery statute does not require a bribe recipient to be able to act on a promise. As the State argues, imagine a candidate or an official who accepts a bribe in exchange for a promise to vote for a piece of legislation. If the bill is never posted for a vote, the person’s conduct — accepting a payment as consideration for the performance of official duties in the future — is still an offense.”
After the indictment was initially dismissed, lawmakers approved a bill, A-2472, last year to make it clear that candidates were also subject to the bribery statute. It quickly passed both houses of the Legislature without opposition, but Gov. Phil Murphy conditionally vetoed it in May 2022, writing he thought the measure as written would enable people offering bribes to “find loopholes to evade criminal liability.” The Assembly agreed to Murphy’s amendments, but the Senate never acted and so the measure remains in limbo. Regardless, the court’s ruling now makes clear that candidates can be charged with bribery.
