On appeal from the Superior Court, Law Division, Bergen County. Denial of motion to dismiss the indictment is reported at 225 N.J. Super. 365 (1988).
Petrella, O'Brien and Havey. The opinion of the court was delivered by O'Brien, J.A.D.
Defendant Mary Ann Maiorana appeals from her conviction of misconduct in office (N.J.S.A. 2C:30-2), upon which she was sentenced to a term of three years. She was acquitted of theft by deception. She also appeals from denial of her motion to dismiss count two of the indictment which is reported as, State v. Maioranna, 225 N.J. Super. 365, 542 A.2d 510 (Law Div.1988). We affirm denial of the motion to dismiss the indictment and the conviction, subject to the result of a hearing pursuant to Kastigar v. United States, 406 U.S. 441, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972), and State v. Strong, 110 N.J. 583, 596, 542 A.2d 866 (1988), for which the matter is remanded.
The United States Department of Housing and Urban Development (HUD) made block grants to Bergen County to be used
for various county and municipal projects. The Bergen County Community Development Office served as the agency through which the HUD funds were disbursed. In early 1987, the Community Development Office employed approximately 45 people to administer approximately $9,000,000 in annual HUD grants. Defendant became director of the Community Development Office in January 1984.
Codefendant Charles Oglesby*fn1 was employed by the County Community Development Office from September 1981 until January 1986, holding various job titles and progressing from a "cost estimator" to an "assistant planner." In the latter capacity, Oglesby was assigned to monitor community development activities (including the expenditure of grant monies) for approximately ten municipalities in the central region of Bergen County, including the Township of Saddle Brook. For about two years before Oglesby left the employ of the Community Development Office, he and defendant engaged in a romantic affair. Allegedly in January 1986 that relationship ended when Oglesby began living with another woman.
After Oglesby resigned his position with the county, he was appointed by Peter LoDico, the Mayor of Saddle Brook, as the mayor's alternate to the Central Bergen Regional Community Development Council, an unsalaried position. After January 1986, defendant had no further social contact with Oglesby although they met occasionally at meetings of the Regional Community Development Council, which he attended as alternate for the mayor of Saddle Brook and she attended as part of her official duties. Oglesby was elected to serve as the vice-chairman of the regional council and regularly reported back to Mayor LoDico on Regional Council Community Development matters.
In 1983, a $25,000 grant had been allocated to Saddle Brook for a study of the revitalization of the town's central business district. At the Regional Community Development Council meetings, numerous references were made to the failure of Saddle Brook to utilize that grant. In approximately September 1986, Oglesby reported to Mayor LoDico that requests were being made for status reports on the use of the $25,000 planning grant. By letter of September 30, 1986, the mayor informed defendant that the business district revitalization study and another community development matter relating to "Market Street channelization" were interrelated and taking more time than expected. In his letter, the mayor said to defendant:
Township engineer is in the process of working with the county since Market Street is a county road to obtain their input on plans, once this is approved we should be able to move quickly. The business district study is in the process and report should be forthcoming at a future date.
At trial, the mayor conceded that there was no study nor were there any reports in progress at that time.
Oglesby asked the mayor to appoint him to do the feasibility study of Market Street. The testimony was conflicting as to whether the mayor actually appointed Oglesby to do the study. Oglesby said he had been appointed. The mayor claimed he requested Oglesby to furnish "a proposal" for the study, which he never received, but he did not enter into a contract with Oglesby to perform the study. In any event, in November 1986, Oglesby told the mayor the town had "to show some sort of movement" on the grant and presented the mayor with an official voucher for $15,000 of the $25,000 grant for the central business revitalization study to be transferred to a Saddle Brook account. The mayor signed the voucher on November 25, 1986, and forwarded it to defendant at the County Community Development Office. The voucher stated that the money was to pay for a "preliminary draft." When this voucher was received at the County Community Development Office, defendant countersigned it, and forwarded it to the county treasurer's office. She advised an assistant accountant in the county treasurer's office to begin the process of obtaining the HUD
monies from the federal account, but not to authorize transfer of the $15,000 until the necessary backup paper work was received from Saddle Brook.
Ultimately, the $15,000 was transferred to Saddle Brook in December 1986. At that time and in January 1987, Oglesby submitted two municipal vouchers to the municipality payable to him, one in the amount of $7,500 and the other in the amount of $10,000, which the mayor and the municipal treasurer refused to process.
On January 22, 1987, Oglesby came to defendant's office with a $10,000 voucher payable to him for the central business district revitalization study in Saddle Brook. This voucher contained a certification by Oglesby that the work involved had been completed. Defendant told Oglesby that the voucher could not be processed until she had something from the township to show his appointment to do the study. Using the telephone in defendant's office, Oglesby called the Saddle Brook town clerk, relaying his need for a letter confirming that he had been appointed to perform the study. When he hung up, Oglesby informed defendant she would be receiving the letter and left, leaving the voucher with her.
On the following day, January 23, 1987, Oglesby went to the municipal building in Saddle Brook and asked to speak with the mayor. He told the town clerk he wanted to speak to the mayor about obtaining the letter he needed regarding the study. Since the mayor was not in the office, the clerk telephoned him at his work place. She gave the telephone to Oglesby, who spoke directly to the mayor. When the clerk got back on the telephone, the mayor instructed her to prepare the letter and to coordinate with Oglesby as to its wording. The town clerk typed a letter, addressed to defendant as director of the Community Development Office, stating that the mayor had appointed Oglesby to prepare the central business district revitalization
study. Later that day the mayor signed the letter.*fn2 A few days after the letter was prepared, the town clerk told Maiorana that Oglesby was supposed to pick up the executed letter but had not done so. Maiorana asked the clerk to send the letter directly to the Community Development Office. It was delivered the next day, January 27, 1987.
When defendant learned that the letter of appointment from the mayor was on its way, she signed the voucher but held it until the mayor's letter was received on January 27, 1987. She attached the other documents to it, logged in the freeholder resolution date, made a copy of all the documents and placed it on the desk of one of her assistants for processing. The account clerk was uncertain whether to process the matter because the voucher was a copy rather than the "green" original, and because the voucher was signed by Oglesby rather than by the mayor. Defendant instructed the account clerk to post the paper and it was processed in the usual way. Although the account clerk testified that it normally takes about ten days for a voucher to be paid, the $10,000 check to pay Oglesby's voucher was issued on January 28, 1987, as the paper work was hand carried to the county treasurer's office at defendant's direction.
On January 28, 1987, an assistant accountant in the treasurer's office, called defendant to say he had earlier given Oglesby a check for $10,000 payable to Saddle Brook, but that Oglesby had returned and requested that it be replaced with a $10,000 check payable to him. Defendant told the accountant that the check should be made payable to Oglesby because it was he who had applied for payment and signed the voucher certifying
that the work had been performed. Defendant claimed that direct payment to an unpaid vendor was not unusual and that a municipal resolution was not required where there was documentary authorization from the town designating the vendor, which she considered the mayor's letter of January 23, 1989 to be. Oglesby cashed the $10,000 check at the drawee bank on January 28, 1987, depositing $4,000 in an account with that bank. All of those funds were withdrawn by February 19, 1987.
In late February 1987, the mayor telephoned defendant to ask whether Oglesby had been paid for a study. She explained to the mayor that Oglesby had submitted a voucher and had assured her the study had been submitted to the mayor. When the mayor told defendant he had not received the study, ...