Michael Traino, the plaintiff, served the Township of Mount Laurel, a Faulkner Act Optional Plan E municipality, under N.J.S.A. 40:69A-114.1 et seq., in three capacities: as a member of its council, elected pursuant to N.J.S.A. 40:69A-114.3; as mayor, elected by the council pursuant to N.J.S.A. 40:69A-86, 87 and, by operation of law, pursuant to N.J.S.A. 40:55-1.4, as a member of its planning board. His term of office was fixed at four years by N.J.S.A. 40A:9-130. In his private capacity he held a significant position with a corporate real estate developer in the township.
A private Mount Laurel citizen, by letter, charged him with being engaged in conflicts of interest, because he had dealt with matters involving competitors of his employer while sitting on the planning board and the township council. The matter was referred to the township's board of ethics, created by ordinance (the Code of Ethics) and composed of three persons, two being citizens of the township and the third a citizen of a neighboring municipality. No member of the governing body sat on the board. Hearings were held in response to the charge, with plaintiff's attendance being required by subpoena. He refused to obey the subpoena and did not participate in the hearings. The board, in a written opinion filed with council, found that his conduct had violated the conflict of interest provisions of the Code. The board further decided that he had not made public disclosure of "the nature and general extent of his interest in the affairs" of his employer, an additional Code requirement.
Plaintiff makes four claims:
(1) The township was not empowered to adopt an ordinance establishing a Board of Ethics and ethical standards for its elected officials.
(2) The Board did not have a quorum when it conducted its public hearing and should not have included a nonresident in its membership; consequently, its actions had no validity.
(3) The Board of Ethics had no power to issue subpoenas.
(4) The facts set forth in the complaint filed against the mayor were not sufficient to confer jurisdiction upon the Board and did not support its conclusions.
A. The Municipality's Power to Adopt a Code of Ethics
Mount Laurel Township's Code of Ethics, adopted on December 28, 1978, covered
any person elected or appointed to, or employed or retained by, any public office or public body of the municipality whether paid or unpaid and whether part-time or full-time.
The ordinance provided, in pertinent part, as follows:
a. Financial or Personal Interest
No official or employee either on his own behalf or on behalf of any other person, shall have any financial or personal interest in any business or transaction with any public body in the municipality unless he shall first make full public disclosure of the nature and extent of such interest.
b. Disclosure and Disqualification
Whenever the performance of his official duties shall require any official or employee to deliberate and vote on any matter involving his financial or personal interest, he shall publicly disclose the nature and general extent of such interest and disqualify himself from participating in the deliberation as well as in the voting.
There is hereby created and established a Board of Ethics consisting of three persons who shall hold no other office or employment under the municipality. At least one of said members shall be an attorney-at-law of the State of New Jersey, and said member may, but shall not be required to be, a resident of the municipality. All other members shall be residents.
c. Hearings and Determinations
Upon sworn complaint of any person alleging facts which, if true, would constitute improper conduct under the provisions of this Code, the Board shall conduct a public hearing in accordance with all of the requirements of due process of law, and in written findings of fact and conclusions based thereon, make a determination concerning the propriety of the conduct of the official or employee complained of.
In the event that the Board of Ethics shall, under the provision of No. 4 above, make a determination that the conduct of any official or employee was improper, the governing body, based upon the written findings, conclusions and determination of the Board of Ethics, may institute appropriate action for censure, suspension or removal from office of said official or employee.
This effort to provide an ethics code for municipal officials is highly commendable. Is it authorized? It is a ...