Q Shortly after he was terminated, the municipal public defender in our community filed a Conscientious Employee Protection Act (CEPA) claim. He contends that he was fired because he refused to contribute to the mayor’s reelection campaign fund. The mayor insists the public defender was terminated for incompetence. The public defender is paid a yearly salary, but he has his own private law office, and does his work for the community at that location. He represents all the indigent criminal defendants in the municipal court, but he does his work independently. I thought he was an independent contractor rather than an employee and therefore could not file a valid CEPA claim, but my colleague tells me that a case on the subject indicates he can. Is this so?
A In the case of Stomel v. City of Camden, (A-45/46-06; decided on July 25, 2007), the New Jersey Supreme Court did hold that the former municipal public defender was an employee for purposes of filing a claim under the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8. The definition of employee for CEPA purposes is set forth in N.J.S.A. 34:19-2b as: “…any individual who performs services for and under the control and direction of an employer for wages or other remuneration.”
CEPA is remedial legislation, intended to encourage employees to report illegal or unethical workplace practices and to discourage such practices by employers, and therefore it has been interpreted broadly by the courts. In Pukowsky v. Caruso, 312 N.J. Super. 171 (App.Div. 1998), the Court used a definition of employee under CEPA that went beyond the literal “control and direction” words of the statute. The opinion recognized that the non-traditional, professional employee cannot be expected to be under the “control and direction” of an employer who is not expert in the professional’s field. Therefore, the standard in such a situation should focus on the degree to which the professional’s work is functionally integrated with the employer’s business.
In the Stomel case, the Court found that the public defender had established a prima facie case that he was a city employee for CEPA purposes. In performing his work for the city, although he worked out of his private office and exercised his independent professional judgment, the public defender was not free to choose his own clients, had to file written reports detailing the duties he performed, and was paid a yearly salary. He provided the public defender services that the city had to provide under the Municipal Public Defender’s Act, and thus his work was functionally integrated with the city’s delivery of necessary municipal services.
Q Can a member of a planning or zoning board or municipal council ever appear before or be involved in a matter before the body on which he serves without violating the Local Government Ethics Law?
A Several cases have dealt with this issue in recent years. The law normally prohibits such participation as a conflict, but allows an official to appear on behalf of his own interests under appropriate circumstances.
In Jock v. Shire Realty, 295 N.J. Super. 67 (App.Div.1996), a corporation controlled by a Board of Adjustment member was seeking several bulk variances for its property. The member appeared before the board to testify in support of the grant of these variances, and then voted for these variances as a board member. The court ruled that the grant of the variances was invalid.
In Murtagh v. Borough of Park Ridge, unreported (App. Div. 2006), 2006 WL 1541930, however, the Court found no conflict when a board member appeared before the board to object to the grant of a variance, and then recused himself from the vote. The member lived within 200 feet of the property involved. The court explained that, under these facts, only the board member could explain the nature of his objection as a neighboring property owner and he was supporting adherence to the zoning code, not requesting a deviation from it.
In one Law Division case, the court held that the adoption of a zoning ordinance was invalid because the council president, who had a conflict, presided over the proceedings, even though he did not discuss or vote on the matter. (Beacon Hill Farm,LLC. V. Marlboro, unreported 2006, 2006 WL 1161361). Furthermore, in a recent unreported Appellate Division case, Newmark v. Mendham (A-4857-05, 2007), the court held that recusal and absence from deliberations was still not enough to avoid the taint of conflict where the nonparticipating board member was the architect who prepared the plans for the subdivision and variance application submitted.
This column is for informational purposes only, and is not intended as legal advice.