JOYCE PINTO v. LOCAL FINANCE BOARD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0958-04T10958-04T1

JOYCE PINTO,

Petitioner-Appellant,

v.

LOCAL FINANCE BOARD,

Respondent-Respondent.

_________________________________________________

 

Submitted September 6, 2005 - Decided:

Before Judges Payne and Graves.

On appeal from the Local Finance Board.

Capizola, Fineman & Lapham, attorneys for

petitioner (Darrell Fineman and Holly D.

Bitters on the brief).

Peter C. Harvey, Attorney General, attorney

for respondent (Michael J. Haas, Assistant

Attorney General, of counsel and Daniel

P. Reynolds, Senior Deputy Attorney General,

on the brief).

PER CURIAM

In 2000, petitioner Joyce Pinto, the Municipal Clerk of the Borough of Runnemede, commenced living in a romantic relationship with the Borough's former mayor, John J. Yarabinee. On September 3 and 17, 2002, she insisted on being present, despite a unanimous vote directing her to leave, during closed sessions of the Runnemede Borough Council at which council members discussed with the Borough attorney potential discipline of Yarabinee's two sons, Borough employees Michael and Jason Yarabinee. It was stated that Michael had failed to show up for work since August 14, and that no one had heard from him. Jason, who had been under medical care since January and had been placed on medical leave by his physician as of June 10, "apparently ha[d] a problem being with or getting along with people." Both resigned their employment during the Fall of 2002.

As the result of Pinto's conduct, on September 19, 2002, an ethics complaint was filed by the Borough attorney with the Local Finance Board, the entity that enforces the Local Government Ethics Law, N.J.S.A. 40A:9-22.1 to -22.25. Following an investigation, the Board determined that Pinto's refusal to recuse herself from the two meetings constituted a violation of N.J.S.A. 40A:9-22.5(c) and (d). A notice of violation was issued, and Pinto was assessed a $100 fine.

Pinto requested an administrative hearing. Consequently the matter was referred to the Office of Administrative Law and assigned to an Administrative Law Judge (ALJ). When counsel agreed that no facts were in dispute, the record was closed, and the parties filed cross-motions for summary decision.

In his decision, the ALJ concluded that, as the result of her relationship with John Yarabinee, Pinto had an indirect personal interest in the Borough Counsel's discussion of potential disciplinary actions against Yarabinee's sons. However, the ALJ also found that:

there was nothing to tempt the petitioner to depart from her duties as Borough Clerk to record the meeting and prepare the minutes. Both sides concede the minutes were prepared properly and were approved by the Board. Additionally, petitioner's responsibilities did not involve her making any judgments or objectivity pursuant to the statute.

Since Pinto's "function at the closed session was to record the meeting and prepare minutes that must be approved by the Board and she did not participate in discussions or vote concerning the former Mayor's sons," the ALJ concluded that there was no potential for conflict and no violation of either N.J.S.A. 40A:9-22.5(c) or (d).

After considering exceptions filed by the parties, on September 8, 2004, the Local Finance Board issued a final decision accepting the ALJ's conclusion that Pinto had an indirect personal interest in the personnel matters addressed by the Council in closed session. However, it rejected the ALJ's conclusion that no ethical violation had occurred. The Board stated that in finding that there was no violation of the Local Government Ethics Law, the ALJ did not address N.J.S.A. 40A:9-22.5(c), which prohibits local government officers and employees from using or attempting to use their official positions to secure unwarranted privileges or advantages for themselves or others.

By remaining at the Council's closed session meetings, and refusing to leave, Pinto secured an unwarranted advantage not available to the general public. She obtained access to the confidential deliberations of the Council, and, moreover, placed herself in a position where, simply by virtue of her presence, she could have inhibited or influenced the conduct of official proceedings. Pinto's refusal to recuse herself thus constituted a violation of N.J.S.A. 40A:9-22.5(c).

The Board additionally found that Pinto had violated N.J.S.A. 40A:9-22(d), which provides:

No local government officer or employee shall act in his official capacity in any matter where he, a member of his immediate family, or a business organization in which he has an interest, has a direct or indirect financial or personal involvement that might reasonably be expected to impair his objectivity or independence of judgment.

In this regard, the Board stated:

The Board does not agree [with the ALJ] that the clerical nature of Pinto's job absolved her of the statutory obligation to recuse herself from matters in which she had a personal involvement. To the contrary, Pinto's relationship to the father of the municipal employees who were the subject of the Council's discussions, and, quite possibly, subject to disciplinary action by the Council, might well have impaired her ability to perform her duties - ministerial or not - in a dispassionate, thorough and objective manner. That relationship might also have created a temptation to disclose confidential matters discussed in closed session, and might have influenced the Council's deliberations which took place in Pinto's presence. The Board therefore concludes that Pinto had a prohibitive involvement in the matter, and that her refusal to step down constituted a violation of N.J.S.A. 40A:9-22(d).

In response to the ALJ's finding of no evidence that Pinto had prepared the Council's minutes incorrectly or participated in any respect in its deliberative or decision-making process, the Board found:

If nothing else, Pinto's presence in an official capacity, at closed sessions in which she had a prohibitive involvement, created the perception of impropriety in contravention of the ethics law. As the ALJ correctly noted . . . "Even the perception of unethical conduct can seriously damage the public trust and confidence. N.J.S.A. 40A:9-22.2. An actual conflict of interest is not the decisive factor, nor is 'whether the public servant succumbs to the temptation,' but rather whether there is a potential for conflict." (citing Wyzykowski v. Rizas, 132 N.J. 509, 524 (1993)).

The creation of this potential for conflict, the Board found, constituted a violation of both N.J.S.A. 40A:9-22.5(c) and (d).

As stated previously, in addition to finding that Pinto had violated the two cited provisions of the ethics law, the Board assessed a $100 civil penalty pursuant to N.J.S.A. 40A:9-22.10.

Pinto has appealed from the Board's determination, construing Wyzykowski v. Rizas, 132 N.J. 509 (1993) to limit instances of disqualifying indirect personal interest to those in which a local government official's membership in an organization and desire to benefit that organization may affect the official's judgment. Since Pinto's personal circumstances did not fit this mold, she argues that she could not have violated N.J.S.A. 40A:9-22.5(d), and that the contrary conclusions of the ALJ and Board were erroneous.

We disagree. Although the circumstances that Pinto mentions were specifically cited by the Wyzykowski Court, id. at 525-26, we do not read that language as limiting the circumstances in which an indirect personal interest may arise, but instead find that it may occur whenever the public official "has an interest not shared in common with the other members of the public." Id. at 524. We find that Pinto's interest in the well-being of her companion, Yarabinee, arising as the result of her romantic involvement with him, constituted such an interest. Whether Pinto herself maintained a close relationship to Yarabinee's sons, we find, is irrelevant when, as here, her indirect personal interest in them has been demonstrated through evidence of the effect on Yarabinee of proposed actions affecting his children.

Pinto argues further that even if an indirect personal interest is found to exist, that interest was insufficient to impair her objectivity or independence of judgment or reasonably be expected to do so, in large measure, because as the Borough Clerk, she had no occasion to exercise independent judgment or objectivity. As a consequence, she could not have violated N.J.S.A. 40A:9-21.5(d). We reject this contention, and sustain the action of the Board substantially for the reasons expressed by it in its final decision.

Finally, Pinto argues that she could not, without a hearing, have been found to violate N.J.S.A. 40A:9-21.5(c), because evidence of specific intent was required that could not be demonstrated in a summary proceeding. In support of this position, Pinto relies on an unreported partial summary decision by an ALJ in Barow v. Local Finance Board, OAL Docket No. CFB 2433-00 (May 20, 2002). We find that the ALJ's decision in Barow, which was not appended to Pinto's brief in violation of R. 1:36-3, is not precedential, and was not followed by the Local Finance Board in its final decision of September 18, 2002, is unpersuasive. N.J.S.A. 40A:9-22.5(c) does not, by its language, require a showing of the specific state of mind of the municipal official whose conduct is under review or an evidential hearing on the issue, and such a hearing has not been demanded in reported decisions such as Wargacki v. Local Finance Board, 97 N.J.A.R.2d (CAF) 1 (1996) and Local Finance Board v. Caiazzo, 94 N.J.A.R.2d (CAF) 43 (1993). Moreover, Pinto waived her right to the hearing that she now claims is necessary when she consented to a summary proceeding in this matter.

The decision of the Local Finance Board is accordingly affirmed.

 

Copies of both opinions were supplied by the Board in its appendix.

(continued)

(continued)

2

A-0958-04T1

September 22, 2005