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Beacon Hill Farm, LLC v. Township of Marlboro

2006 WL 1161361 (N.J. Super. Law Div. 2006) (Unpublished)

MUNICIPALITIES; CONFLICTS OF INTEREST — Once a public official has a conflict of interest, any official action taken taints the process and the action must be invalidated because the effect of continued participation on the debate, the process, and the public can never been known or measured.

The Council President of a municipality presided over meetings at which changes were made to the municipality zoning ordinance. One of the affected property owners was well known to the Council President and was married to the Council President’s cousin. Before the Council President became a member of the municipality’s Council, he consulted with this particular property owner in that property owner’s capacity as a real estate agent, although he never purchased any of the properties that were shown to him. Nonetheless, based on these involvements with the affected property owner, the Council President recused himself from consideration of the zoning ordinance.

After recusal, the Council President continued to act as the President, but did not vote on the ordinance. As Council President, he “direct[ed] the debate on all matters of public comment, he recognize[d] the persons who address[ed] the ... Council, and request[ed] that the clerk conduct a roll call vote of the ... Council once public discussion had been completed.” In essence, he “controll[ed] the meeting and convey[ed] to the public the power to control the legislative process.”

The Council adopted the zoning ordinance and an appeal of that adoption was taken to the Court based on the activities of the Council President. That appeal was successful, with the Court holding that the Council President’s activities “in presiding over and conducting the meetings concerning the adoption of the [zoning] Ordinance vitiate[d] the action of the Council in its adoption.”

“A public office is a public trust. As fiduciaries and trustees of the public interest, elected officials must serve that interest with the highest fidelity.” There was no question that the Council President recognized that conflict. The question was whether the Council President’s continuing to sit with the Council “and act as its presiding officer during questions, discussions, public deliberations and adoption of the subject ordinance ... conveyed to the public that he controlled the process.” Although it is true that no “New Jersey authority explicitly requires a public official to remove himself [or herself] from the presence of the public body after recusal if that public official does not enter into the debate or participate in the vote,” a fair of reading of New Jersey cases persuaded the Court to believe that the Council President could not act “in any official capacity after the declaration of conflict” and that includes “sitting with the Council, presiding over the proceedings and directing a debate.”

The Court realized that the “effect of continued participation on the debate, the process and the public [could] never be known or measured.” Consequently, the Court felt that once it was established that a public official has a conflict of interest, any official action taken taints the process and the action must be invalidated. According to the Court, “[t]he mere existence of a conflict, and not its actual effect, require[ed] the municipal action to be invalidated.”

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