On appeal from the Superior Court of New Jersey, Law Division (BUR-L-29-4) and Chancery Division, (BUR-C-8-04), Burlington County.
Before Judges King, Lintner and Lisa.
The opinion of the court was delivered by: King, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This case concerns the legality of a governing body member's vote for her husband's appointment to the municipal planning board. With her vote, the governing body approved of her husband's appointment by a 3-2 margin. We conclude that the council member's vote for her spouse's appointment was a violation of the Local Government Ethics Law, N.J.S.A. 40A:9-22.5d (Ethics Law). We affirm the ruling of Judge Sweeney which set aside the appointment because the council member voted for her husband.
This is an appeal by Kathleen Shapiro, a member of Moorestown's Township Council and her husband, Andrew Shapiro, from an order of the Law Division in Burlington County invalidating her vote for his appointment to the Planning Board. Andrew has served four terms on the Planning Board, spanning fifteen years, including five years as chair. His most recent term expired on December 31, 2003. The Planning Board elects the chair from among Class IV citizen members. N.J.S.A. 40:55D-24; N.J.S.A. 40:55D-23(a). Andrew's wife of six months, Kathleen, was one of five elected members of the Township Council. She had served on Council since January 2001.
Soon after her marriage in September 2002, Kathleen filed an action in the Law Division seeking a declaratory judgment that no conflict of interest existed because of their positions in local government. The suit was dismissed without prejudice as non-justiciable.
On January 12, 2004 the Council held a reorganization meeting where appointments to the Planning Board, including Andrew's, were considered. The Township solicitor, Dennis P. Talty, Esquire, advised Kathleen at the meeting that her participation in the vote for Andrew's reappointment would contravene the Ethics Law, N.J.S.A. 40:9-22.5d and the cognate Section 9-5 of the identical Municipal Ethics Code. Kathleen cast the deciding vote and the five-member Council reappointed Andrew to the Planning Board by a 3-2 vote.
On January 13 respondents Michael Mertz and John Gibson each filed complaints with the Ethics Board asserting that Kathleen's vote violated Section 9-5 of the Moorestown Municipal Code of Ethics. On January 14 Kathleen filed this action against Mertz, Gibson and the Ethics Board. She sought a judicial determination on whether her vote for her husband violated the local ethics ordinance or N.J.S.A. 40A:9-22.5. She also sought injunctive relief against any action by the Ethics Board.
Assignment Judge Sweeney promptly heard oral argument on Kathleen's order to show cause and added the Township as a party. On January 16 Moorestown residents Harvey Howard and Larry Anastasi filed a separate complaint in the Chancery Division challenging Kathleen's vote and sought her removal from Council.
Judge Sweeney issued a written opinion on January 20. He consolidated the Law Division and Chancery Division actions and ruled that Kathleen's vote violated N.J.S.A. 40A:9-22.5d. His decision and order: (1) invalidated Kathleen's vote; (2) vacated the appointment of Andrew to the Planning Board; (3) denied the removal of Kathleen from Council; and (4) ruled that the Ethics Board retained jurisdiction over the complaint filed with it.
The Shapiros promptly filed an emergency application with this court requesting a stay of Judge Sweeney's order and an accelerated hearing and disposition of the appeal. We heard argument on an emergency basis on January 23 and issued an order granting the motion for acceleration. We denied a stay of Judge Sweeney's order pending this accelerated appeal. We also memorialized our agreement with the parties that the Township would not fill the vacancy on the Planning Board ...