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Miscoski v. Local Finance Board

July 21, 2008

WILLIAM E. MISCOSKI, RESPONDENT-APPELLANT,
v.
LOCAL FINANCE BOARD, PETITIONER-RESPONDENT.



On appeal from the Final Decision of the Local Finance Board, Department of Community Affairs, LFB-02-034.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 23, 2008

Before Judges Sapp-Peterson, Messano and King.

William E. Miscoski appeals from the March 14, 2007, final decision of the Local Finance Board (the Board) that determined he violated N.J.S.A. 40A:9-22.5(d) and imposed a $500 fine. We have considered the arguments raised in light of the record and applicable legal standards. We reverse.

I.

On May 2, 2005, the Board served Miscoski, then Deputy Mayor and a member of the municipal governing body of the Township of Upper Freehold (Upper Freehold), with a "Notice of Violation" pursuant to the Local Government Ethics Law, N.J.S.A. 40A:9-22.1 to -22.25 (the LGEL). The Board alleged that Miscoski had "violated N.J.S.A. 40A:9-22.5(d)" "when he voted affirmatively on township bond ordinance #100-02 to provide funds to purchase open space which incorporated a list of properties for possible purchase that contained a property . . . owned by [] Miscoski's mother and business partner, Ellen Miscoski[.]" The Board concluded after "consider[ation] of the complaint filed . . ., the written response filed on behalf of [] Miscoski, and the information and documentation compiled by the Board's staff during the investigation of the complaint," that Miscoski violated the statute "because he had a direct or indirect personal or financial involvement that might reasonably be expected to impair his objectivity or independent judgment." See N.J.S.A. 40A:9-22.5(d). The Board assessed a fine of $500.

Miscoski was advised of his right to contest the determination and, through counsel, requested an administrative hearing before the Office of Administrative Law (OAL). N.J.A.C. 5:35-1.1(i)(2). On January 17, 2006, the hearing was held before the administrative law judge (ALJ), and it commenced with a joint stipulation entered by Miscoski's attorney and the deputy attorney general representing the Board. In particular, the parties agreed 1) that Miscoski served on Upper Freehold's township committee on September 18, 2002; 2) that at a committee meeting on that date, he voted affirmatively to approve ordinance #100-02 (the ordinance); and 3) that one of the properties incorporated by reference in the ordinance was owned by Miscoski's mother, Ellen. The Board rested after the stipulation was entered into the record, and the ordinance and minutes from the township committee meeting were introduced in evidence.*fn1

Miscoski testified that his mother lived in Upper Freehold, and the property in question was a fifty-one acre tract "across the road" from her residence. He also acknowledged that a partnership, Miscoski Associates (the partnership), comprised of his mother, his brother, his sister, his father's trust, and himself, owned 130 additional acres of land upon which "Cream Ridge Golf Course, Incorporated," a corporation owned equally by himself and his brother-in-law, operated a golf course. Miscoski testified that the partnership had no ownership interest in his mother's property.

Noting that Upper Freehold wanted to "stay rural . . . stay a farming community," Miscoski testified that the ordinance in question was required to allow the township to be eligible for a "Planning Incentive Grant (PIG)" by which it could acquire grant monies to purchase "eligible farm[-]assessed properties" and maintain them as open space. According to Miscoski, the township engineer was required to create the list of properties attached to the ordinance, i.e., a list of "all farmland assessed property that's eligible." Miscoski acknowledged that his mother's property was on the list.

Miscoski testified that it was in Upper Freehold's best interests to include more eligible property in the ordinance because more money would be allocated under the PIG program. He further testified that under the PIG program, a landowner could expect to receive approximately $8000 per acre of land if he sold his property to the township for preservation purposes, much less that the $250,000 per acre he estimated was the market rate for developable land in Upper Freehold. He noted, "[F]or someone to go into the farmland preservation program, it's a gift. It's a donation. It's a sacrifice."

Miscoski testified that four affirmative votes from the five-person committee were needed to pass the ordinance, and one of the committee members was sick and absent from the meeting. He further testified that the vote could not be postponed because "the grant was due the following week." Upper Freehold received a million dollars in grant money from its PIG application, and the township used the funds to buy an eighty-three acre parcel that was being turned into a park. Upper Freehold did not use any of the money to purchase or attempt to purchase Ellen Miscoski's land, which she apparently still owns.

On cross-examination Miscoski acknowledged that the township committee ultimately had to approve the actual purchase of any property for preservation purposes, and the monies awarded under the PIG program were "matched" by Upper Freehold in order to do so. He further testified that the value for land purchased through the PIG program had increased to $15,000 per acre. Miscoski reiterated that the list attached to the ordinance contained "every property in Upper Freehold [] that is farmland assessed." He also acknowledged that his mother's property was "contiguous to the golf course" owned by the partnership.

The ALJ issued her Initial Decision on February 24, 2006. Citing Wyzykowski v. Rizas, 132 N.J. 509, 525-26 (1993), she concluded that Miscoski's interests did not fit within any of the four categories of disqualifying interests outlined by the Supreme Court. She based her conclusion upon the factual stipulations, and the "competent, credible, [and] unrefuted testimony of [] Miscoski." The ALJ found that the list of properties attached to the ordinance "consisted of all [ninety-three] properties in the township that were farmland assessed." She found that Miscoski had no "role in the creation of the list," nor was there "any evidence of any property being excluded" from the list. The ALJ further found that Miscoski's "action . . . ...


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