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Legal Q & A

Matthew Weng
Matthew Weng
League Staff Attorney

Conflicts of Interest and Personal E-Mail

Q I am an elected official who recently took office. I am very active in my community and I own my own business. What information can you give on conflicts of interest and how to avoid them?

A There are essentially two types of conflicts of interest that affect local government officials: financial and personal.

The first type of conflict involves pecuniary interests. As the name implies, this conflict arises when an official has a financial interest in a matter that is currently under consideration by the body that he or she was elected to. The most obvious example is when a councilmember votes to award a municipal contract to a business that he or she maintains a financial interest in. For example, it would be improper for a councilmember to vote to award a contract for paving roads to the paving company they own. This is the most obvious type of pecuniary conflict.

There are, however, other, more subtle types of pecuniary conflicts. For example, a councilmember who owns the only liquor store in town should not vote on whether to sell another liquor license. The councilmember has a direct financial interest in preventing competition, and a vote against awarding the license would likely be seen as a conflict. The Appellate Division, in McNamara v. Borough of Saddle River, 64 N.J. Super. 426 (App. Div. 1960), has stated that the official’s motives are immaterial; for example, the above official could honestly and truly believe that another liquor store would be detrimental to the character of the town. Regardless, the purpose of the rule is “prophylactic,” and the councilmember’s interest in the outcome of the vote would disqualify him from participation.

Neither may an elected official possess a personal interest in an issue under consideration. For example, a councilmember may not vote to give a position, even an unpaid one, to a blood relative or close friend. Even though the councilmember would receive no financial benefit from his or her vote, the fact that the vote has an effect on someone close to the councilmember makes it improper. A councilmember should also take no part in an issue that would benefit any sort of group or organization of which he or she is a member. The most common example is a member of a church or synagogue voting on an issue that directly impacts their religious institution. Such a vote is improper.

The best way to avoid such conflicts is to gather as much information as possible about the different issues before you. If in any way it would even appear that a conflict existed or may exist, recuse yourself and take no further part in any deliberations or votes on the subject.

Q I am an elected public official who is quite frequently away from my home computer. I often end up doing public business on my personal email address through my smartphone. What Open Public Records Act implications does this have? Can I delete emails that seem unimportant, or that no one would likely ask for?

A The best advice on this issue cannot be stressed enough: the best way to avoid any potential issues is to not use personal email, ever, to conduct town business. Personal email used to conduct town business may be subject to Open Public Records Act requests, because it is the subject of the email, and not its origin, that makes it a public record.

If personal email is used, it must be stored and available even if it seems unimportant. You should not delete any emails until they are stored. The best way to store them would be to print out copies and keep them on file at the town hall. Periodically, the Division of Archives Management can examine the emails and confirm that printed copies were made and are available to those seeking them through an Open Public Records Act request. Once this is done, you can delete the email from your account, but only after the Division of Archives Management has confirmed that a hard copy is on file. Your municipal clerk should have the necessary DARM forms.

The most frequent issue that arises with someone who uses a personal email to conduct public business is an Open Public Records Act request that is challenged. If the requester challenges the sufficiency of what was provided, it may involve combing through personal emails which may contain actually personal or even embarrassing things, which could have the potential to be made public.

Again, it’s best not to use personal email to conduct town business at all.

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

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