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Legal Q & A



Deborah M. Kole, League Staff Attorney
Deborah M. Kole
League Staff Attorney

Alumnae Conflicts and
   Progressive Discipline

Q The college in our municipality just requested and obtained a number of variances and site plan approval from the board of adjustment for a new library building and parking lot on campus.  We live near the site of this planned new building, and are very unhappy about the transformation of the park-like property that now abuts our property into a building teeming with students and traffic. We feel that favoritism may have been shown to the college because several of the members of the board of adjustment are alumnae of the college.  One of these alumnae, furthermore, has a child who graduated a few years ago from the college, and even received an academic scholarship from the college worth several thousand dollars. Shouldn’t these individuals have disqualified themselves from voting on this matter because of a conflict of interest under the local ethics law? Isn’t the granting of the necessary variances invalid because of this ethical lapse?

A These facts in themselves are not likely to invalidate the decision of the board of adjustment or be seen as an ethical violation under the holding in the 2007 Appellate Division case of Hughes v. Monmouth University, Docket No. A-2227-06T2, which dealt with a similar situation. The Court quoted the applicable provision under the Local Government Ethics Law, N.J.S.A. 40A:9-22.5(d), which precludes a local government official from acting in a matter in which the official (or his or her immediate family member or business associate) “has a direct or indirect financial involvement that might reasonably be expected to impair his objectivity or independence of judgment.” 

The court stated that being an alumna of a college is clearly an “involvement” with the institution.  However, said the court, in the case before it “…where the board members obtained their degrees many years ago, were not active alumni members, and did not substantially contribute to the University or otherwise evidence any special attachment to the school, no reasonable person could conclude that such involvement…” would have improperly influenced their actions on the board of adjustment.  Furthermore, the past award by the university of a merit-based tuition credit to a board member’s child while that child was a student there was “…available to all similarly situated students” and therefore did not disqualify the parent/board member from voting. The court also noted that none of the board members or any member of their immediate families was currently a student at the university.

Therefore, unless one or more board members are more deeply involved with the college than your question would suggest, the decision of the board of adjustment is likely to survive challenge on this basis.

 

 

Q A friend of mine, a police officer, was recently dismissed from the force for sleeping on the job on several occasions. He had been warned about this behavior once before and had been disciplined previously because of violating department policy concerning sick leave and vacation time, but not for anything serious.  I thought the principle of “progressive discipline” meant that a police officer could not be dismissed the first time he was found guilty of an offense. Is this correct?

A It is not necessarily correct according to the New Jersey Supreme Court case of John Carter v. Bordentown, Docket No. A-16-06, decided June 20, 2007. In that case, the Appellate Division found that the dismissal of a police officer without the use of progressive discipline was invalid. The Supreme Court reversed, finding that the principle of progressive discipline was not a mandate of law and was not required in all cases. In this case, credible evidence was presented before the Merit Board that the dismissed officer, on at least three separate occasions, had pulled his car to the side of the road and slept for as long as two hours at a time while on duty, had failed to attend to police duty during these periods of time, and did not respond promptly to a fellow officer’s call for assistance as a result. The Board found that the dismissal was not arbitrary or capricious under these facts, and the Supreme Court refused to disturb this decision.

 The Court said that some offenses can be serious enough to warrant dismissal even when an officer has a largely unblemished previous record.  However, dismissal is not always the appropriate penalty for an officer who sleeps on the job.  All of the facts and circumstances of each case must be taken into consideration

This column is for informational purposes only, and is not intended as legal advice.

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