Q I recently heard a news story about a case out West where ethics laws were invalidated because they interfered with the elected officials’ constitutional rights. Does this apply to the Local Government Ethics Law in New Jersey? What could be the impact of a Supreme Court decision that upholds the lower court?
A The case you’re referring to comes from Nevada. Michael Carrigan is a council member from the city of Sparks, which is near Reno. In 2006, the Sparks city council was voting on whether to approve Lazy 8, a new casino. It was controversial in the community. Council member Carrigan voted to approve the project.
The ethical issue involved became known shortly before Carrigan voted yes. It seems that the developer of the proposed Lazy 8 casino employed Carlos Vasquez, who was a friend of Carrigan and had been his campaign manager for the previous three election cycles.
Nevada’s version of the Local Government Ethics Law requires local elected officials to recuse themselves when their vote might affect a close relative, employer, business associate, or someone with a similar relationship. This is substancially similar to N.J.S.A. 40A:9-22.5(d), which 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.”
After asking for advice from the city attorney, Carrigan decided to make his relationship public but to still vote on the project. A group of citizens who opposed the development of the casino notified the Nevada Commission on Ethics, which is similar to our Local Finance Board. The Nevada Commission on Ethics ruled that Carrigan violated the ethics law, but did not impose any fine or other punishment because they found the violation to be not willful.
Carrigan challenged this decision in the Nevada state courts, going all the way to the Nevada state Supreme Court. There, the Supreme Court issued a novel ruling essentially invalidating the recusal requirements of the Nevada ethics law. They reached this conclusion by finding that votes by local elected officials are a form of speech and expression protected by the First Amendment to the United States Constitution, and that the restraints imposed by the Ethics Law were unconstitutional.
The Supreme Court held oral arguments on Wednesday, April 27 2011. A decision is not likely to come for several months. However, should the Court decide to uphold the decision by the Nevada Supreme Court, it would have a dramatic effect on local and state ethics laws throughout the country. The League of Municipalities plans to closely monitor this case and will keep our towns updated on any further developments
Q We have a large university in our town that is looking to expand. The University asked the zoning board
to grant variances to allow them to construct several
different buildings and facilities, including dorms, classrooms, and a tennis court. However, several members of the zoning board graduated from the University. Is this a conflict of interest, and should those members have recused themselves?
A Unfortunately I have to give every lawyer’s favorite answer to this question: it depends.
A similar situation arose in Hughes v. Monmouth University, a 2007 Appellate Division case. The University was looking to expand, and a zoning board that contained alumni of the University granted several variances. Opponents of the project contended that the alumni had a conflict of interest and should have recused themselves.
The Court found that alumni do indeed have some interest in their former University, but as with any ethics issue, each case and its facts must be analyzed independently. In this particular case, the Court found that “here, 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 tempted them ‘to depart from [their] sworn public duty.’”
Therefore, it depends on the actual level of involvement of the alumnus. Where an alumnus attended a University several years ago, and that is the extent of their involvement, it is likely there is no conflict. There is no bright line rule for the level of involve where a conflict comes into play, and must be looked at in a fact specific manner
This column is for informational purposes only, and is not intended as legal advice.
First published in New Jersey
Volume 88, Number 6, June 2011