JESSE ROSENBLUM v. V. BOROUGH OF CLOSTER BOARD OF ETHICS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1216-05T11856-05T1

JESSE ROSENBLUM,

Petitioner-Appellant,

V.

BOROUGH OF CLOSTER BOARD OF ETHICS,

Respondent-Respondent.

_____________________________

 

Submitted October 30, 2006 - Decided November 20, 2006

Before Judges Lintner and S.L. Reisner.

On appeal from a Final Decision of the Local Finance Board, Department of Community Affairs, Docket No. 04-010.

Jesse Rosenblum, appellant pro se.

Stuart Rabner, Attorney General, attorney for respondent Local Finance Board (Michael J. Haas, Assistant Attorney General, of counsel; Daniel P. Reynolds, Senior Deputy Attorney General, on the brief).

PER CURIAM

Petitioner, Jesse Rosenblum, appeals from a final decision of the Local Finance Board dismissing his administrative appeal, pursuant to N.J.S.A. 40A:9-22.7(c), from two determinations of the Borough of Closter Board of Ethics.

I

These are the most pertinent facts. By letter dated January 6, 2004, Rosenblum filed an ethics complaint with the Closter Board of Ethics (Ethics Board). His letter alleged that the Borough's Mayor had "[a]t no financial cost to the Borough . . . contracted with an advertising firm . . . for the installation of banners on public property along 'Main Street.'" Rosenblum alleged that the Mayor entered into the contract without the approval of the Borough Council, and that the agreement violated the Borough's sign ordinance. Accordingly, Rosenblum's complaint alleged that "[t]he Mayor, for gain, as a private party, involved the Borough in an arrangement which was beyond his authority." Rosenblum had also filed an action in lieu of prerogative writs in the Law Division concerning his challenge to the banner contract. We considered his appeal in that case last term, and affirmed the dismissal of his Law Division action on January 5, 2006. Rosenblum v. CGI Commc'ns, Inc., No. A-4915-04 (App. Div. Jan. 5, 2006).

Rosenblum filed a second complaint with the Ethics Board in an undated letter headed "Ethics Complaint No. 2." In this letter, he asserted that at a Borough Council meeting "a few years ago, an informed resident made inquiry as to whether [the Borough attorney] was buying mutual funds from a firm represented by [the Mayor]", and the Mayor had denied the allegation. Rosenblum's letter also alleged that "[r]ecently, a member of the Zoning Board was not reappointed because the Mayor's urging to vote in a way as directed on a pending Application was not followed." The letter also contended that the Mayor had a recorded message on his business telephone and that the recorded message both solicited customers for his business and mentioned his elected office. With the letter, Rosenblum enclosed a transcript of the recorded message. The recorded message indicated that the person speaking was the Mayor of Closter and directed that "[i]f there is any messages regarding the Borough please leave same and if there is a message regarding [the Mayor's business] . . . , please leave a message." No dates or other specific information was provided concerning any of the three matters complained of. The letter then went on to ask "Are these three events merely the visible faces of an ominous iceberg? Is there an attempt, directly or indirectly, to foster and promote a 'pay-to-play' scheme?"

On January 15, 2004, the Ethics Board, despite concerns as to its jurisdiction over the matter, permitted Rosenblum to make an oral presentation concerning his first complaint. According to Rosenblum, at this meeting he elaborated on his complaint by alleging that as part of the banner contract the advertising company created a video, which featured the Mayor and which he used for his political advantage. However, the record does not reflect that Rosenblum made this allegation in writing. The Board decided to conduct further inquiry into the sponsorship fees included in the advertising contract, to determine whether the Mayor had received monetary compensation for approving the contract. Accordingly the Board requested the Mayor to attend a meeting on February 5, 2004, or to submit his written comments on the complaint "especially as it relates to any personal gain."

On February 5, 2004, three members of the Ethics Board met and conducted an investigatory meeting, open to the public, concerning Rosenblum's first complaint. As reflected in the minutes of the Ethics Board's March 11, 2004 meeting, the investigatory group subsequently reported to the full Board that "we were satisfied with the Mayor and [Borough] Administrator's answers to our questions, on the 'Contract' and 'Sponsorship Fees', and that we believed there wasn't an ethical breach, by the Mayor." However, the March 11 minutes contain no findings of fact or other factual explanation as to how the investigative group reached their conclusion that "there wasn't an ethical breach." On March 30, 2004, the Board sent Rosenblum a letter informing him that the Board concluded that his allegations were "without merit." This letter also sets forth no findings of fact or rationale for the conclusion.

At the same March 11 meeting, the Ethics Board also discussed Rosenblum's second complaint and determined "that each of the events [set forth in his complaint] were . . . without merit." While the meeting minutes do not reflect the factual basis for the Board's decision, the Board sent Rosenblum a second letter, also dated March 30, 2004, advising him that "the complaints [regarding business conducted between the Mayor and the Borough attorney 'some years ago;' an appointment to the Zoning Board; and an 'observation' concerning the Mayor's sources of income] lacked sufficient facts, were found to be outside of our jurisdiction and/or inappropriate for our review." The Board's letter further advised Rosenblum that the Board "will not waste time and resources on hearsay, generalized statements or frivolous matters that merely hint at some supposed indiscretion. Should you have a specific concern, please clearly identify the issue(s) and be certain of the facts before bringing it to the Board."

On April 19, 2004, Rosenblum appealed to the Local Finance Board (LFB). In his appeal, Rosemblum indicated that the issues "are as follows." First, he contended that as part of the advertising banner contract, "the Mayor received a one minute video which was placed on the Borough website and also, the website of his political party." (emphasis omitted). Second, he alleged that a specific member of the Zoning Board "told me that she was not reappointed this year by the Mayor because his instructions to support a particular Application were ignored." Third, he alleged that the recorded message on the Mayor's telephone might be part of a scheme to imply "that the land use Boards and Council can be favorabl[y] influenced by the Mayor" if applicants do business with him. Fourth, Rosenblum raised an issue that he had not mentioned in his prior complaint to the Ethics Board, concerning the Mayor and Council's failure to contact more than one Borough agency to solicit candidates for a vacancy on the Ethics Board.

On July 10, 2004, the LFB Chairperson advised Rosenblum that his appeal was deficient in various ways, and that the LFB lacked jurisdiction over his contention regarding the appointment of Ethics Board members. Rosenblum responded on July 23, 2004, offering more specific information. With respect to the banner contract, he alleged that the Mayor violated N.J.S.A. 40A:9-22.5(c) and (d) by "involving a banner display company in an illegal advertising contract so that he could personally gain political advantages through the no-cost acquisition of an expensive, professionally-produced videotape featuring himself." He also contended, based on the fact that the Mayor had allegedly attempted to sell mutual funds to a former Borough attorney, that the Mayor "may be soliciting other Borough officials and possibly individuals making application to the land use boards." He also contended that since the Mayor allegedly tried to influence the vote of a Zoning Board member on one occasion, he "may be seeking outcomes from the land use board(s) that favor his commission business clients or potential clients." However, he also indicated that the member who was not re-appointed had "voiced criticism of the mayor, her party leader." He further contended that the Mayor's answering machine recording "is a veiled sales pitch to entice those persons seeking the mayor's assistance in a matter involving the Borough," in violation of N.J.S.A. 40A:9-22.5(c) and (f). Finally, he objected to the fact that the Borough attorney defended the Mayor in Rosenblum's Law Division action challenging the banner contract.

On September 23, 2005, the LFB issued a final decision agreeing with the decisions of the Closter Ethics Board on both of Rosenblum's complaints, based on the record before the local board. The LFB decision did not set forth any additional factual findings or rationale but simply recited that the Closter Board had concluded that the first complaint was "without merit" and that allegations in the second complaint "lacked sufficient facts and were found to be outside of the local board's jurisdiction and/or inappropriate for their review."

Rosenblum filed "exceptions" to the LFB's decision on September 30, 2005. The LFB responded on October 28, 2005, indicating that the Board would not accept "exceptions," and that the proper procedure was to file an appeal with the Appellate Division. This letter also advised Rosenblum that the Board could not consider matters that he had not first brought before the local board, and reminded him that pursuant to N.J.A.C. 5:35-l.l(c), the LFB could not consider a complaint "on a matter which is pending in a court of law." (emphasis omitted).

II

On this appeal, petitioner raises the following issues:

POINT I: THE MAYOR FAILED TO DECLARE THE RECEIPT OF GIFTS EXCEEDING $400.

POINT II: THE MAYOR, AS A LOCAL GOVERNMENT OFFICER, BENEFIT[]ED FROM AN ILLEGAL CONTRACT THAT WAS IN CONFLICT WITH LOCAL ORDINANCES.

POINT III: ETHICS BOARD FAILED TO CONDUCT A MEANINGFUL REVIEW OF THE COMPLAINTS.

POINT IV: THE FINAL DECISION OF THE LOCAL FINANCE BOARD ERRED IN DEEMING THE RECORD BELOW SUFFICIENTLY COMPLETE AND IN ARBITRARILY AGREEING WITH THE ETHICS BOARD.

We must defer to the decision of the LFB so long as it is supported by substantial evidence in the record and is consistent with applicable law. In re Musick, 143 N.J. 206, 216 (1996). We will affirm the agency's decision unless petitioner establishes that the decision is arbitrary, capricious and unreasonable. County of Morris v. Skokowski, 86 N.J. 419, 424 (1981). It is also fundamental, however, that an agency must support its decision with reasons in the form of factual findings and conclusions of law, or we cannot engage in meaningful appellate review. In re Vey, 124 N.J. 534, 544 (1991).

We begin by considering Rosenblum's complaint about the advertising banner, an issue he also unsuccessfully litigated in a Superior Court action in lieu of prerogative writs. The Closter Board's decision offers no factual findings or other explanation for its conclusions and the LFB decision, relying only on the local board's decision, is no more informative. Nonetheless, we need not remand this aspect of the appeal to the LFB because we conclude that the agency lacked jurisdiction to consider Rosenblum's appeal, due to his pending Superior Court litigation concerning the banner contract.

The regulations of the LFB, N.J.A.C. 5:35-1.1(c), provide that "[t]he Board shall not process a complaint on a matter which is pending in a court of law or administrative agency of the State." We take judicial notice of Rosenblum's action in lieu of prerogative writs complaint, which was still in litigation at the time of his appeal to the LFB. Therefore, as the LFB correctly noted in its October 28, 2005 letter, the agency lacked jurisdiction to consider Rosenblum's appeal. We therefore affirm the LFB's decision on that basis.

We also affirm the LFB decision with respect to Rosenblum's second ethics complaint. Having reviewed the record, we find no abuse of discretion in the LFB's adoption of the local board's conclusion that the allegations of this complaint are either too vague and speculative or too insubstantial to warrant further action. Accordingly we affirm as to the disposition of the second complaint.

Affirmed.

 

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A-1216-05T1

November 20, 2006