Agenda - Planning Commission - 10/02/2008

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11 il Ii j: Ii i: !l I' ! r: i: i' i Ii I: I' I: ! i' I' 1 \: I I September 25,20081 Volume 21 No. 18 Board member Lauren Nicosia's father was "of counsel" at a law firm that had represented a co-owner of MW, Christopher Cole. That repre- sentation had been two years prior to the filing of MW's variance appli- cation. The law firm never represented :MW; nor was it actively represent- ing any of the entities or individuals associated with MW while MW's variance application was before the Board. Still, Meyer argued that the fact that Nicosia's fatherwas "of counsel" at a firm that previously rep- resented Cole presented a conflict of interest for Nicosia. Meyer argued that Nicosia therefore should have recused herself from the Board's con- sideration of MW's variance application. Meyer further argued that her failure to do so rendered the variance invalid. The trial court concluded that there was no conflict of interest requir- ing Nicosia to recuse herself. The trial court affirmed the Board's approv- al of MW's variance application. Meyer appealed. DECISION: Affirmed. :I \ On appeal,' the court held that there was no conflict of interest that disqualified Nicosia from participating in the Board's consideration of MW's variance application. Accordingly, the court concluded that MW's variance was valid. In so holding, the court noted that .under New Jersey law public rep- resentatives were required to recuse themselves if a conflict of interest might cloud their judgment. The court said that principle was provid- ed under both decisional law (court provided) and state statutory law (N.J.S.A. 40A:9-22:1 to 22.25). Under New Jersey statutory law, no lo- cal government officer or member of his/her immediate family could have "an interest in a business organization or engage in any business, trans- action, or professional activity, which [wa]s in substantial conflict with the proper discharge of his [/her] duties in the public interest." The court explaineci that under New Jersey law, Nicosia would have a disqualifying conflict of interest if: (1) she had an interest that was not shared in com- mon with other members of the public; and (2) the public could perceive a conflict between that private interest and her public duties, reg;rrdless of whether the interest actually influenced her action. The court found the second prong of that test was not met. Essentially, the court found that her father's association with MW was so far removed that Nicosia's participation in the variance application could not reasonably appear unproper. The court explained that whether Nicosia's familial relationship trig- . gered a disqualifying interest did not depend on the degree of relation- ship to her; rather it depended on the type of association that her father had with MW and the amount of interest her father had in her actions. The court found that the fact that Nicosia's father was "of counsel" at @ 2008 Thomson ReuterslWest 5 77