SUSAN SCOBLINK-O'NEILL v. THE LOCAL FINANCE BOARD DEPARTMENT OF COMMUNITY AFFAIRSAnnotate this Case
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-0
THE LOCAL FINANCE BOARD,
DEPARTMENT OF COMMUNITY
December 4, 2014
Submitted July 8, 2014 Decided
Before Judges Espinosa and Kennedy.
On appeal from the Department of Community Affairs, Complaint #10-028.
Susan Scoblink-O'Neill, appellant pro se.
John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Donald M. Palombi, Deputy Attorney General, on the brief).
On January 28, 2013, respondent, the Local Finance Board (LFB), dismissed the complaint filed by appellant against the then-Mayor of the Borough of Haddon Heights, Scott M. Alexander, which asserted he had violated the Local Government Ethics Law, N.J.S.A. 40A:9-22.1 to -22.5, by proposing and supporting the appointment of Robert Gleaner, Esq., as the Borough's Solicitor in 2009, at a time when Gleaner represented the Mayor in a private "family law" matter. In her complaint, appellant argued that the Mayor created a "clear conflict of interest" by "facilitating" the appointment of Gleaner without revealing Gleaner represented him in a private action brought by his former wife1.
The Mayor responded to the complaint by letter in which he stated, in relevant part
It is true that Robert Gleaner was representing me in a family law matter in late 2008, when I asked him if he was interested in responding to the Borough's RFP for Borough solicitor. Prior to Mr. Gleaner's submission of an RFP and moving forward with a nomination, Mr. Gleaner and I discussed if there would be any conflicts with his representation of my family law matters and the job of being Borough Solicitor.
Shortly after this discussion, Mr. Gleaner provided me with Opinion 665 of the Advisory Committee on Professional Ethics of the New Jersey Supreme Court, decided in December of 1991, that established that an attorney is ethically permitted to represent a municipal official in any matter that is unrelated to the municipality. A copy of that Opinion is enclosed. Based on this opinion, we were comfortable that my family law matter was unrelated to duties that would be performed by Mr. Gleaner as solicitor for Haddon Heights and therefore permissible.
During the time that Mr. Gleaner was the Borough Solicitor for Haddon Heights, no situations arose where there was direct financial or personal involvement that impaired his or my objectivity or independence of judgment. If one had arisen, I would have asked Mr. Gleaner to recuse himself from the matter at hand. Mr. Gleaner represented me during his entire tenure as Borough Solicitor, which ended on January 31, 2010.
The referenced opinion, 655 of the Advisory Committee on Professional Ethics, 129 N.J.L.J. 108 (December 9, 1991), concluded that a municipal attorney's representation of a municipal official in a private matter is not per se prohibited, but that such representation may not be undertaken where the "municipality might be affected directly or indirectly [.]"
The materials before the LFB revealed that the Haddon Heights Borough Council undertook a public vote in January 2009, appointing Gleaner as the Solicitor for the municipality during calendar year 2009. The resolution set an annual retainer for Gleaner covering his attendance at meetings, preparation of ordinances and resolutions and his "interactions" with officials and citizens, as well as an hourly rate of $150 for litigation or special projects, subject to appropriations in the municipal budget.
Gleaner served as Borough Solicitor through January 31, 2010, and, during that time, he submitted invoices to the municipality for his services, which were reviewed and approved by the Borough Council. The invoices were the ordinary date, matter, and time bills submitted by attorneys to clients. None of the invoices concerned, even indirectly, the private legal affairs of the Mayor.
After reviewing this material and considering the question at its public meeting, the LFB concluded that the business relationship between the Mayor and the Solicitor was "too tenuous to constitute a prohibit[ed] involvement" and could not "reasonably be expected to impair" the Mayor's "objectivity or independence of judgment." This appeal followed.2
Appellant argues that the Mayor, by "appointing his personal lawyer to the position of municipal attorney," created the "appearance of a conflict of interest" which had the "potential to impair his objectivity or independence of judgment" in violation of N.J.S.A. 40A:9-22.5(d). In support of this argument, appellant posits a series of questions predicated upon suppositions without any evidential support in the record.
Our scope of review of an administrative agency action is limited and highly deferential. Providing the LFB's decision is supported by sufficient credible evidence in the record and was not "arbitrary, capricious, [or] unreasonable," it will be affirmed. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) (citing In re Warren, 117 N.J. 295, 296 (1989)). In making this determination, a reviewing court must examine: "(1) whether the agency's decision conforms with relevant law; (2) whether the decision is supported by substantial credible evidence in the record; and (3) whether, in applying the law to the facts, the administrative agency clearly erred in reaching its conclusion." Twp. Pharmacy v. Div. of Med. Assistance & Health Servs., 432 N.J. Super. 273, 283-84 (2013) (citing In re Stallworth, 208 N.J. 182, 194 (2011)).
We also review factual findings made by an administrative agency deferentially. On appeal, "the test is not whether an appellate court would come to the same conclusion if the original determination was its to make, but rather whether the factfinder could reasonably so conclude upon the proofs." Brady, supra, 152 N.J. at 210 (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985) (internal quotation marks omitted)). So long as the "factual findings are supported 'by sufficient credible evidence, courts are obliged to accept them.'" Ibid. (quoting Self v. Bd. of Review, 91 N.J. 453, 459 (1982)).
Under the common law, public officials are to "perform their duties free from any personal or pecuniary interests that may affect their judgment." Barrett v. Union Twp. Comm., 230 N.J. Super. 195, 200 (App. Div. 1989). Further, "it is not simply the existence of a conflict that may be cause to overturn an action of a public official, but also the appearance of a conflict." Randolph v. City of Brigantine Planning Bd., 405 N.J. Super. 215, 226 (App. Div. 2009). Municipal officials must "'avoid conflicting interests that convey the perception that a personal rather than the public interest might affect decision-making on matters of concern. Officials must be free of even the potential for entangling interests that will erode public trust in government actions.'" Id. at 226-27 (quoting Thompson v. City of Atlantic City, 190 N.J. 359, 374 (2007)). Disqualification is required when the officials' "direct or indirect private interests may be at variance with the impartial performance of their public duty." Randolph, supra, 405 N.J. Super. at 225 (citing Aldom v. Borough of Roseland, 42 N.J. Super. 495, 501 (App. Div. 1956)).
In addition to the common law, the Local Government Ethics Law must be considered when determining whether a conflict exists. Shapiro v. Mertz, 368 N.J. Super. 46, 52 (App. Div. 2004). The Ethics Law expanded what constitutes a conflict of interest. Ibid. Personal or financial "interests" as well as personal or financial "involvement" may create a conflict of interest. Id. at 53. N.J.S.A. 40A:9-22.5(d) states
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.
This prohibition codifies a long-standing common law principle that a public official is disqualified from acting in a matter in which she or he has a conflicting interest that would interfere with his or her public duty. Griggs v. Borough of Princeton, 33 N.J. 207, 219-220 (1960).
"The statutory bar 'is not confined to instances of possible material gain[,] but . . . it extends to any situation in which the personal interest of a board member in the 'matter' before it, direct or indirect, may have the capacity to exert an influence on his action in the matter.'" Randolph v. City of Brigantine Planning Bd., 405 N.J. Super. 215, 225 (App. Div. 2009) (quoting Zell v. Borough of Roseland, 42 N.J. Super. 75, 81 (App. Div. 1956)). Our Supreme Court has interpreted the statutory provision as precluding action by public officials in four situations
(1) "Direct pecuniary interests," when an official votes on a matter benefitting [sic] the official's own property or affording a direct financial gain; (2) "Indirect pecuniary interests," when an official votes on a matter that financially benefits one closely tied to the official, such as an employer, or family member; (3) "Direct personal interest," when an official votes on a matter that benefits a blood relative or close friend in a non-financial way, but a matter of great importance, as in the case of a councilman's mother being in the nursing home subject to the zoning issue; and (4) "Indirect Personal Interest," when an official votes on a matter in which an individual's judgment may be affected because of membership in some organization and a desire to help that organization further its policies.
[Wyzykowski v. Rizas, 132 N.J. 509, 525-26 (1993).]
It is clear beyond question that none of the situations identified by the Court is implicated in the case before us.
Moreover, the LFB correctly determined that, on the record before it, the relationship between counsel and the Mayor was "too tenuous" to support a violation of N.J.S.A. 40A:9-44.5(d). The appointment of Gleaner as the Solicitor for the municipality was made by the Borough Council, which likewise reviewed and approved his invoices without any vote by the Mayor. See N.J.S.A. 40A:60-5(c). Nothing in the record remotely suggests that the private family law matter that arose between the Mayor and his former wife affected or implicated any public interest pertaining to the municipality.
1 Appellant raised other claims against Alexander also, none of which are the subject of this appeal.
2 At its first consideration of the matter in 2012, the motion to find the Mayor in violation of the Local Government Ethics Law failed before the LFB. Upon appeal, the LFB moved to remand the matter for "another vote" because issue had been taken by appellant about the propriety of several abstentions among LFB members. We granted the motion to remand, and the LFB's subsequent majority vote, finding no statutory violation, is the subject of this appeal.