DASTI, MURPHY, McGUCKIN, ULAKY, KOUTSOURIS & CONNORS A Professional Corporation Fed I.D. # GEORGE F. MURPHY, JR.

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1 DASTI, MURPHY, McGUCKIN, ULAKY, KOUTSOURIS & CONNORS A Professional Corporation Fed I.D. # GEORGE F. MURPHY, JR. COUNSELLORS AT LAW JERRY J. DASTI THE CLOCK TOWER BUILDING TELEPHONE NUMBERS GREGORY P. McGUCKIN 620 WEST LACEY ROAD (609) ROBERT E. ULAKY > POST OFFICE BOX 1057 (609) CHRISTOPHER J. CONNORS FORKED RIVER, NEW JERSEY (732) CHRISTOPHER K. KOUTSOURIS (732) CHRISTOPHER J. DASTI FORKEDRIVER@DMMLAWFIRM.COM (609) Of Counsel WRITER S FACSIMILE NUMBERS ANGELA M. KOUTSOURIS (609) (732) CERTIFIED CIVIL TRIAL ATTY Real Estate: (609) MEMBER, NATIONAL ACADEMY OF ELDER LAW ATTORNEYS, INC MEMBER NJ AND FLA BAR PLEASE REFER TO: > MEMBER NJ AND PA BAR MEMBER NJ AND NY BAR 50 Railroad Avenue Waretown, NJ Dear Ms. Wetter: You have requested a legal opinion from our office on whether you may participate and/or vote on the proposed amendments to the Township s Noise Ordinance. As you are aware, this amendment was requested by, and is supported by, the Greenbriar Oceanaire Homeowners Association, an organization in which you are a member. It is also my understanding that at least one resident of Ocean Township, who is opposed to the ordinance amendment, has already questioned whether you are in conflict in voting on this matter. You have advised me that you are in support of the proposed ordinance and are anxious to vote in favor of same, however, for the reasons set forth below, we again advise you that you are required to recuse yourself from participating in or voting on this Ordinance as a member of the Township Committee. As a matter of law, public officials of our State assume the obligation to serve the public with the highest fidelity, exercise their discretion reasonably, and display good faith, honesty, and integrity. State v. Schenkolewski, 301 N.J. Super. 115, (App. Div.), certif. denied, 151 N.J. 77 (1997). Conflicts of interest arise when a public official has an interest not shared in common with the other members of the public. Wyzykowski v. Rizas, 132 N.J. 509, 524 (1993). Through both statutory and decisional law, our State has long recognized the public's right to expect that its representatives, whether appointed or elected, must discharge their duties without any actual or perceived personal or pecuniary interests that might cloud their judgment. Meyer v. MW Red Bank, LLC, 401 N.J. Super. 482, 490 (App. Div. 2008) (citing Wyzykowski, supra, 132 N.J. at ). The Local Government Ethics Law s, N.J.S.A. 40A: et seq. (hereinafter Ethics Law ), primary purpose is to ensure that disinterested services are provided by public officials in their communications and that they refrain from self-dealing.

2 Page Two -2- Thompson v. City of Atlantic City, 190 N.J. 359, 364 (2007). The secondary purpose of the Ethics Law is to promote integrity of government operations. Id. In the Ethics Law, the Legislature clearly indicated that [w]henever the public perceives a conflict between the private interests and the public duties of a government officer or employee, that confidence is imperiled. N.J.S.A. 40A:9-22.2(c). Our New Jersey Supreme Court has held that there are four instances where a public official must disqualify himself: (1) Direct pecuniary interests, when an official votes on a matter benefiting the official's own property or affording a direct financial gain; (2) Indirect pecuniary interests, when an official votes on a matter that financially benefits one closely tied to the official, such as an employer, or family member; (3) Direct personal interest, when an official votes on a matter that benefits a blood relative or close friend in a non-financial way, but a matter of great importance, as in the case of a councilman's mother being in the nursing home subject to the zoning issue; and (4) Indirect Personal Interest, when an official votes on a matter in which an individual's judgment may be affected because of membership in some organization and a desire to help that organization further its policies. [Wyzykowski, supra, 132 N.J. at (citing Michael A. Pane, Conflict of Interest: Sometimes a Confusing Maze, Part II, New Jersey Municipalities, at 8, 9 (March 1980)).] In the instant matter, it is the opinion of this office, that your interest falls within the indirect personal interest classification. This category involves examples in which an individual's judgment may be affected because of membership in some other organization and a desire to help the organization further its policies. Conflict of interests is a situation in which a public official, in addition to the first duty of loyalty to the entire public, has a second interest which is incompatible with the faithful discharge of his official duties. In other words, the official has a second unique interest different from other officeholders which sets that officeholder apart. The result is that the officeholder must necessarily be torn between fulfilling the highest duty toward the public or the second duty to the conflicting interest: A public officer has the duty of serving the public with undivided loyalty, uninfluenced in his official actions by any private interest or motive whatsoever. [T]he interest which disqualifies need not be a direct, pecuniary one: it may be indirect. Basically, the question is whether the

3 Page Three -3- public official, by reason of a personal interest in the matter, is placed in a situation of temptation to serve his own purposes, to the prejudice of those for whom the law authorizes him to act. The validity of his action does not rest upon proof of fraud, dishonesty, loss to the municipality, or whether he was in fact influenced by his personal interest. [S & L Associates, Inc. v. Washington Township, 61 N.J. Super. 312 (App. Div. 1960), aff d in part, rev d in part, 35 N.J. 224 (1961). (emphasis added)] In McNamara v. Borough of Saddle River, 60 N.J. Super. 367 (Law Div.), aff d, 64 N.J. Super. 426 (App. Div. 1960) the court dealt with the issue of whether a councilman's vote on the adoption of an amended zoning ordinance was improper due to his interest in the subject matter. The ordinance dealt with the location of schools in residential zones and was proposed in response to a specific school's application, an application which the councilman had opposed when he was a private citizen and he owned property which was within 200 feet of the subject property. The Appellate Division, in affirming the trial court's holding, stated: The issue is whether or not [the councilman] had a disqualifying interest in the subject matter of the ordinance. His motives in voting for it, absent fraud or bad faith, which no one asserts, are immaterial. If there is interest, there is disqualification automatically, entirely without regard to actual motive, as the purpose of the rule is prophylactic, that is, to prevent the possibility of an official in a position of self-interest being influenced thereby to deviate from his sworn duty to be guided only by the public interest in voting as such official. [McNamara, supra, 64 N.J. Super. at (emphasis added).] The Appellate Division went on to discuss the relevance of the councilman s ownership of property that was within 200 feet of property affected by the ordinance: The legislature has declared that the owners of any property within 200 feet of property to be affected by an appeal to a Board of Adjustment shall be served with notice of the proceedings at least ten days before the hearing. N.J.S.A. 40: This is tantamount to a declaration of interest in the zoning treatment of a particular property on the part of those owning other property within 200 feet. That declaration accords with common sense, although the line might in some cases justifiably be drawn at a further distance. By analogy, the statute would appear to indicate that the owner of property within 200 feet of property which is the substantial subject of a zoning ordinance amendment may be considered to have an interest in the amendment, in the sense presently relevant. We are firm in the view that, in all surrounding circumstances

4 Page Four -4- reflected by this record, there was such a disqualifying interest on the part of [the] [c]ouncilman [McNamara, supra, 64 N.J. Super. at ] Furthermore, in Barrett v. Twp. Committee of the Twp. of Union, 230 N.J. Super. 195 (App. Div. 1989), the Appellate Division invalidated a zoning ordinance which favored owners of a nursing home in which a member of the governing body s mother resided. The panel held that the fact that the committee member s interest was not a direct personal or financial interest is not dispositive of the issue. Rather, the question is whether there existed an interest creating a potential conflict and not whether the committeeman yielded to the temptation of it. Id. at 204. The circumstance of the committeeman s mother residing in the nursing home was not one that he held in common with members of the public. Id. at 204 (quoting Aldom v. Borough of Roseland, 42 N.J. Super. 495, 507 (App. Div. 1957)). In the instant matter, although the proposed amendment is not a land use ordinance per se, without question it affects the Homeowners Association of which you are a member. In fact, the ordinance was requested by and is supported by the Greenbriar Homeowners Association. As a result, you have an interest not held in common with other members of the public. Should you participate or vote on the ordinance, Ocean Township could be subjected to a potential successful attack on the passage of the ordinance resulting in its invalidation and the incurring of substantial legal fees in attempting to defend same. Finally, in addition to the invalidation of the Ordinance by the court, your knowing and intentional violation of the Local Government Ethics Law may result in a personal fine of up to $500.00, and may represent grounds for your removal or suspension from your office as a member of the Township Committee, by the New Jersey Local Finance Board. N.J.S.A. 40A: While questions of conflict of interest are always fact sensitive in nature, it is our understanding that some residents of the Greenbriar community have also questioned why members of the HOA, who serve on other Township Boards, have likewise recused themselves when an application comes before the Board wherein the HOA is either the applicant or an objector. For the reasons set forth above, the same conflict of interest rules would apply in those circumstances. Should you or any member of the Township Committee have any questions with regard to this matter, please do not hesitate to contact me.

5 Page Five -5- Very truly yours, GREGORY P. McGUCKIN GPM/du Cc: Dennis Tredy, Deputy Mayor Joseph Lachewiec, Committeeman David Breeden, Admin. Diane Ambrosio, RMC, Township Clerk