NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1019-18T4
IN THE MATTER OF APPEAL OF LOCAL ETHICS BOARD DECISIONS. __________________________
Argued telephonically May 26, 2020 – Decided July 21, 2020
Before Judges Messano and Ostrer.
On appeal from the New Jersey Department of Community Affairs.
Roger Elliot Koch argued the cause for appellants Roger Koch, Ida Ochoteco, Howard Greenberg, Carl Cuchiara, Tracy Goldberg, Jeremy Perlmutter, Amy Levine, John Beggiato, Robert Easton, and Ann Iannone.
Philip Gary George argued the cause for respondent Hillsborough Township Ethical Standards Board (Eric M. Bernstein & Associates, LLC, attorneys; Eric Martin Bernstein, of counsel and on the brief; Philip Gary George, on the brief).
Beau Charles Wilson, Deputy Attorney General, argued the cause for respondent Local Finance Board (Gurbir S. Grewal, Attorney General, attorney; Donna Sue Arons, Assistant Attorney General, of counsel; Beau Charles Wilson, on the brief).
PER CURIAM
Appellants, residents of Hillsborough Township, filed two complaints with
the Hillsborough Ethical Standards Board (the Board), a municipal ethics board
established pursuant to the Local Government Ethics Law (LGEL), N.J.S.A.
40A:9-22.1 to -22.25. One complaint alleged violations of the LGEL by
Township Committeewoman, Gloria McCauley, and the Township administrator,
Anthony Ferrara; a second alleged violations by McCauley and the Township
clerk, Pamela Borek. The gist of the complaints was that as a member of the
township's governing body, McCauley voted to approve salary increases for
Ferrara and Borek, and, several months later, both listed their homes for sale with
McCauley as the listing real estate agent.
The Board held a public meeting on both complaints. As to the complaint
involving the administrator, the Board heard from Hillsborough's mayor and
counsel for the appellants, himself a signatory of the complaint. A May 23, 2017
resolution of the township committee was marked into evidence. In response to
questions posed by Board members, Borek, who also served as clerk of the Board,
explained that the "resolution establishing the annual salaries . . . [was] for all
those employees not covered by collective bargaining agreements." She further
A-1019-18T4 2 explained that the budget planning process began in "the first quarter[,]" and the
"resolution coincided with the budget adoption[.]" The salaries of more than
thirty individual employees named in the resolution, including Ferrara and
Borek, were set and made effective January 1, 2017. The complainants
introduced the real estate listing for the administrator's home. After going into
executive session, the Board emerged and approved the December 9, 2017
resolution, which determined the complaint "to be without merit, and . . .
therefore dismissed." 1
1 The procedure complies with the LGEL regarding the conduct of hearings before a municipal ethics board. Pursuant to N.J.S.A. 40A:9-22.24, a municipal ethics board must acknowledge the receipt of a complaint made against any local government officer or employee "and initiate an investigation concerning the facts and circumstances . . . in the complaint." If the board determines it lacks jurisdiction, or the complaint is "frivolous or without any reasonable factual basis," it must reduce its "conclusion to writing and . . . transmit a copy . . . to the complainant and to the local government officer or employee" involved. Ibid. Otherwise, the board must notify the affected officer or employee and provide him or her with "the opportunity to present the . . . board with any statement or information concerning the complaint which he [or she] wishes." Ibid. If the board "determines that a reasonable doubt exists as to whether" the officer or employee "is in conflict with the municipal code of ethics or any financial disclosure requirements," it shall conduct a hearing in accordance with N.J.S.A. 40A:9-22.12. Ibid. That section of the LGEL, in turn, requires a hearing "in conformity with the rules and procedures, insofar as they may be applicable, provided for hearings by a State agency in contested cases under the 'Administrative Procedures Act[.]'" N.J.S.A. 40A:9-22.12
A-1019-18T4 3 Counsel for the complainants served written notice withdrawing the second
complaint against McCauley and Borek prior to the scheduled December 23,
2017 Board meeting. Nevertheless, the Board convened, having served public
notice of the meeting and individual notice on both Borek and McCauley, and
having decided, on the advice of its counsel, that it was duty bound to "make a
determination on the face of the complaint as to whether any further proceedings
should take place." 2
Once again, the mayor addressed the Board, as did a Township
committeeman. The mayor referenced "the annual salary resolution" discussed
during the prior hearing, and the committeemen described the salary and budget
process.3 He explained that the committee considers the salaries of municipal
employees "in comparison to some of their local peers." The Board approved a
similar resolution dismissing the complaint because it lacked merit.
2 Borek did not serve as clerk to the Board during these proceedings. 3 Reference is made in the transcript to two resolutions. The appellate record includes a copy of the May resolution listing the employees and their proposed salaries; a copy of the May resolution adopting the entire budget is also included.
A-1019-18T4 4 Complainants appealed both decisions to the Local Finance Board (LFB).4
See N.J.S.A. 40A:9-22.7(c) (providing that the LFB shall "hear and determine
any appeal of a decision made by a county or municipal ethics board"). The
LFB's September 7, 2018 decision stated that it had reviewed the Board's
"complete investigatory and hearing files[,]" and, in accordance with the LGEL's
implementing regulations, "determined these . . . sufficiently complete to permit
review without a separate evidentiary hearing[.]"
The LFB determined that Ferrara's and Borek's compensation was fixed by
the township's resolution and governed by ordinance. It also found that the
township "conducts annual salary evaluations for employees[] and establishes
and fixes wages based upon existing salaries and comparable salaries around the
area." The LFB determined Ferrara was "the lowest paid administrator in the
area, despite serving in multiple capacities." 5 Critically, the LFB concluded:
The contested employee raises were given pursuant to the municipal resolution establishing the annual salary and wages of a list of municipal employees and adopted by the Township Committee, effective January 1, 2017.
4 We have not been provided with the actual appeals filed with the LFB. 5 Neither transcript of proceedings before the Board contained testimony that supported this factual finding. However, we do not have copies of all that was furnished to the LFB or all items contained in the LFB's statement of items comprising the record before the agency.
A-1019-18T4 5 [The] raises were subsequently incorporated into the municipal budget which [was] introduced and adopted by the Township Committee on May 23, 2017. McCauley was not retained for home sale listing agreements until on or about August 2017 for Ferr[a]ra and on August 11, 2017 for Borek.
The LFB also concluded that McCauley "did not secure unwarranted
privileges by representing municipal employees in a one-time real estate
transaction"; nor did Ferrara and Borek "secure unwarranted privileges by
agreeing to a one-time real estate transaction with a[] . . . committee member
subsequent to receiving routine annual salary increases as established by
municipal ordinance adopted by the entire Township Committee." The LFB
determined "an individual real estate transaction does not rise to the level of a
matter expected to impair one's objectivity or independence of judgment for
either side of the transaction."
The LFB also found there was no evidence of "a quid-pro-quo
transaction." Instead, the LFB found "the substantial passage of time between
the two events, coupled with the lack of evidence supporting any allegation of
wrongdoing, supports the determination that they were not reciprocal events."
The LFB concluded, after "having reviewed all relevant aspects of the appeals,
and finding no credible evidence sufficient to support a finding of violation " of
A-1019-18T4 6 the LGEL, "that [the municipal officers] did not act where they had disqualifying
financial or personal involvement."
Appellant's counsel filed an objection to the LFB's decision, noting the
lack of any factual findings in the Board's two resolutions, the lack of any
testimony before the Board, except for "fellow members of the accused
Township Committeewoman[,]" and challenged, as he did before the Board, the
involvement of the Township attorney as counsel to the Board.
While not contesting the LFB's findings regarding the budget process, or
that Ferrara was the lowest paid administrator in the area, appellant's counsel
argued these facts were "immaterial[,]" because the budget process "and the
salary reviews are all subject to the influence of the member of the Township
Committee who created and voted upon the ordinance and reviewed the salary
data, not some immutable process beyond the influence of . . . McCauley."
Counsel argued appellants never asserted there was a "quid pro quo or reciprocal
exchange between the accused officials[,]" concepts which "ha[d] nothing to do
with the ethics violations alleged[.]" He requested the matter be transferred to
the Office of Administrative Law (OAL) for a formal hearing.
A-1019-18T4 7 The LFB denied the request. Again citing the LGEL's implementing
regulations, the LFB "deemed the record [before the Board] as sufficiently
complete and rendered a [f]inal [a]gency [d]ecision solely on the record below."
Appellants filed this appeal challenging the LFB's decision. The LFB
moved to dismiss the appeal, and the Board moved for summary disposition;
both argued that appellants lacked standing. Our colleagues denied the motions.
As best we can discern, appellants argue the undisputed facts demonstrate
that McCauley, Ferrara and Borek violated N.J.S.A. 40A:9-22.5(a), (c), (d) and
(e).6 Appellants' essential claim is that the LFB erred as a matter of law, because
the LGEL does not require proof of a quid pro quo agreement, or that a public
official actually received or bestowed a disqualifying benefit upon another.
Rather, as the Court has said, only that "the public perceives a conflict between
the private interests and the public duties of a government officer or
employee[.]" Grabowsky v. Twp of Montclair, 221 N.J. 536, 553 (2015)
(quoting N.J.S.A. 40A:9-22.2 (c)).
6 The complaints before the Board also alleged violations of subsection (f). However, appellants make no substantive argument regarding this subsection in their brief. "An issue not briefed on appeal is deemed waived." Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011). A-1019-18T4 8 The LFB and the Board make two arguments in opposition. First, they
contend appellants failed to demonstrate the final agency decision was arbitrary,
capricious and unreasonable, or lacked fair support in the record. Second, both
reassert the argument that appellants lack standing to challenge the LFB's
decision. In their reply brief, appellants counter the lack of standing argument.
After considering the contentions raised by all parties, we conclude that
appellants have standing to appeal from the LFB's final agency decision.
However, we also conclude the LFB's decision was not a mistaken application
of the law to the essentially undisputed facts presented, and, therefore, we
affirm.
I.
As a general rule, "appeals may be taken to the Appellate Division as of
right . . . to review final decisions or actions of any state administrative agency
or officer[.]" R. 2:2-3(a)(2). "Judicial review of administrative agency action
is a matter of constitutional right in New Jersey." In re Proposed Quest Acad.
Charter Sch., 216 N.J. 370, 383 (2013) (citing N.J. Const. art. VI, § 5, para. 4).
Pursuant to the LGEL, the LFB has exclusive jurisdiction to "govern and
guide the conduct of local government officers or employees . . . who are not
otherwise regulated by a county or municipal code of ethics[.]" N.J.S.A. 40A:9-
A-1019-18T4 9 22.4. Complaints against local government employees and officers not
regulated by a county or municipal code of ethics are adjudicated by the LFB
under its exclusive jurisdiction. N.J.S.A. 40A:9-22.9. A final decision of the
LFB as to these complaints "may be appealed in the same manner as any other
final State agency decision." Ibid.; see, e.g., Mondsini v. Local Fin. Bd., 458
N.J. Super. 290 (App. Div. 2019) (reviewing decision of LFB regarding alleged
violation of LGEL by executive director of regional sewerage authority).
The LFB also has exclusive jurisdiction over an appeal from the decision
of a municipal ethics board. N.J.S.A. 40A:9-22.7(c). Pursuant to the LGEL's
implementing regulations, both the "complainant or the local government
employee or officer, who is the subject of the complaint," may appeal from the
decision of a municipal board. N.J.A.C. 5:35-1.4(a) (emphasis added). Upon
receipt of the written complaint by the LFB, the municipal board "shall transmit
to the [LFB] the board's complete file in the matter, which shall include any
transcripts or tapes of the hearing, and a copy of the municipal or county code
of ethics." N.J.A.C. 5:35-1.4(c). The LFB may transmit the appeal to the OAL,
or, "[i]f the record below is deemed sufficiently complete . . . [it] may consider
the matter solely on the record below." N.J.A.C. 5:35-1.4(d) and (e). The LFB
A-1019-18T4 10 must provide the complainant, the local government employee or officer and the
municipal ethics board with its final decision. N.J.A.C. 5:35-1.4(g).
Unlike decisions from complaints brought directly to the LFB because the
"local government officer[] or employee[] . . . [is] not . . . regulated by a county
or municipal code of ethics[,]" N.J.S.A. 40A:9-22.4, which are appealable as of
right, N.J.S.A. 40A:9-22.9, the LGEL is silent as to whether the LFB's final
decision from an appeal of a municipal ethics board's decision is similarly
appealable as of right. During argument before us, counsel for the LFB
conceded that a local government officer or employee found by the LFB on
appeal from a municipal board's decision to have violated the LGEL would have
standing to appeal to this court, because he or she would have been aggrieved
by the LFB's decision. See, e.g., Price v. Hudson Heights Dev., LLC, 417 N.J.
Super. 462, 466 (App. Div. 2011) (collecting cases supporting the principle that
only one aggrieved by the court's judgment may appeal). According to the LFB
and the Board, appellants, indeed all unsuccessful complainants before the LFB,
may not appeal because they are not aggrieved by the LFB's final agency
decision. We disagree.
"New Jersey takes 'a liberal approach to standing to seek review of
administrative actions.'" In re Issuance of Access Conforming Lot Permit No.
A-1019-18T4 11 A-17-N-N040-2007, 417 N.J. Super. 115, 126 (App. Div. 2010) (quoting In re
Camden Cty., 170 N.J. 439, 448 (2002)). "[S]tanding to seek judicial review of
an administrative agency's final action or decision is available to the direct
parties to that administrative action as well as any[]one who is affected or
aggrieved in fact by that decision." N.J. Election Law Enf't Comm'n v.
DiVincenzo, 451 N.J. Super. 554, 563–64 (App. Div. 2017) (emphasis added)
(quoting In re Camden Cty., 170 N.J. at 446). Standing may even be extended
to third-parties if they "present a sufficient stake in the outcome of the litigation,
a real adverseness with respect to the subject matter, and a substantial likelihood
that the party will suffer harm in the event of an unfavorable decision." In re
Camden Cty., 170 N.J. at 449 (citing N.J. State Chamber of Commerce v. N.J.
Election Law Enf't Comm'n, 82 N.J. 57, 67–69 (1980)).
The Board and the LFB rely upon one of our unpublished decisions, which
is not binding precedent. See Rule 1:36-3.7 They also rely upon our decision in
Marques v. N.J. State Bd. of Med. Exam’rs, 264 N.J. Super. 416 (App. Div.
1993). That case is factually and legally distinguishable.
7 It is also unclear from our unpublished opinion whether the complainant- appellant in that case was a resident of the involved municipality. A-1019-18T4 12 In Marques, after the appellant made a complaint to the State Board of
Medical Examiners against two doctors, and the Board's investigation found no
reason to take any action, he filed an appeal. Id. at 417–18. We noted the
Board's authority to investigate such complaints was "entirely discretionary[,]"
and there was "no statutory or regulatory requirement which either mandates an
investigation be conducted or an investigatory record be made, maintained or
kept." Id. at 418 (quoting Beck v. Bluestein, 194 N.J. Super. 247, 258 (App.
Div. 1984)). While Marques' "right to bring his complaint to the attention of the
Board [was] clear[,]" it did "not carry with it a right to judicial review of the
Board's response[.]" Ibid. We said, "Appellant [was] neither a party to any
proceeding before the Board nor an individual who has been affected adversely
by its action (or non-action)." Ibid. (emphasis added). We dismissed the appeal.
Ibid.
As the Court said long ago in Elizabeth Fed. Sav. & Loan Ass'n v. Howell,
[The] right to seek judicial review of administrative decisions inheres not only in those who are direct parties to the initial proceedings before an administrative agency . . . but also belongs to all persons who are directly affected by and aggrieved as a result of the particular action sought to be brought before the courts for review.
[24 N.J. 488, 499–500 (1957) (emphasis added).]
A-1019-18T4 13 Here, appellants been parties at every stage of the proceedings before the
Board and the LFB, and they are residents of the Township. As such, they have
a sufficient stake in the outcome of their complaints, and, hence, standing to
challenge the LFB's decision. Unlike the statutory and regulatory scheme at
play in Marques, the Legislature expressly declared it was enacting the LGEL
in recognition of the government's "duty . . . to provide their citizens with
standards by which they may determine whether public duties are being
faithfully performed," and "to provide a method of assuring that standards of
ethical conduct . . . for local government officers and employees shall be clear,
consistent, uniform in their application, and enforceable on a Statewide basis[.]"
N.J.S.A. 40A:9-22.2 (d) and (e) (emphasis added). The obvious public interest
that undergirds the LGEL only enhances appellants' standing to challenge the
LFB's final decision. See, e.g., In re Grant of Charter to Merit Preparatory
Charter Sch. of Newark, 435 N.J. Super. 273, 279 (App. Div. 2014) ("[W]hen
an issue involves a 'great public interest, any slight additional private interest
will be sufficient to afford standing.'" (quoting Salorio v. Glaser, 82 N.J. 482,
491 (1980))).
We conclude appellants have standing to file this appeal challenging the
LFB's final agency decision. We now consider the merits of the appeal.
A-1019-18T4 14 II.
Well known standards guide our review. "An agency's quasi-judicial
decision is not disturbed on appellate review 'unless there is a clear showing that
it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the
record.'" US Masters Residential Prop. (USA) Fund v. N.J. Dep't of Envtl. Prot.
-Fin. Servs., 239 N.J. 145, 160 (2019) (quoting Allstars Auto Grp, Inc. v. N.J.
Motor Vehicle Comm'n, 234 N.J. 150, 157 (2018)). "In undertaking this review,
deference is given to the special competence and expertise of an administrative
agency, such as the [LFB], with regard to technical matters with which that
agency is concerned." Abraham v. Twp of Teaneck Ethics Bd., 349 N.J. Super.
374, 379 (App. Div. 2002) (citing N. J. Bell Tel. Co. v. State Dep't of Pub. Utils.,
Bd. of Pub. Util. Comm'rs, 162 N.J. Super. 60, 77 (App. Div. 1978)).
"Moreover, '[a] reviewing court "may not substitute its own judgment for the
agency's, even though the court might have reached a different result."'" Allstars
Auto Grp., 234 N.J. at 158 (alteration in original) (quoting In re Stallworth, 208
N.J. 182, 194 (2011)).
Appellants argue that McCauley, Ferrara and Borek violated the following
provisions of the LGEL:
a. No local government officer or employee or member of his immediate family shall have an interest in a
A-1019-18T4 15 business organization or engage in any business, transaction, or professional activity, which is in substantial conflict with the proper discharge of his duties in the public interest;
....
c. No local government officer or employee shall use or attempt to use his official position to secure unwarranted privileges or advantages for himself or others;
d. 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;
e. No local government officer or employee shall undertake any employment or service, whether compensated or not, which might reasonably be expected to prejudice his independence of judgment in the exercise of his official duties[.]
[N.J.S.A. 40A:9-22.5 (a), (c), (d) and (e).]
These provisions are part of the "statutory code of ethics" enacted by the
Legislature to further the LGEL's purposes. Mondsini, 458 N.J. Super. at 299
(quoting Dep't of Cmty. Affairs, Local Fin. Bd. v. Cook, 282 N.J. Super. 207,
209 (App. Div. 1995)).
A-1019-18T4 16 We have acknowledged that as to subsections (d) and (e), the Legislature
was clearly focused on "the importance of public perception" of a local official's
conflicted loyalties rather than whether an actual conflict of interest existed. Id.
at 300. However, contrary to appellants' argument, as to subsection (c), the
public official must have acted with the specific intent to secure an unwarranted
privilege for himself or another. Id. at 305. Although for reasons that follow
we need not define the exact contours of prohibited conduct defined by
subsection (a), by its express terms, a public official violates the provision only
if he or she has a business interest in "substantial conflict with the proper
discharge of his (or her) duties in the public interest[.]" N.J.S.A. 40A:9-22.5(a).
In other words, an actual, not perceived, conflict.
"[A] longstanding and essential premise of our jurisprudence that predates
enactment of the LGEL, [is] that in the area of ethical concerns, evaluation of
any public official's actions 'must be carefully evaluated based on the
circumstances of the specific case.'" Mondsini, 458 N.J. Super. at 307 (quoting
Grabowsky, 221 N.J. at 554). Here, the only official actions by a local
government official or employee that appellants challenge are those McCauley
engaged in as part of the budget process during the early months of 2017,
culminating in the May 2017 committee resolutions adopting the actual salary
A-1019-18T4 17 increases for every non-union municipal employee, including Ferrara and Borek,
and the contemporaneous adoption of the municipal budget. Those actions
occurred months before Ferrara and Borek decided to list their homes for sale.
Appellants have repeatedly stressed that the LFB misconstrued the law
and that they never asserted the listings were a quid pro quo for McCauley's
votes enacting the raises. It would seem, therefore, that at the time of
McCauley's official actions, appellants acknowledge her real estate practice was
not implicated. In short, there was no evidence McCauley violated subsection
(a) or (c) of the statute, because McCauley's real estate practice did not present
a substantial conflict with her official duties at the time, nor did she act with the
specific intent to bestow an unwarranted benefit upon herself or Ferrara or
Borek. As the Court recognized in the pre-LGEL case of Wyzykowski v. Rizas,
"[t]here cannot be a conflict of interest where there do not exist, realistically,
contradictory desires tugging the official in opposite directions.'" 132 N.J. 509,
524 (1993) (alteration in original) (quoting La Rue v. Twp. of E. Brunswick, 68
N.J. Super. 435, 448 (App. Div. 1961)).
As to a possible perceived conflict of interest, N.J.S.A. 40A:9-22.5(d) and
(e), "[t]he question will always be whether the circumstances could reasonably
be interpreted to show that they had the likely capacity to tempt the official to
A-1019-18T4 18 depart from his sworn public duty." Id. at 523 (quoting Van Itallie v. Borough
of Franklin Lakes, 28 N.J. 258, 268 (1958)). We agree with the LFB that
Ferrara's and Borek's decision to list their homes for sale with McCauley months
after the budget vote could not reasonably be perceived as having "tempted" her
to vote for their raises. In considering actual and perceived conflicts regarding
public officers and employees, "the Court made clear: 'The [LGEL] must be
applied with caution, as "[l]ocal governments would be seriously handicapped
if every possible interest, no matter how remote and speculative, would serve as
a disqualification of an official."'" Mondsini, 458 N.J. Super. at 307 (alterations
in original) (quoting Grabowsky, 221 N.J. at 554).
Affirmed.
A-1019-18T4 19