Opinion Conflict Councilwoman Shapiro

8/6/2019 Opinion Conflict Councilwoman Shapiro

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MURPHY HUBNER McKEON P.C.(Formerly Johnson, Murphy, Hubner, McKeon, Wubbenhorst, Bucco & Appelt, PC)

COUNSELLORS-AT-LAWMARTIN F. MURPHY1 JAMES T. BRYCEMICHAEL E. HUBNER RIVERDALE SOUTH CHRISTOPHER I. WOODS1 JAMES L. McKEON, III1 51 ROUTE 23 SOUTH, P.O. BOX 70, RIVERDALE, NEW JERSEY 07457ROBERT H. OOSTDYK, JR. OF COUNSEL:GARY J. CHESTER1 TELEPHONE: (973) 835-0100 DIANA WALSH

ANTHONY M. BUCCO FACSIMILE: (973) 835-1732 SERENE M. HENNIONSHARON L. WEINER2 www.murphyhubnerlaw.com ROBERT S. MEYERHOWARD F. APPELT, II

1NEW JERSEY & NEW YORK BAR

2NEW JERSEY, NEW YORK & PENNSYLVANIA BAR

NEW YORK OFFICE: 23 WEST STREETWARWICK, NY 109TEL: (845) 987-1577

Writer’s Direct:Tel. (973) 835-0100 ext. [email protected]

ATTORNEY/CLIENT PRIVILEGED

MEMORANDUM

TO: Councilwoman Deborah Shapiro

CC: Mayor and Members of Livingston Township Council

FROM: Sharon L. Weiner, Esq., Livingston Township Attorney

DATE: June 22, 2011

RE: Possible Conflict of Interest of Councilwoman Deborah Shapiro

due to her involvement with the Hanyu International Academy

Charter School

You have asked my opinion as to whether being a founding member of the Hanyu

International Academy Charter School (HIACS) has created a conflict with your position as a

Livingston Councilwoman. After examining the Local Government Ethics Law and applicable case

law, I have concluded that while becoming a founding member of HIACS was not in itself a conflict

with your position as Livingston Councilwoman, your subsequent actions violated the Local

Government Ethics Law 40A:9-22.5(3)(c) and (d) as well as created a conflict described as an

“indirect personal interest” in the seminal case on municipal official ethics. Wyzykowski v. Rizas,

132 N.J. 509, 526 (1993).





founder of the Hanyu International Academy Charter School (HIACS).” Further in the letter, you

state, “And as Town Councilwoman, I believe the school will help attract diverse population . . .”

(c) Part 1, Section 7, Family Community and Consultant Involvement under

“Local Governments”. The following is listed: “newly elected Livingston Town Councilwoman

Mrs. Deborah Shapiro is a founding member of HIACS.”

(d) Part 2, the Application Financial Plan, Budget Summary, states: “We initially

plan to obtain $100,000 line of credit from local banks under personal guarantees from founders.”

Also, the May 26, 2011, West Essex Tribune, HIACS representative Sharon Kou is quoted as

stating, “start up fees will be raised by the founding members” Though you have indicated you were

not aware of this statement, the application clearly states that you were going to be asked to

personally guaranty and, therefore, have a financial responsibility to the financial success of the

school in violation of N.J.S.A. 40A:9-22.5(d).

In each of these instances, your position as a Livingston Councilwoman has been used or

could be viewed as an attempt to secure “advantages” for yourself or others. Clearly, identifying

yourself as a Livingston Councilwoman gives the impression that you are using your official

position to advance a personal interest.

One of the primary purposes in the regulation of the conduct of public officials is to foster

the public’s confidence in government. It has been stated: “next in importance to the duty of the

officer to render righteous judgment is to do it in a manner as will beget no suspicion of pureness

and integrity of his actions.” Aldon v. Borough of Roseland, 42 N.J.Super. 495, 506 (App. Div.

1956). Therefore, it is imperative that a local official avoid not only actual or potential conflicts but

apparent conflicts as well. Though in your mind you felt there was no conflict with your position as

Councilwoman and your becoming a founding member, your use of your official title is a conflict

which is prohibited by the Local Government Ethics Law.



(e) Town Council Resolution Opposing the Establishment of Charter School. On

May 16, 2011, a resolution was presented to the members of the Township Council opposing the

establishment of charter schools. Though you have a personal involvement and a personal interest

in the success of the charter schools, you participated in the vote opposing the Council’s resolution

against the creation of charter schools. A review of case law shows it is not necessary to prove that

a special interest actually influenced the official’s decision, as long as it created a possible conflict.

In this instance, your personal involvement may have affected your judgment and your desire to

help the school get established. So though as you state you are not being reimbursed nor will any

member of your family be employed by the school, there is still a conflict which is prohibited by the

Local Government Ethics Law. In fact, it was stated during the discussion of the resolution that the

resolution was deemed necessary due to your actions by citing in your letter to the Commissioner of

Education that you were a Livingston Councilwoman. It was noted that the resolution was needed

so there was no misunderstanding that the charter school was supported by the remainder of the

members of the Livingston Township Council. It was a clear conflict of interest for you to

participate in the vote of the resolution. Further, due to your personal involvement going forward if

a charter school is established and if the Board of Education budget is defeated and, therefore, the

budget is referred to the Township Council, you would need to recuse yourself from voting on the

budget of the Board of Education.

II. Case Law

At the common law, a public official is disqualified from participating in a proceeding in

which the official has a conflict in interest which may interfere with the impartial performance of

his duties as a member of the public body. While there are many fact specific situations that result

in a conflict of interest, four main categories have emerged as necessitating disqualification of the

interested “official from the matter at hand.” These are set forth in the case of Wyzykowski v.

Rizas, 132 N.J. 509 (1993). I thought it would be useful if I described each of these categories.



1. Direct Pecuniary Interest. A direct pecuniary interest is present when an official

votes or acts on a matter benefiting the official’s own property or affording a direct financial gain.

2. Indirect Pecuniary Interest. An indirect pecuniary interest is present when an official

votes or acts on a matter that financially benefits one closely tied to the official, such as an employer

or family member.

3. Direct Personal Interest. A direct personal interest is when an official votes or acts

on a matter that benefits a blood relative or close friend in a non-financial way but a matter of great

importance. Such an interest may be characterized as palpable interest that is not financial in nature

but of an immediate and unique importance to the public official.

4. Indirect Personal Interest. An indirect personal interest is when an official votes or

acts on a matter in which the person’s judgment may be affected because of membership in some

organization and a desire to help that organization further its policies.

As set forth above, I believe your actions relative to the HIACS fall within the category of

“indirect personal interest.” Court decisions on the subject of ethics have emphasized the fact

specific nature of each potential conflict situation. Therefore, I will describe the actions you have

taken regarding the charter school. As stated above, on the application for HIACS, you indicated

that you were elected to the Livingston Township Council and listed all of your positions in

Livingston. In your letter to Commissioner Cerf, you again stated your position that as a Livingston

Councilwoman you believed in the school. Again, though you were aware you did have a personal

interest in the success of the charter school, you voted on Council’s resolution opposing the

establishment of the charter school. In these instances, “your indirect personal interest” may have

affected your judgment in your desire to help get the school established. Although you are not

being reimbursed or any member of your family will not be employed by the school, there is a

conflict of interest.



III. Conclusion

After thoroughly researching the Local Government Ethics Law and case law on municipal

ethics, I have concluded the following:

1. Becoming a founding member of the Hanyu International Academy Charter School

was not in itself a conflict.

2. You violated the Local Government Ethics Law by using your official position to

advance a personal interest.

3. You violated the Local Government Ethics Law by voting on a resolution dealing

with the establishment of a charter school while having a personal involvement in the success of the

charter school made apparent by your many public statements in support of the school.

Therefore, based on my examination of the Local Government Ethics Law and the current

case law on local government ethics, I have concluded that you established a conflict of interest

between your position as a Livingston Councilwoman and your actions in support of the

establishment of the Hanyu International Academy Charter School.

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Opinion Conflict Councilwoman Shapiro