Piscitelli v. City of Garfield Zoning Board of Adjustment
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The ethical mandate in N.J.S.A. 40A:9-22.5(d), prohibiting planning and zoning board members from hearing cases when cases of personal interest "might reasonably be expected to impair [their] objectivity or independence of judgment," was at the heart of this appeal. The Conte family filed an application to develop three lots in the City of Garfield. The issue raised was whether any members of the Garfield Zoning Board of Adjustment had a disqualifying conflict of interest because of the involvement of certain Conte family members in the Zoning Board proceedings. The Piscitellis objected to the development project and claimed that a conflict of interest barred Zoning Board members who were employed or had immediate family members employed by the Board of Education from hearing the application. The Piscitellis also contended that any members who were patients or who had immediate family members who were patients of the Contes also had a disqualifying conflict. No Zoning Board member disqualified himself or herself on conflict-of-interest grounds. The New Jersey Supreme Court reversed and remanded the case for further proceedings, namely for the trial court to make findings of whether any Zoning Board member had a disqualifying conflict of interest in hearing the application for site plan approval and variances in this case.
SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.
Vincent Piscitelli v. City of Garfield Zoning Board of Adjustment
(A-68-17) (079900)
Argued November 28, 2018 -- Decided March 27, 2019
ALBIN, J., writing for the Court.
Planning and zoning board members are barred from hearing cases when a
personal interest “might reasonably be expected to impair [their] objectivity or
independence of judgment.” N.J.S.A. 40A:9-22.5(d); see also N.J.S.A. 40:55D-69;
N.J.S.A. 40:55D-23(b). That ethical commandment is at the heart of this appeal, which
involves an application filed by members of the Conte family to develop three lots in the
City of Garfield. The issue raised is whether any members of the Garfield Zoning Board
of Adjustment had a disqualifying conflict of interest because of the involvement of
certain Conte family members in the Zoning Board proceedings.
Two of the three lots to be developed were co-owned by the irrevocable trusts of
Dr. Kenneth S. Conte (Dr. Kenneth) and his brother, Dr. Daniel P. Conte, Jr. (Dr.
Daniel). Dr. Daniel personally owned the third lot. A trust benefitting Dr. Kenneth’s
nephew -- Dr. Daniel P. Conte, III (Dr. Daniel III) -- and his two nieces applied for
development approvals. All three Contes practiced medicine in the adjacent medical
building owned by Dr. Kenneth and Dr. Daniel.
Dr. Kenneth was a longtime member and the then-president of the Garfield Board
of Education, which approves, among other things, school employee appointments,
contracts, and salaries. Five Zoning Board members were employed or had immediate
family members employed by the Garfield Board of Education. To avoid the appearance
of a conflict, the two lots owned by trusts bearing the names of Dr. Kenneth and Dr.
Daniel were transferred to the trust benefitting Dr. Kenneth’s nieces and nephew.
Despite the intra-family transfer of property, Dr. Kenneth made his presence known at
the hearing and made clear his position favoring the project.
The Piscitellis objected to the development project and claimed that a conflict of
interest barred Zoning Board members who were employed or had immediate family
members employed by the Board of Education from hearing the application. The
Piscitellis also contended that any members who were patients or who had immediate
family members who were patients of the Contes also had a disqualifying conflict.
1
No Zoning Board member disqualified himself or herself on conflict-of-interest
grounds. The Board granted site plan approval and the requested variances for the Conte
project. The trial court upheld the Zoning Board approvals and denied the Piscitellis’
request to inquire whether any Zoning Board members or their family members were
patients of Dr. Kenneth, his brother, or his nephew. The Appellate Division affirmed.
The Court granted the petition “limited to the issues related to the alleged conflicts
of interests of some members of the Zoning Board of Adjustment.” 235 N.J. 392 (2018).
HELD: The Court reverses and remands for further proceedings to decide whether any
Zoning Board member had a disqualifying conflict of interest in hearing the application
for site plan approval and variances in this case. The trial court must assess two separate
bases for a potential conflict of interest. First, did Dr. Kenneth -- as president or a
member of the Board of Education -- have the authority to vote on significant matters
relating to the employment of Zoning Board members or their immediate family
members? Second, did any Zoning Board members or an immediate family member
have a meaningful patient-physician relationship with any of the three Conte doctors? If
the answer to either of those questions is yes, then a conflict of interest mandated
disqualification and the decision of the Zoning Board must be vacated. The Court does
not possess sufficient information to answer those questions.
1. The overall objective of conflict of interest laws is to ensure that public officials
provide disinterested service to their communities and to promote confidence in the
integrity of governmental operations. Whether a disqualifying conflict of interest
required the recusal of any member of the Garfield Zoning Board of Adjustment from
hearing the development application is governed by three distinct sources of law: the
Local Government Ethics Law, N.J.S.A. 40A:9-22.2; the Municipal Land Use Law
(MLUL), N.J.S.A. 40:55D-69; and the common law, which is now codified in those
conflict statutes and still guides us in understanding their meaning, see Grabowsky v.
Township of Montclair, 221 N.J. 536, 552 (2015). The overlapping conflict-of-interest
codes that apply to this case can be distilled into a few common-sense principles. A
citizen’s right to a fair and impartial tribunal requires a public official to disqualify
himself or herself whenever the official has a conflicting interest that may interfere with
the impartial performance of his duties as a member of the public body. The question is
not whether a public official has acted dishonestly or has sought to further a personal or
financial interest; the decisive factor is whether there is a potential for conflict. A
conflict of interest arises whenever a public official faces contradictory desires tugging
him or her in opposite directions. It is an objective inquiry. (pp. 19-25)
2. The overarching issue is whether Dr. Kenneth’s association with and interest in the
development application before the Garfield Zoning Board of Adjustment had the
capacity to tempt certain Zoning Board members to consider their private interests at the
expense of their public duties. Concern by a public official that a vote might have a
2
negative impact on the official’s employment -- or a family member’s employment --
might give reason to consult one’s private interest. The record establishes Dr. Kenneth’s
interest in the development project. In assessing an alleged conflict of interest, courts are
not required to bow to formalisms concerning title to property when intra-family deals do
not obscure a true interest at stake. If any Zoning Board members had reason to believe
that voting against the application might be a bad career move for them or their family, a
disqualifying conflict of interest would be present under the Local Government Ethics
Law and the MLUL as informed by the common law. (pp. 25-30)
3. In this case, no different from other conflict cases, the determination of whether a
Zoning Board member possessed a disqualifying conflict of interest is a factual one. The
Court does not have a sufficient record upon which to answer that question and so
remands to the trial court. If the court finds that any Zoning Board member participated
in the proceedings while impaired by a disqualifying conflict, then it must declare that the
Board’s actions are a nullity and vacate the resolution granting site plan approval and
variance relief to the DSJ Family Trust. In that event, the Zoning Board would be
required to conduct new proceedings with conflict-free Board members. (pp. 30-32)
4. The Court further holds that if a Zoning Board member or his or her immediate family
member had a meaningful patient-physician relationship with Dr. Kenneth, Dr. Daniel, or
Dr. Daniel III during or before the Board proceedings, that Board member had a
disqualifying conflict of interest because of the special nature of the patient-physician
relationship. The determination of whether the patient-physician relationship is
meaningful will be fact specific in each case. Stressing that the potential disclosure of
highly intimate and personal health-care information raises legitimate privacy concerns,
the Court provides guidance on the precautions that must be taken to protect against the
unnecessary release of a patient’s health-care information and remands to the trial court
to explore this issue within the constraints set forth in the opinion. (pp. 32-38)
The judgment of the Appellate Division is REVERSED and the matter is
REMANDED to the trial court for further proceedings.
JUSTICE SOLOMON, dissenting in part, agrees to a remand to permit further,
but careful, examination of the nature and extent of the physician-patient relationships at
issue but is of the view that Dr. Kenneth’s relationship to the DSJ Family Trust’s
application is too attenuated to qualify as a disqualifying conflict of interest and that a
remand to determine his authority by virtue of his position on the Board of Education is
therefore unnecessary.
CHIEF JUSTICE RABNER and JUSTICES PATTERSON and TIMPONE join in
JUSTICE ALBIN’s opinion. JUSTICE SOLOMON filed an opinion dissenting in
part, in which JUSTICES LaVECCHIA and FERNANDEZ-VINA join.
3
SUPREME COURT OF NEW JERSEY
A-
68 September Term 2017
079900
Vincent Piscitelli and
Rose Mary Piscitelli,
Plaintiffs-Appellants,
v.
City of Garfield Zoning Board of Adjustment;
Arlene Patire; Robert Cochrane; DSJ Family
Trust; Daniel P. Conte, III, Stacey A. Conte and
Jamie G. Kreshpane, Trustees of the DSJ Family Trust;
and Dr. Daniel P. Conte, Jr.,
Defendants-Respondents.
On certification to the Superior Court,
Appellate Division.
Argued Decided
November 28, 2018 March 27, 2019
Anthony J. Sposaro argued the cause for appellants
(Anthony J. Sposaro, on the briefs).
Alyssa A. Cimino argued the cause for respondents City
of Garfield Zoning Board of Adjustment, Arlene Patire
and Robert Cochrane (Cimino Law, attorneys; Alyssa A.
Cimino, on the brief).
Charles H. Sarlo argued the cause for respondents DSJ
Family Trust; Daniel P. Conte, III, Stacey A. Conte and
Jamie G. Kreshpane, Trustees of the DSJ Family Trust;
1
and Dr. Daniel P. Conte, Jr. (Charles H. Sarlo, of counsel
and on the briefs).
Robyn K. Lym argued the cause for amicus curiae
Libertarians for Transparent Government (Pashman Stein
Walder Hayden, attorneys; CJ Griffin, of counsel and on
the brief, and Suzanne M. Bradley, Robyn K. Lym, and
Yelena Yukhvid, on the brief).
JUSTICE ALBIN delivered the opinion of the Court.
Public confidence in the integrity of our municipal planning and zoning
boards requires that board members be free of conflicting interests that have
the capacity to compromise their judgments. The maintenance of public trust
in municipal government is the focus of statutory ethical codes, guided by
common law principles, that bar planning and zoning board members from
hearing cases when a personal interest “might reasonably be expected to
impair [their] objectivity or independence of judgment.” N.J.S.A. 40A:9-
22.5(d); see also N.J.S.A. 40:55D-69; N.J.S.A. 40:55D-23(b). That ethical
commandment is at the heart of the appeal before us.
This case involves an application made by members of the Conte family
for site plan approval and variances to construct a gas station, car wash, and
quick lube on three lots in the City of Garfield. The issue raised is whether
any members of the Garfield Zoning Board of Adjustment had a disqualifying
2
conflict of interest because of the involvement of certain Conte family
members in the Zoning Board proceedings.
Two of the three lots to be developed were co-owned by the irrevocable
trusts of Dr. Kenneth S. Conte (Dr. Kenneth) and his brother, Dr. Daniel P.
Conte, Jr. (Dr. Daniel). Dr. Daniel personally owned the third lot. A trust
benefitting Dr. Kenneth’s nephew -- Dr. Daniel P. Conte, III (Dr. Daniel III) --
and his two nieces applied for development approvals. All three Contes
practiced medicine in the adjacent medical building owned by Dr. Kenneth and
Dr. Daniel.
Dr. Kenneth was a longtime member and the then-president of the
Garfield Board of Education. The Board of Education approves, among other
things, school employee appointments, contracts, and salaries. Five Zoning
Board members were employed or had immediate family members employed
by the Garfield Board of Education. To avoid the appearance of a conflict, the
two lots owned by trusts bearing the names of Dr. Kenneth and his brother Dr.
Daniel were transferred to the trust benefitting Dr. Kenneth’s nieces and
nephew. Despite the intra-family transfer of property, Dr. Kenneth made his
presence known at the Zoning Board hearing and made clear his position
favoring the project.
3
Vincent Piscitelli and his daughter Rose Mary objected to the
development project. They claimed that a conflict of interest barred Zoning
Board members who were employed or had immediate family members
employed by the Board of Education from hearing the application because Dr.
Kenneth, as Board of Education president, voted on school-district personnel
matters. The Piscitellis also contended that any Zoning Board members who
were patients or who had immediate family members who were patients of Dr.
Kenneth, Dr. Daniel, or Dr. Daniel III also had a disqualifying conflict of
interest.
No Zoning Board member disqualified himself or herself on conflict-of-
interest grounds. The Board granted site plan approval and the requested
variances for the Conte project. The Piscitellis filed a complaint in lieu of
prerogative writs in Superior Court to vacate the Zoning Board approvals,
alleging that the Board members’ disqualifying conflicts of interest
undermined the legality of the proceedings. The trial court upheld the Zoning
Board approvals, finding that no conflicts of interest had impaired the Board
members. The court also denied the Piscitellis’ request to inquire whether any
Zoning Board members or their family members were patients of Dr. Kenneth,
his brother, or his nephew.
The Appellate Division affirmed.
4
We reverse and remand for further proceedings to decide whether any
Zoning Board member had a disqualifying conflict of interest in hearing the
application for site plan approval and variances in this case. The trial court
must assess two separate bases for a potential conflict of interest. First, did
Dr. Kenneth -- as president or a member of the Board of Education -- have the
authority to vote on significant matters relating to the employment of Zoning
Board members or their immediate family members? Second, did any Zoning
Board members or an immediate family member have a meaningful patient-
physician relationship with any of the three Conte doctors? If the answer to
either of those questions is yes, then a conflict of interest mandated
disqualification and the decision of the Zoning Board must be vacated. We do
not possess sufficient information to answer those questions. We therefore
reverse the judgment of the Appellate Division and remand to the trial court to
determine whether any disqualifying conflicts impaired the Zoning Board
proceedings. See N.J.S.A. 40A:9-22.5(d); N.J.S.A. 40:55D-69.
I.
A.
Dr. Kenneth S. Conte is a prominent citizen in the City of Garfield ,
where he has practiced medicine for many decades.1 He has served since 1980
1
The facts adduced here come from the proceedings before the Zoning Board,
5
as a member of the Garfield Board of Education, including as vice president
and president. The Board of Education governs the school district and makes
important employment decisions concerning school personnel. Additionally,
Dr. Kenneth’s brother, Dr. Daniel P. Conte, Jr., served for many years as
medical inspector of the school district, including during the Zoning Board
hearing. Five members of the Zoning Board were employed or had immediate
family members employed by the Board of Education.
The Kenneth S. Conte Irrevocable Trust II (Dr. Kenneth Trust) and the
Dr. Daniel P. Conte, Jr. Irrevocable Trust I (Dr. Daniel Trust) owned two of
three lots on Midland Avenue in Garfield, the site of a proposed gas station,
car wash, and quick lube. Dr. Daniel owned the third lot personally with his
wife, who was then deceased. Immediately adjacent to the proposed
construction site is the Ken-Dan Medical Center owned by Dr. Kenneth and
Dr. Daniel. There, the two brothers practice medicine along with Dr.
Kenneth’s nephew, Dr. Daniel P. Conte, III. Also adjacent to the construction
site are other lots owned by Conte family members.
Dr. Kenneth’s nephew and two nieces (Dr. Daniel’s children) -- Dr.
Daniel III, Stacey A. Conte, and Jamie G. Kreshpane -- are the trustees and
the record developed in the action in lieu of prerogative writs in the Superior
Court, and the appendices submitted to the Appellate Division and this Court.
6
beneficiaries of the DSJ Family Trust. 2 In March 2014, the DSJ Family Trust
applied for site plan and variance approvals with the Garfield Zoning Board to
construct a four-bay gas station, car wash, and quick lube on the three lots on
Midland Avenue. At the time of the application, the DSJ Family Trust did not
have an ownership interest in any of the three lots. 3
Vincent and Rose Mary Piscitelli resided within 200 feet of the proposed
construction site. They objected to the merits of the development. They also
asserted that Zoning Board members who were employed or had immediate
family members employed by the Board of Education should disqualify
themselves on conflict-of-interest grounds. The Piscitellis argued that Dr.
Kenneth, in his capacity as a Board of Education member and president, had
the ability to influence the careers of Zoning Board members and their
immediate family members employed in the school district.
In an attempt to eliminate the conflict issue, Dr. Kenneth’s nephew and
nieces, acting as trustees of their uncle’s trust, transferred the Dr. Kenneth
Trust’s fifty-percent interest in two of the three lots to the DSJ Family Trust
2
The trust’s initials -- DSJ -- correspond with the names Daniel, Stacey, and
Jamie.
3
The initial land use development application stated that the applicant was the
“Trust of Daniel P. Conte, III, Stacey A. Conte and Jamie G Kreshpane.”
7
for $420,500. On that same date, Karl Kreshpane, the then-trustee of the Dr.
Daniel Trust, transferred for one dollar the remaining interest in those two lots
to the DSJ Family Trust.4 As a result of that transaction, Dr. Daniel and his
three children, who controlled the DSJ Family Trust, owned the three lots
subject to the development application.
At the Zoning Board hearing, attorney David Piscitelli represented his
father Vincent, who objected on conflict-of-interest grounds, demanding that
Zoning Board members disclose their relationship to the school district.
Piscitelli was not persuaded that the transfer of property in Dr. Kenneth’s trust
to his nieces and nephew eliminated the conflict. Piscitelli argued that Dr.
Kenneth’s interest in the project was still evident from the intra-family
property transfer and from Dr. Kenneth’s co-ownership of the adjacent medical
building with his brother Dr. Daniel, who retained his interest in one of the lots
to be developed. The DSJ Family Trust responded that Dr. Kenneth had no
remaining financial or beneficial interest in the subject property and therefore
no conflict barred a Zoning Board member from hearing the development
application, regardless of whether a Board member or a family member was
employed by the Board of Education. Piscitelli also objected on conflict
4
One month earlier, the addendum to the land use development application
filed by the DSJ Family Trust’s attorney listed Kenneth Conte as the trustee of
the Dr. Daniel Trust.
8
grounds to Zoning Board members hearing the application if they or an
immediate family member were patients of Dr. Kenneth, Dr. Daniel, or Dr.
Daniel III.
Dr. Kenneth appeared at the first meeting, greeting some in attendance.
In brief testimony before the Zoning Board, Dr. Kenneth challenged the
Piscitellis’ standing to object. Dr. Kenneth testified that Vincent Piscitelli’s
wife had been his patient for thirty years and that he also had treated her
daughters. Dr. Kenneth asserted that David Piscitelli’s representation of his
father -- and the Piscitellis’ role in the proceedings -- “smells of a conflict.”
Dr. Kenneth and his brother Dr. Daniel attended all of the Zoning Board
meetings. Dr. Daniel III sat at the applicants’ table, except at one meeting
when his father took his place.
At the second Zoning Board meeting, the Board’s chairperson, Arlene
Patire, disclosed that she worked for the Board of Education. Nonetheless,
neither Patire nor any other Board member with an employment connection
with the Board of Education disqualified himself or herself from hearing the
development application. The Zoning Board attorney advised Board members
that they did not have to disclose whether they had a patient-physician
relationship with Dr. Kenneth, Dr. Daniel, or Dr. Daniel III, and none did. The
9
merits of the development application were addressed through the expert
testimony of a number of witnesses at the hearing.
At the third meeting, after the Board heard further expert testimony on
the application, the chairperson opened the floor to comments from the public.
In all, thirty-one members of the public spoke, twenty-two in favor of and nine
opposed to the application. Many who offered comments about the
construction of the gas station, car wash, and quick lube perceived the
development project to be a Conte family undertaking. Here are some
examples:
Antoinette Scaravelloni: “Who are the Contes?
They’re two very good doctors who have contributed
to Garfield all their lives.”
Joseph Cala: “[L]et’s get to the business at hand.
And that’s the credibility of the Conte family.”
Betty Ann Benigno: “I think it’s a great idea that the
Contes open up a car wash.”
Rico Benigno: “The Contes are going [to] give us a
beautiful car wash.”
Donna LaPierre: “I feel that the Contes can spend
their money anywhere.”
Choudhary Manzoor: “[W]e should appreciate the
Conte family bringing this kind of nice project in [the]
City of Garfield.”
Richard Derrig: “The Conte family has a long,
dedicated commitment to Garfield and they always
10
will. . . . [T]hey decided to open a new family
business within their community. I commend the
Contes for that decision.”
Joyce Nitti: “I can vouch for the Contes because I
know them a long time. I know they’re looking out
for the community, they’re very good people.”
Paul Crochiola: “[W]e need a good car wash. And
it’s state of the art. I think the Contes should be
approved for their project.”
Anthony Barckett: “I support the Contes, yes. I
believe what others have said is right, they’re putting
money back in the community.”
Charles Nucifora: “I think it’s a great project. It’s an
entrepreneurial on the Contes part.”
Rose Mary Piscitelli: “The Conte family doesn’t have
to build a car wash to clean up this lot . . . . They can
build what is allowed by the zoning laws . . .
residential homes.”
Four of the public members who gave testimony in favor of the project --
Derrig, Barckett, Nucifora, and Jeffrey Stewart -- served with Dr. Kenneth on
the nine-member Board of Education in 2014. None apparently owned
property within 200 feet of the construction site.
At the final meeting in August 2014, after hearing additional expert and
public-member testimony, the Zoning Board voted seven to zero to grant
preliminary and final site plan approval and a number of variances to develop
the gas station, car wash, and quick lube. At the time, the Board of Education
11
employed Zoning Board chairperson Arlene Patire and her husband, Board
member Paul Houlis, and immediate family members of Board members
Carmine Breonte, Salvatore Lamendola, and Robert Cochrane. 5 In October
2014, the Zoning Board issued a formal resolution granting the DSJ Family
Trust site plan approval and variances.
B.
In December 2014, the Piscitellis filed a complaint in lieu of prerogative
writs in the Superior Court, seeking to vacate the Zoning Board’s resolution.
The complaint named as defendants the Garfield Zoning Board of Adjustment
and Board members Patire and Cochrane (Zoning Board); Dr. Daniel Conte,
Jr.; and the DSJ Family Trust and its trustees, including Dr. Daniel Conte, III.
As grounds for relief, the Piscitellis pointed to deficiencies in the Board’s
grant of the land-use approvals and, separately, to alleged conflicts of interest
impairing the impartiality of certain members of the Board. The Piscitellis
asserted that a disqualifying conflict of interest applied (1) to any member of
the Zoning Board who was employed or who had a family member employed
by the Board of Education and (2) to any Zoning Board member who had been
5
Zoning Board member Cochrane did not vote on the application, although he
was present and participated at the first three of the four meetings. An
alternate Zoning Board member voted in his place on the last hearing date.
12
a patient of Dr. Kenneth, Dr. Daniel, or Dr. Daniel III, or whose family
member had been a patient.
The prerogative-writs action revealed, through interrogatory responses,
that the Garfield Board of Education employed Zoning Board members Patire
and Houlis as well as the immediate family of Board members Patire, Breonte,
Cochrane, and Lamendola. The trial court, however, struck interrogatory
questions seeking the disclosure of whether Board members or their immediate
family members were or had been patients of Dr. Kenneth, Dr. Daniel, or Dr.
Daniel III. The court held that the inquiry into a patient-physician relationship
was not relevant and thus exceeded the permissible scope of discovery. The
court reasoned that those who serve on zoning boards of adjustment do not
surrender their right to withhold medical information from public disclosure.
At the conclusion of a bench trial, the court dismissed the Piscitellis’
prerogative-writs action. The court found that the Zoning Board’s decision to
grant site plan approval and variance relief for the gas station, car wash, and
quick lube was not “arbitrary, capricious, or unreasonable.” In its review of
the record, the court made no distinction between Dr. Kenneth and Dr. Daniel
and the trusts bearing their names. The court noted that when the development
application was filed, the subject lots “were jointly owned by Dr. Kenneth S.
Conte and his brother Dr. Daniel P. Conte, Jr.”
13
The court rejected the Piscitellis’ argument that Zoning Board members
faced a disqualifying conflict of interest if either they or their family were
employed by the Board of Education. The court evidently gave great weight to
the fact that, despite his position as Board of Education president, Dr. Kenneth
was not the applicant and had no direct ownership interest in the property after
its transfer to the DSJ Family Trust. The court determined it could not infer
that Zoning Board members lacked impartiality merely because the Board of
Education employed some Zoning Board members or their family.
C.
In an unpublished per curiam opinion, a three-judge Appellate Division
panel affirmed the findings of the trial court, which upheld the Zoning Board’s
grant of site plan approval and variance relief.6 The panel agreed with the trial
judge “that the zoning board members were not disqualified from voting on the
application.” The panel acknowledged that Dr. Kenneth was a member of the
Board of Education, which employed some of the Zoning Board members and
their relatives. In the panel’s view, however, there was no conflict because Dr.
Kenneth’s interest in the property, owned “through an individual trust in his
name,” was sold to the DSJ Family Trust after the filing of the development
6
Our recitation of the issues before the trial court and Appellate Division is
limited to those relevant to the appeal before this Court.
14
application. The panel observed that, although Dr. Kenneth’s nieces and
nephew were the beneficiaries and trustees of the DSJ Family Trust, Dr.
Kenneth had no control over that trust. The panel concluded that “the
connection between [the DSJ Family Trust] and the [Board of Education] was
too attenuated to support a finding of a conflict of interest on the part of the
zoning board members.” The panel did not address whether Board members
had a duty to disclose a patient-physician relationship with either Dr. Kenneth,
Dr. Daniel, or Dr. Daniel III.
The Piscitellis petitioned for certification raising four issues. We
granted the petition “limited to the issues related to the alleged conflicts of
interests of some members of the Zoning Board of Adjustment.” 235 N.J. 392
(2018). We also granted the motion of Libertarians for Transparent
Government to participate as amicus curiae.
II.
A.
The Piscitellis contend that certain Zoning Board members were fatally
tainted with conflicts of interest, despite the “eleventh hour transfer” of two
lots from the Dr. Kenneth Trust and the Dr. Daniel Trust to a trust controlled
by and benefitting Dr. Kenneth’s nieces and nephew. The Piscitellis maintain
that because the Board of Education employed Zoning Board members and
15
their immediate family, that employment “might reasonably be expected to
impair [their] objectivity or independence of judgment.” See N.J.S.A. 40A:9-
22.5(d). That is so, the Piscitellis reason, because Dr. Kenneth was the then-
president of the Board of Education; his brother was the school district’s
longtime medical inspector; and four of the public members who testified in
support of the development project served with Dr. Kenneth on the Board of
Education. According to the Piscitellis, Dr. Kenneth and his brother were the
“de facto applicants,” and the transfer of their trust property to their blood
relatives did not alter the perception that the development application was a
Conte family project. The Piscitellis argue that the Board members faced a
potential conflict between their private interests and their public duties .
The Piscitellis also urge this Court to mandate that Zoning Board
members disclose whether they or their immediate family members had a
patient-physician relationship with Dr. Kenneth, Dr. Daniel, or Dr. Daniel III.
They claim that the intimate relationship between a patient and a physician
would impair the impartiality of a decisionmaker, and that privacy concerns
must give way to ensure the integrity of public proceedings.
Amicus Libertarians for Transparent Government echoes the Piscitellis’
position that those Zoning Board members who were employed or had family
members employed by the Board of Education “might feel influenced” to
16
render a decision favorable to the positions advanced by Dr. Kenneth and his
four colleagues on the Board of Education who testified in support of the
development application. Amicus, moreover, rejects the notion that our
conflict-of-interest laws can be circumvented by the transfer of an “ownership
interest in property over to loyal relatives” after the filing of a development
application. Confidence in the integrity of our government, amicus insists,
requires that officials operate in an atmosphere where the public’s interests and
their personal interests are not in conflict.
B.
The Zoning Board argues that Dr. Kenneth’s relationship to the
development project and the Zoning Board members “is too attenuated to
result in disqualification” based on a conflict of interest. The Zoning Board
reaches that conclusion because Dr. Kenneth “sold the property to DSJ Family
Trust, whose beneficiaries are his adult nieces and nephew,” because “he
retained no interest or control over the property,” and because the development
“application is entirely unrelated to the [Board of Education].” 7 It emphasizes
that Dr. Kenneth “had no financial gain to be derived from the Application”
and rejects the description of Dr. Kenneth as the “de facto Applicant.” The
7
The Zoning Board’s brief to this Court makes no distinction between Dr.
Kenneth and his trust.
17
Zoning Board dismisses any notion that, in voting for the development
application, its members might have been influenced by their or their family’s
employment by the Board of Education. The Zoning Board considers as
irrelevant that Dr. Kenneth served as president of the Board of Education and
that he and four other members of the Board of Education testified in favor of
the development project. The Board concludes that the Zoning Board
members did not have a disqualifying conflict because they had nothing to
gain for themselves or their families -- and therefore had no identifiable
personal interest -- by voting for the application.
Last, the Board maintains that there is no disqualifying conflict of
interest if a Board member had a patient-physician relationship with Dr.
Kenneth, Dr. Daniel, or Dr. Daniel III. In its view, “a patient Board Member’s
hypothetical treatment with one of the Conte physicians would not reasonably
be expected to impair his or her objectivity.”
The DSJ Family Trust aligns its arguments with those of the Zoning
Board. DSJ concedes that at the time of the filing of the development
application, two of the “lots were owned by trusts controlled by Doctor
Kenneth Conte . . . and Doctor Daniel Conte, Jr.” and that “to avoid any
perception of conflicts of interest,” the titles to those lots were transferred to
the DSJ Family Trust. DSJ asserts that, for conflict-of-interest purposes, any
18
connection between the Zoning Board members and the Board of Education
was too “remote or attenuated” because Dr. Kenneth and his brother were not
the applicants. Last, DSJ asserts no conflict would arise if any of the Zoning
Board members were patients of any of the three Conte doctors.
III.
The overall objective “of conflict of interest laws is to ensure that public
officials provide disinterested service to their communities” and to “promote
confidence in the integrity of governmental operations.” Thompson v. City of
Atlantic City, 190 N.J. 359, 364 (2007). Whether a disqualifying conflict of
interest required the recusal of any member of the Garfield Zoning Board of
Adjustment from hearing the development application is governed by three
distinct sources of law: the Local Government Ethics Law, N.J.S.A. 40A:9-
22.2; the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-69; and the
common law, which is now codified in those conflict statutes and still guides
us in understanding their meaning. See Grabowsky v. Township of Montclair,
221 N.J. 536, 552 (2015).
Historically, under the common law, the judiciary exercised
“comprehensive prerogative-writ jurisdiction” over “governmental tribunals,
including administrative agencies.” Wyzykowski v. Rizas, 132 N.J. 509, 522
(1993). Today, “[t]hat common-law jurisdiction is guaranteed under N.J.
19
Constitution [A]rticle VI, [S]ection 5, [P]aragraph 4.” Ibid. An essential
guarantee of the common law is the right “to a fair and impartial tribunal.”
Ibid. That right is protected by common law conflict-of-interest rules now
codified in the Local Government Ethics Law and the MLUL. Id. at 522-23;
see also Paruszewski v. Township of Elsinboro, 154 N.J. 45, 58 (1998). Those
rules continue to help guide our review of prerogative-writ challenges to
“municipal action on conflict of interest grounds.” Paruszewski, 154 N.J. at
58.
Our primary purpose is to construe the Local Government Ethics Law
and the MLUL, guided by the common law, in determining whether any
Zoning Board member was impaired by a conflict of interest. We review
issues of law before a Zoning Board de novo, owing no deference to the
interpretive conclusions of either the Zoning Board, the trial court, or the
Appellate Division. Dunbar Homes, Inc. v. Zoning Bd. of Adjustment of Twp.
of Franklin, 233 N.J. 546, 559 (2018).
The Local Government Ethics Law applies to all municipal office
holders, including mayors; municipal councils; municipal attorneys; and,
importantly for our purposes, members of planning boards and zoning boards
of adjustment. See N.J.S.A. 40A:9-22.3(g)(2) (defining a “[l]ocal government
officer” as “any person . . . serving on a local government agency which has
20
the authority to enact ordinances, approve development applications or grant
zoning variances”). N.J.S.A. 40A:9-22.5(d) provides that
[n]o 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 enacting this code of ethics for municipal officers and employees, the
Legislature declared its intent by stating:
a. Public office and employment are a public trust;
b. The vitality and stability of representative
democracy depend upon the public’s confidence in the
integrity of its elected and appointed representatives;
c. Whenever the public perceives a conflict between
the private interests and the public duties of a
government officer or employee, that confidence is
imperiled[.]
[ N.J.S.A. 40A:9-22.2(a) to (c).]
We must construe N.J.S.A. 40A:9-22.5(d) to further the Legislature’s
expressed intent that “[w]henever the public perceives a conflict between the
private interests and the public duties of a government officer,” “the public’s
confidence in the integrity” of that officer is “imperiled.” N.J.S.A. 40A:9- -
22.2(b) to (c); see also Grabowsky, 221 N.J. at 553. We also view the
statutory language consonant with common law principles. The issue is
21
whether Zoning Board members had an “interest” or “a direct or indirect
financial or personal involvement that might reasonably be expected to impair
[their] objectivity or independence of judgment.” N.J.S.A. 40A:9-22.5(d).
Viewed in that light, we must determine whether the Board of Education’s
employment of Zoning Board members, or the members of their immediate
family, might reasonably have impaired a Zoning Board member’s objectivity
or independence, given the interest of Dr. Kenneth -- the Board of Education
president -- in the outcome of the Zoning Board hearing. See Wyzykowski,
132 N.J. at 529.
The issue is whether the “private interests” of certain Zoning Board
members -- their possible concerns over their employment and their families’
employment in the school district -- clash with the exercise of their “public
duties” -- the faithful and impartial review of a development application. See
N.J.S.A. 40A:9-22.2. Clearly, if Zoning Board members had reason to
consider their “private interests” in casting a vote, that alone could undermine
public confidence in their impartiality.
In addition to the general ethics code applicable to all municipal officers
and employees are the constraints the MLUL places on members of zoning
boards. N.J.S.A. 40:55D-69 provides that “[n]o member of the board of
adjustment shall be permitted to act on any matter in which he has, either
22
directly or indirectly, any personal or financial interest.” 8 Read harmoniously
with the Local Government Ethics Law and the common law, a Zoning Board
member’s personal and financial interest would be implicated if a vote might
adversely or favorably impact his or her employment, or immediate family
member’s employment, in the school district. See N.J.S.A. 40:55D-69;
N.J.S.A. 40A:9-22.5(d).
As noted earlier, common law conflict-of-interest principles inform our
understanding of the Local Government Ethics Law and the MLUL. See
Wyzykowski, 132 N.J. at 523-25. One of the common law bases for
disqualification on conflict-of-interest grounds identified in Wyzykowski is an
indirect personal interest. Id. at 525-26. An indirect personal interest is
“when an official votes on a matter in which an individual’s judgment may be
8
Notably, the City of Garfield has an independent ethics rule for members of
its Zoning Board of Adjustment that largely tracks the language of the MLUL.
It provides that
[n]o member of the Planning Board or Zoning Board of
Adjustment shall act on any matter in which he has,
either directly or indirectly, any personal or financial
interest. Whenever any such member shall disqualify
himself from acting on a particular matter, he shall not
continue to sit with the Board on the hearing of such
matter nor participate in any discussion or decision
relating thereto.
[City of Garfield, N.J., Code ch. 188, art. III, § 188-25
(2018).]
23
affected,” such as when the official may cast a vote at odds with the wishes of
his private employer. See Grabowsky, 221 N.J. at 553 (quoting Wyzykowski,
132 N.J. at 525).
The overlapping conflict-of-interest codes that apply to this case can be
distilled into a few common-sense principles. A citizen’s right to “a fair and
impartial tribunal” requires a public official to disqualify himself or herself
whenever “the official has a conflicting interest that may interfere with the
impartial performance of his duties as a member of the public body.” Id. at
551 (quoting Wyzykowski, 132 N.J. at 522-23). The question is not “whether
a public official has acted dishonestly or has sought to further a personal or
financial interest; the decisive factor is 'whether there is a potential for
conflict.’” Id. at 554 (quoting Wyzykowski, 132 N.J. at 524). “The question
will always be whether the circumstances could reasonably be interpreted to
show that [conflicting interests] had the likely capacity to tempt the official to
depart from his sworn public duty.” Wyzykowski, 132 N.J. at 523 (quoting
Van Itallie v. Borough of Franklin Lakes, 28 N.J. 258, 268 (1958)).
A conflict of interest arises whenever a public official faces
“contradictory desires tugging [him or her] in opposite directions.” Id. at 524
(quoting LaRue v. Township of East Brunswick, 68 N.J. Super. 435, 448 (App.
Div. 1961)). This objective inquiry into whether a disqualifying conflict is
24
present dispenses with any probing into an official’s motive because the
ultimate goal is to ensure not only impartial justice but also public confidence
in the integrity of the proceedings. See Grabowsky, 221 N.J. at 554. Our
conflict-of-interest rules, however, do not apply to “remote” or “speculative”
conflicts because local governments cannot operate effectively if recusals
occur based on ascribing to an official a conjured or imagined disqualifying
interest. See ibid. (quoting Wyzykowski, 132 N.J. at 523). Requiring recusals
when appropriate does not discourage public-spirited citizens from serving on
boards. Dedicated public servants -- given proper guidance -- will not want to
sit in judgment if they are encumbered by a potential conflict.
To be sure, “[a] court’s determination 'whether a particular interest is
sufficient to disqualify is necessarily a factual one and depends upon the
circumstances of the particular case.’” Ibid. (quoting Van Itallie, 28 N.J. at
268). Given those basic principles, we turn to the facts of this case.
IV.
The overarching issue is whether Dr. Kenneth’s association with and
interest in the development application before the Garfield Zoning Board of
Adjustment had the capacity to tempt certain Zoning Board members to
consider their private interests at the expense of their public duties. Concern
by a public official that a vote might have a negative impact on the official’s
25
employment -- or a family member’s employment -- might give reason to
consult one’s private interest. Five Zoning Board members were either
employed or had immediate family members employed by the Garfield Board
of Education at the time of the development application and hearing in this
case. The chairperson and her husband were both employees in the school
district.
In 2014, Dr. Kenneth had served thirty-four years as a member of the
Board of Education and was the then-serving president of the nine-member
Board. The Board of Education is the executive body that governs the school
district and has the power to hire and dismiss “such principals, teachers,
janitors and other officers and employees, as it shall determine, and fix and
alter their compensation and the length of their terms of employment.”
N.J.S.A. 18A:16-1. It also has the authority to “[p]erform all acts and do all
things . . . necessary for the lawful and proper conduct, equipment and
maintenance of the public schools of the district.” N.J.S.A. 18A:11-1(d). As
such, a Zoning Board member employed by the Board of Education might
reasonably have had concern about courting disfavor with Dr. Kenneth, who
was in a position to influence school-district personnel matters.
The record establishes Dr. Kenneth’s interest in the development project.
Dr. Kenneth’s nieces and nephew were the trustees and beneficiaries of the
26
DSJ Family Trust, which applied to the Zoning Board to construct a gas
station, car wash, and quick lube on three lots on Midland Avenue in Garfield.
The DSJ Family Trust had no ownership interest in any of the lots at the time
it filed the development application. Instead, Dr. Kenneth and his brother’s
irrevocable trusts owned two of the lots, and his brother owned the third lot.
Dr. Kenneth and his brother, moreover, owned the adjacent Ken-Dan Medical
Center, where they practiced medicine with Dr. Kenneth’s nephew, Dr. Daniel
III. Additionally, Conte family members owned other adjacent lots.
The Zoning Board and DSJ Family Trust claim that the sale of the two
lots owned by Dr. Kenneth and his brother’s trusts to the DSJ Family Trust
removed any conflict of interest. Interestingly, the DSJ Family Trust’s brief to
this Court stated that the sold “lots were owned by trusts controlled by Doctor
Kenneth Conte . . . and Doctor Daniel Conte, Jr.” and the Zoning Board’s brief
stated that “[Dr. Kenneth] sold the property to DSJ Family Trust.” We need
not speculate whether the trustees of Dr. Kenneth’s irrevocable trust -- his
nieces and nephew -- acted independently of direction from him. It merely
bears mentioning that, at times, not even the Conte family or the Zoning Board
makes a distinction between Dr. Kenneth and the trust bearing his name -- the
two are referred to interchangeably.
27
Moreover, Dr. Kenneth’s brother, Dr. Daniel, the school district’s long-
serving medical inspector, retained the third lot. Nor can we dismiss the fact
that the two brothers owned the adjacent medical building. The interlocking
Conte family interests were not hidden, but were in plain sight.
Dr. Kenneth left no doubt about his interest in the project to the Zoning
Board. In his brief testimony to the Zoning Board, he attacked the Piscitellis’
standing to object to the project. He attended all four Zoning Board meetings,
and at the first meeting greeted some in attendance.
Many of those public members who testified at the hearing considered the
project a Conte family undertaking and did not distinguish among the Contes.
Four of Dr. Kenneth’s colleagues on the nine-member Board of Education
testified in favor of the gas station, car wash, and quick lube on Midland
Avenue. With those four joining Dr. Kenneth, a majority of the Board of
Education had weighed in on the project -- a point, presumably, not lost on
Zoning Board members who were employed or had immediate family members
employed by the Board of Education.
We would have to put blinders on to ignore what must have been self -
evident to those in attendance at the Zoning Board hearing: Dr. Kenneth’s
manifest interest in his family’s project to develop the property on Midland
Avenue -- property owned, in part, by a trust in his name when the
28
development application was filed. In assessing an alleged conflict of interest,
we are not required to bow to formalisms concerning title to property when
intra-family deals do not obscure a true interest at stake. See Grabowsky, 221 N.J. at 554 (emphasizing that our conflict of interest analysis always “depends
upon the circumstances of the particular case” (quoting Van Itallie, 28 N.J. at
268)).
Under the Local Government Ethics Law, might the Zoning Board
members’ employment connections to the Board of Education “reasonably be
expected to impair [their] objectivity or independence of judgment”? See
N.J.S.A. 40A:9-22.5(d). Under the MLUL, given their employment
connections to the Board of Education, did Zoning Board members have either
a direct or indirect personal or financial interest in the outcome of the Conte
family application? See N.J.S.A. 40:55D-69. In plainer terms, under the
common law, the question is whether, reasonably viewed, conflicting interests
“had the likely capacity to tempt [Zoning Board members] to depart from
[their] sworn public duty,” Wyzykowski, 132 N.J. at 523 (quoting Van Itallie,
28 N.J. at 268), or whether those Zoning Board members faced “contradictory
desires tugging [them] in opposite directions,” id. at 524 (quoting LaRue, 68 N.J. Super. at 448). In short, if any Zoning Board members had reason to
believe that voting against the development application might be a bad career
29
move for them or their family, a disqualifying conflict of interest would be
present under the Local Government Ethics Law and the MLUL as informed
by the common law.
Illustrating this type of conflict is Wyzykowski. 132 N.J. 509. In
Wyzykowski, the mayor of Neptune Township applied to the township’s
planning board to develop a previously vacant lot. Id. at 512. A planning
board member owed his appointment to three paid positions in municipal
government to the mayor. Id. at 516. We held that the planning board member
should have disqualified himself from hearing a matter involving the mayor
who assisted him in gaining the municipal government positions. Id. at 526.
We recognized the very real prospect that the planning board member would
face those “contradictory desires tug[ging] [him] in opposite directions” --
desires that pitted his personal interest against his public duties. See ibid.
(quoting LaRue, 68 N.J. Super. at 448).
In the end, we must be mindful that “[w]henever the public perceives a
conflict between the private interests and the public duties of a [Zoning Board
member],” the “public’s confidence in the integrity of its . . . appointed
representatives” is imperiled. See N.J.S.A. 40A:9-22.2(b) to (c). In deciding
whether any member of the Zoning Board was impaired by a disqualifying
conflict, we must eschew a mechanical approach that ignores the true
30
circumstances faced by an officeholder whose impartiality may reasonably
come into question in the eyes of the public. In this case, no different from
other conflict cases, the determination of whether a Zoning Board member
possessed a personal interest sufficient to warrant disqualification is “a factual
one and depends upon the circumstances of the particular case.” See
Grabowsky, 221 N.J. at 554 (quoting Van Itallie, 28 N.J. at 268).
We do not have a sufficient record before us to answer that question or
the others posed earlier about the potential for a conflict in this case. The
record does not disclose the precise statutory powers Dr. Kenneth exercised as
a member or as president of the Board of Education concerning the
appointment of school personnel, the approval of their contracts, the setting or
adjustment of their salaries, or other significant personnel decisions. Nor do
we know whether Zoning Board members might have had reasons to
apprehend that Dr. Kenneth would in the future vote on such matters -- matters
that clearly would give rise to a personal interest and the potential for a
disqualifying conflict. The minutes and resolutions of the Garfield Board of
Education, including those related to Zoning Board members or members of
their immediate family, and other sources of information may give insight on
this subject.
31
Accordingly, we remand to the trial court to determine whether any
Zoning Board member possessed a disqualifying conflict based on the
principles enunciated above. If the court finds that any Zoning Board member
participated in the proceedings while impaired by a disqualifying conflict, then
it must declare that the Board’s actions are a nullity and vacate the resolution
granting site plan approval and variance relief to the DSJ Family Trust. See
Randolph v. City of Brigantine Planning Bd., 405 N.J. Super. 215, 232-33
(App. Div. 2009) (citing Haggerty v. Red Bank Borough Zoning Bd. of
Adjustment, 385 N.J. Super. 501, 516-17 (App. Div. 2006)) (voiding and
setting aside zoning board proceedings “in their entirety” because of an
impermissible conflict of interest on the part of the board’s chairwoman). In
that event, the Zoning Board would be required to conduct new proceedings
with conflict-free Board members.
V.
The trial court and Appellate Division determined that Zoning Board
members did not have to disclose whether they or their immediate family
members had been or currently were patients of Dr. Kenneth, Dr. Daniel, or
Dr. Daniel III. We have recited in detail Dr. Kenneth’s involvement in the
development application. It bears emphasizing, however, that Dr. Daniel and
Dr. Daniel III stood to directly financially benefit if site plan approval and
32
variances were granted for the three lots on Midland Avenue. Dr. Daniel
personally owned one of the lots. The DSJ Family Trust -- the project’s
applicant -- owned the other two lots, and Dr. Daniel III was both a trustee and
beneficiary of that trust.
We hold that if a Zoning Board member or his or her immediate family
member had a meaningful patient-physician relationship with any of those
three doctors during or before the Board proceedings, that Board member had
a disqualifying conflict of interest. We reach that conclusion because of the
special nature of the patient-physician relationship -- a relationship in which
the patient “reposes the greatest trust for health-care decisions” in the hands of
the physician. Perez v. Wyeth Labs. Inc., 161 N.J. 1, 30 (1999).
Physicians are responsible for caring for and maintaining the physical and
mental health of their patients so that they can enjoy productive and happy
lives. In that light, the deep bonds that develop between patients and their
physicians are understandable.
Physicians every day diagnose and treat patients for the mild and
malignant maladies that afflict the human body and mind. It would be natural
for a patient to owe a debt of gratitude to a doctor who has removed a
cancerous lesion from the skin, repaired a shoulder injury, replaced a knee, set
a broken bone, performed heart or kidney surgery, delivered a child, prescribed
33
life-enhancing or -saving medications, provided psychiatric therapy, or every
year treated symptoms for the common cold or flu. It is not unusual for a
physician to treat a family over the course of decades.
A person may have difficulty judging objectively or impartially a matter
concerning someone to whom he would naturally feel indebted. By any
measure, under the conflict-of-interest codes previously discussed, we cannot
expect Zoning Board members to have a disinterested view of a doctor with
whom they, or immediate members of their family, have had a meaningful
patient-physician relationship.
We cannot here fully limn the contours of what would constitute a
meaningful patient-physician relationship because that may depend on the
length of the relationship, the nature of the services rendered, and many other
factors. The determination will be fact specific in each case. A few examples,
however, should provide some guidance. On one end of the relationship
spectrum may be the physician who, once five years ago, merely inoculated the
patient with a flu shot, and on the other end may be the physician who, ten
years ago, performed a life-saving heart transplant. A primary-care physician
who examines a patient annually and tends to the patient’s health-care issues
as they arise or the surgeon who performs a life-altering or -enhancing
34
procedure will fall within the sphere of a meaningful relationship that should
prompt disqualification.
The potential disclosure of highly intimate and personal health-care
information raises legitimate privacy concerns and therefore must be addressed
with great sensitivity. “[O]ur courts have recognized that competing public
policies may require disclosure of otherwise privileged information.” Kinsella
v. NYT Television, 382 N.J. Super. 102, 110 (App. Div. 2005). “[D]isclosure
is required only if the party seeking production makes a 'compelling’ showing
of a particularized need for the information.” Id. at 111 (citing McClain v.
Coll. Hosp., 99 N.J. 346, 362-64 (1985)). First, we must recognize that those
who hold public office and make decisions affecting the safety and welfare of
the community surrender some degree of privacy that common citizens enjo y.
Lehrhaupt v. Flynn, 140 N.J. Super. 250, 262 (App. Div. 1976) (“By accepting
public employment an individual steps from the category of a purely private
citizen to that of a public citizen. And in that transition he must of necessity
subordinate his private rights to the extent that they may compete or conflict
with the superior right of the public to achieve honest and efficient
government.”), aff’d, 75 N.J. 459 (1978). After all, the public must have
confidence that public officers are rendering decisions impartially and free of
35
any conflicts that may compromise their independence. See N.J.S.A. 40A:9-
22.2(b); see also Thompson, 190 N.J. at 374.
Nevertheless, the nature of any disclosure relating to a patient-physician
relationship must be weighed against the official’s reasonable expectation of
privacy. If the court determines that there is a meaningful patient-physician
relationship, then the nature of the disclosure will depend on , among other
factors, the degree of need for access to the information, the damage excessive
disclosure would cause to a patient’s right to privacy, the adequacy of
safeguards to prevent excessive disclosure, and the personal dignity rights of
the official. See Doe v. Poritz, 142 N.J. 1, 88 (1995) (discussing the factors to
be applied when determining whether the government must disclose
information implicating a privacy interest); see also Burnett v. County of
Bergen, 198 N.J. 408, 427 (2009) (adopting the Doe factors for determinations
of whether to disclose records sought under the Open Public Records Act).
Every reasonable precaution must be taken to protect against the
unnecessary release of a patient’s health-care information. Certain sensible
approaches should be kept in mind. A zoning board member who recognizes
the applicant as one with whom he or she has a meaningful patient-physician
relationship can simply disqualify himself or herself from the case, with
nothing more being said. One would expect, in most cases, a zoning board
36
member to know whether that type of meaningful relationship exists, after
some explanation by the zoning board attorney. If in doubt, the member can
consult with the board attorney and speak in hypothetical terms to gain an
understanding whether recusal is appropriate. Erring on the side of
disqualification when the board member has had a patient-physician
relationship with the applicant is the most prudent course.
The challenge will be in those cases where a board member, or the
member’s immediate family, has had a patient-physician relationship that the
member may not consider meaningful, but where an objector could conclude
that the relationship is one that “might reasonably be expected to impair [the
member’s] objectivity or independence of judgment.” See N.J.S.A. 40A:9-
22.5(d). In such cases, the board member should not be required to disclose
anything more than that he or she, or a family member, was at one time a
patient of the applicant or objector or someone with a property interest at stake
in the outcome of the proceedings. Then, if the issue is contested in an action
in lieu of prerogative writs, any disclosures should be heard in camera and ex
parte before a Law Division judge. Only if the judge concludes that disclosure
is necessary should some form of disclosure be mandated, and then only to the
extent reasonably necessary, minimizing the invasion of privacy into such
sensitive matters. A board member should not be required to reveal the precise
37
nature of a medical condition or other intimate details of treatment. Any
potential disclosure must be balanced against the sanctity of the privacy of the
patient’s health information.
Because the trial court determined that any inquiry into a meaningful
patient-physician relationship between a Board member and Dr. Kenneth, Dr.
Daniel, or Dr. Daniel III was irrelevant, it struck interrogatories that, if
answered, may have revealed such a relationship. We conclude that the trial
court erred in barring any inquiry into the subject matter. Dr. Kenneth and Dr.
Daniel had practiced medicine in Garfield for many decades. That one or both,
or Dr. Daniel III, may have had a meaningful patient-physician relationship
with a Board member or with the member’s immediate family is not a far-
fetched assumption.
Because the Appellate Division affirmed the Law Division judge, we
remand to the trial court to explore this issue within the constraints set forth in
this opinion.
VI.
An impartial hearing before a zoning board is an essential promise of our
laws. That promise cannot be fulfilled if those rendering decisions are
impaired by conflicts of interest. For the reasons expressed, we reverse the
38
judgment of the Appellate Division and remand to the trial court for
proceedings consistent with this opinion.
CHIEF JUSTICE RABNER and JUSTICES PATTERSON and TIMPONE
join in JUSTICE ALBIN’s opinion. JUSTICE SOLOMON filed an opinion
dissenting in part, in which JUSTICES LaVECCHIA and FERNANDEZ-VINA
join.
39
Vincent Piscitelli and
Rose Mary Piscitelli,
Plaintiffs-Appellants,
v.
City of Garfield Zoning Board of Adjustment;
Arlene Patire; Robert Cochrane; DSJ Family
Trust; Daniel P. Conte, III, Stacey A. Conte and
Jamie G. Kreshpane, Trustees of the DSJ Family Trust;
and Dr. Daniel P. Conte, Jr.,
Defendants-Respondents.
JUSTICE SOLOMON, dissenting.
I agree with the majority that a physician-patient relationship can be
deeply personal and may be capable, under certain circumstances, of creating a
disqualifying conflict of interest that imperils the public’s confidence . Hence,
I agree to a remand to permit further, but careful, examination of the nature
and extent of the physician-patient relationships at issue here. However,
because Dr. Kenneth’s relationship to the DSJ Family Trust’s application is
too attenuated to qualify as a disqualifying conflict of interest, I do not agree
with the majority that a remand is necessary to determine whether Dr. Kenneth
might, in his capacity as president or member of the Board of Education, vote
on significant matters relating to the employment of Zoning Board members o r
1
their immediate family. Therefore, a remand to determine Dr. Kenneth’s
authority by virtue of his position on the Board of Education is unnecessary.
Accordingly, I must respectfully dissent because I believe the trial court
judgment, affirmed by the Appellate Division, was correct in rejecting the
alleged Board of Education conflicts in this matter and should be affirmed.
I.
In 1991, the Legislature recognized that “[t]he vitality and stability of
representative democracy depend upon the public’s confidence in the integrity
of its elected and appointed representatives,” N.J.S.A. 40A:9-22.2(b), and
therefore established a statutory code of ethics for local government officers
and employees. The Legislature acknowledged that public employees,
particularly those representing their local municipalities, “cannot and should
not be expected to be without any personal interest in the decisions and
policies of government.” Id. § 22.4. Therefore, the Legislature sought to
strike the appropriate balance “between those conflicts of interest which are
legitimate and unavoidable in a free society and those conflicts of interest
which are prejudicial and material and are, therefore, corruptive of a
democracy and free society.” Ibid.
Of particular relevance to this appeal is N.J.S.A. 40A:9-22.5(d), which
provides that a local official may not “act in his official capacity in any matter
2
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.” 1 The statute in no way implicates a local
government official’s participation in an unrelated municipal board, absent a
financial or personal interest in the application at issue.
Furthermore, when analyzing the existence of a disqualifying conflict,
we are constrained to apply the ethics rules with caution. Grabowsky v.
Township of Montclair, 221 N.J. 536, 554 (2015). In an effort to strike the
appropriate balance envisioned by the Legislature in enacting the Local
Government Ethics Law, we must be mindful that “[l]ocal governments would
be seriously handicapped if every possible interest, no matter how remote and
speculative, would serve as a disqualification of an official.” Wyzykowski v.
Rizas, 132 N.J. 509, 523 (1993) (quoting Van Itallie v. Borough of Franklin
Lakes, 28 N.J. 258, 269 (1958)).
1
The Local Government Ethics Law defines “interest” as “the ownership or
control of more than 10% of the profits, assets or stock of a business
organization,” N.J.S.A. 40A:9-22.3(d), and “member of immediate family” as
“the spouse or dependent child of a local government officer or employee
residing in the same household,” id. § 22.3(i).
3
II.
With those guidelines in mind, it is important to first note that an
irrevocable trust bearing Dr. Kenneth’s name -- and not Dr. Kenneth himself --
owned a fifty-percent interest in the relevant lots at the time of the DSJ Family
Trust’s application. It is well settled that an irrevocable trust “cannot be
terminated by the settlor once it is created,” Black’s Law Dictionary 1651 (9th
ed. 2009), and “[u]ltimately . . . it is the best interests of the beneficiaries that
control,” Coffey v. Coffey, 286 N.J. Super. 42, 53 (App. Div. 1995); accord
Restatement (Second) of Trusts § 170 (Am. Law Inst. 1959). Dr. Kenneth was
not a trustee of the Dr. Kenneth Trust; his nephew and nieces served as the
trust’s sole trustees. Indeed, from the application’s inception, an irrevocable
trust bearing Dr. Kenneth’s name was the only nexus between Dr. Kenneth and
the relevant lots.
Additionally, nearly two months before the Zoning Board held its first
public hearing on the application, Dr. Kenneth’s nephew and nieces -- acting
as trustees -- transferred the Dr. Kenneth Trust’s undivided fifty-percent
interest in the two lots to the DSJ Family Trust. Our colleagues acknowledge
that finding Dr. Kenneth directed the trustees to initiate this transfer would be
mere speculation, making even more remote Dr. Kenneth’s feeble connection
to the lots. Absent any meaningful link to the relevant parcels or their transfer,
4
Dr. Kenneth’s relationship to the application is far too attenuated to qualify as
an “interest” under N.J.S.A. 40A:9-22.3(d).2
III.
The supposed connection between the Zoning Board, the Board of
Education, and the DSJ Family Trust’s application is Dr. Kenneth -- the then-
president of the Board of Education who was also the brother and uncle of the
beneficiaries of the irrevocable trusts that owned the lots at the time of the
hearing. As president of the Board of Education, Dr. Kenneth did not have the
authority to act unilaterally on behalf of the Board of Education as to any
matters regarding its employees. 3 Although five Zoning Board members had
either a direct or familial employment relationship with the Board of
Education at the time of the DSJ Family Trust’s application and hearing, the
application was wholly unrelated to the Board of Education or its property.
The Board of Education was neither the applicant nor an objector before the
2
Dr. Kenneth and his brother owned the medical building adjacent to the
relevant lots. However, any purported conflict created by ownership of the
adjacent medical building vanished upon transfer of the lots to the DSJ Family
Trust.
3
See Matawan Reg’l Teachers Ass’n v. Matawan-Aberdeen Reg’l Sch. Dist.
Bd. of Educ., 223 N.J. Super. 504, 507 (App. Div. 1988) (explaining that “a
majority vote of the members of the board constituting a quorum” is necessary
under N.J.S.A. 18A:11-1 to take any action).
5
Zoning Board. Neither the Board of Education nor any Zoning Board member
who had a direct or familial relationship with the Board of Education owned
the subject property or any property affected by the DSJ Family Trust’s
application. Nor did Zoning Board members vote on a matter that affected the
Board of Education’s interests, its revenue stream, or its employees when they
voted on the application at issue.
I agree with the trial court that absent a meaningful link between the
Zoning Board, the Board of Education, and the DSJ Family Trust’s
application, which does not exist here, a Zoning Board member’s direct or
familial employment relationship to the Board of Education cannot constitute a
disqualifying conflict of interest. I reach this conclusion because “to abrogate
a municipal action at the suggestion that some remote and nebulous interest is
present[] would be to unjustifiably deprive a municipality in many important
instances of the services of its duly elected or appointed officials.” Van Itallie,
28 N.J. at 269.
IV.
Nevertheless, the Piscitellis contend that the attenuated ties between the
Zoning Board, the Board of Education, and the DSJ Family Trust’s application
created a disqualifying conflict by virtue of Dr. Kenneth’s service on the
Board of Education of the City of Garfield in several capacities for more than
6
thirty years. A local official’s decades-long dedication to public service on a
municipal board unrelated to the Zoning Board considering the application
does not, in and of itself, create a disqualifying conflict of interest. This
conclusion is consistent with the balance struck by the Legislature in enacting
the Local Government Ethics Law. “Local officials who are thoroughly
familiar with their community’s characteristics and interests and are the proper
representatives of its people[] are undoubtedly the best equipped” to serve
their municipalities, “[a]nd their determinations should not be approached with
a general feeling of suspicion.” Ward v. Scott, 16 N.J. 16, 23 (1954). It bears
repeating that “[l]ocal governments would be seriously handicapped if every
possible interest, no matter how remote and speculative, would serve as a
disqualification of an official.” Wyzykowski, 132 N.J. at 523 (quoting Van
Itallie, 28 N.J. at 269).
V.
The Local Government Ethics Law governs whether any Zoning Board
member has a disqualifying conflict of interest with respect to an application.
It was enacted to provide clearer guidance to local officials by shoring up the
lines between what is, and is not, a disqualifying interest. Yet, the majority’s
conclusion renders murky those lines by impermissibly extending the Local
Government Ethics Law’s purview to reach the interests of Dr. Kenneth -- an
7
individual who is not subject to the limitations set forth under N.J.S.A. 40A:9-
22.5(d). The application before the Zoning Board in no way implicated any
interest of Dr. Kenneth or the Board of Education. Id. § 22.3(d). Therefore,
Dr. Kenneth’s position on the Board of Education could not have, in and of
itself, imbued the matter with a Board of Education interest. The majority’s
conclusion upsets the careful balance struck by the Local Government Ethics
Law. I therefore must respectfully dissent, in part.
8
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