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Legal Q & A



Matthew Weng
Matthew Weng
League Staff Attorney

Nepotism and Officers or Appointees
Serving Beyond Their Terms

Q I am trying to gain some insight into conflicts of interest as it pertains to employment of family members of municipal officials. One of our employees is the nephew of a sitting council member. The Council, upon the recommendation of the Personnel Committee, votes on personnel decisions, with respect to salary increases and position increases. Is there a conflict of interest if the council member votes or participates in debates on issues regarding this staff member? Also, are there any statutes governing nepotism that would be pertinent to this situation?

A The Local Government Ethics Law is concerned with conflicts involving immediate family members. The statute defines immediate family as a spouse or dependant residing in the same household. In some circumstances, other individuals may be the source of a conflicting relationship; for example, an unmarried couple living together for several years who jointly own a home may be the source of a conflict.

Not every familial relationship constitutes a conflict requiring recusal. “[T]he pivotal issue is usually not the degree of relationship to the board member, but, rather, the type of association the relative had with the interested organization and the amount of interest the relative had in the official's actions.” For example, the fact that two years ago the father of a zoning board member worked at a law firm representing an applicant is not a conflict requiring recusal.

The Local Finance Board at the Division of Local Government Services enforces the Local Government Ethics Law (unless you have created a local ethics board) and may be able to offer you an advisory opinion as to your specific situation.

There are no state statutes that deal with nepotism at the municipal level other than the conflict of interest rules in the Local Government Ethics Law. A municipality is free to enact an ordinance that prohibits nepotism if they feel that is an issue in town.
 

Q Have you ever come across any cases where the “advise and consent” of appointees to a board or commission, by a governing body, was not provided even though bylaws or a local statute requires it?

Upon review of a bylaws for a few of our boards and commission we found that several have term limits for members, and extensions of those terms require “advice and consent” of the council. This provision has not been enforced. In one case members have served several years beyond their terms and carried out business of the board.

Are these appointees legitimate board members? The concern was whether a challenge could be made about sitting board members or even about business decisions made by said members?

A If advice and consent is required, it should be done from here on out.

Most language regarding terms for officers or appointees indicates that they shall serve until their successor is nominated and qualified. If no successor has ever been named they are likely still lawfully holding those positions.

Even if that language is not present, as far as the current and past board members and their decisions, I believe they would be considered de facto members and their decisions valid. See this language from Matter of Fichner, 144 N.J. 459, 468 (1996):

The essence of the de facto officer doctrine is that one who claims to be a public officer while in possession of an office and ostensibly exercising its functions lawfully and with the acquiescence of the public is a de facto officer whose lawful acts, so far as the rights of others are concerned, are, if done within the scope and by the apparent authority of the office, as valid and as binding as if the officer were legally qualified for the office and in full possession of it Again, because this is a Law Division case it does not have statewide precedent. There is, as far as I know, no hard and fast exception to this law for elected officials displaced by emergencies.

 

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

First published in New Jersey Municipalities, Volume 90, Number 5, May 2013

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