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Shapiro v. Mertz

368 N.J. Super. 46, 845 A.2d 186 (App. Div. 2004)

ZONING; CONFLICTS OF INTEREST—The public can easily perceive that it is improper for one spouse to vote, or participate in the vote, for the other spouse’s appointment to a land use board even if the vote was unanimous.

A member of a municipality’s governing body voted for her husband’s appointment to the municipal planning board. With her vote, the governing body approved his appointment by a 3-2 margin. The local municipality and several of its citizens argued that her vote constituted a conflict of interest and the husband’s appointment should be vacated. In response, the couple contended that the husband was well qualified on the merits. The lower court vacated the appointment because of the marital relationship and because the public perceived the vote to be a serious problem, thus creating a conflict of interest and violating the local ethics law. That law stated: “[n]o 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” (emphasis added).

The Supreme Court has recognized four situations which require disqualification: direct and indirect pecuniary interests, and direct and indirect personal interests. Determination of a conflict must be done on a case-by-case basis and the question is whether the circumstances could reasonably be interpreted to show that the interests had the likely capacity to tempt the official to depart from his or her sworn public duty. In addition, a conflicting interest arises when the voting public official has an interest not shared in common with the other members of the public. Actual proof of dishonesty does not have to be shown. The key is whether there is a potential for conflict.

The Appellate Division held that a familial relationship does not always create a per se conflict. However, a conflict usually exists when a family member’s vote results in another family member obtaining a position in a government agency. According to the Court, the focus should be on the public’s perception of a conflict, and less so on whether or not there is an actual conflict. In this situation, the public could easily perceive that it was improper for a wife to participate in her husband’s appointment to an influential position. Even had the vote been 5-0, the wife’s vote would still have disqualified the outcome. The Appellate Division held that marriage is a direct personal involvement that could reasonably be expected to impair objectivity or independence of judgment, and, on that basis, affirmed the lower court’s decision to set aside the appointment.

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