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State Ethics Commission v. Desimone

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 23, 2009

STATE ETHICS COMMISSION, RESPONDENT,
v.
JOHN DESIMONE, APPELLANT.

On appeal from the New Jersey State Ethics Commission, Docket No. 31-02.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 7, 2009

Before Judges Lisa and Coburn.

Appellant, John DeSimone, appeals from a final decision of the State Ethics Commission (Commission) finding him in violation of the Conflicts of Interest Law, N.J.S.A. 52:13D-12 to -28, and assessing a $500 civil penalty. We reject appellant's argument that the Commission's determination is arbitrary, capricious and not supported by substantial credible evidence. Accordingly, we affirm.

Appellant was one of four commissioners of the Union County Board of Elections (Board) when the relevant incidents occurred. He maintained a romantic relationship*fn1 with Joanne Arena, a Board employee. Arena's direct supervisor was Michael Moussallem, deputy administrator of the Board. One of his responsibilities was to evaluate the employees he supervised and make recommendations to the Board on personnel decisions affecting them. Although the ultimate decisions on raises, promotions, and other personnel issues were made by the Board, Moussallem's recommendations carried significant weight.

Appellant called Moussallem at his home inquiring about Arena's job performance and why Moussallem would not recommend her for a promotion. Appellant also discussed the subject with Moussallem on various occasions at work. Although Moussallem denied that he was "directly" pressured by appellant's contacts on this subject, he did feel "indirectly" pressured. Although these events did not lead to any recommendation by Moussallem that Arena be promoted, or to her promotion, the Commission filed this ethics complaint, charging violation of two sections of the Conflicts of Interest Law, namely:

No State officer or employee . . . should use or attempt to use his official position to secure unwarranted privileges or advantages for himself or others.

[N.J.S.A. 52:13D-23(e)(3).]

No State officer or employee . . . should knowingly act in any way that might reasonably be expected to create an impression or suspicion among the public having knowledge of his acts that he may be engaged in conduct violative of his trust as a State officer or employee . . . .

[N.J.S.A. 52:13D-23(e)(7).]

The matter was referred to the Office of Administrative Law for a hearing. The only witness called by the Commission was Moussallem. Based upon Moussallem's testimony, the ALJ issued an Initial Decision granting appellant's motion for summary disposition. The ALJ found that, viewing the evidence in the light most favorable to the Commission, along with all reasonable inferences, the evidence was insufficient to support either charge. The Commission rejected the Initial Decision, reinstated the complaint and remanded the matter to the OAL for a continuation of the hearing, allowing appellant to present his evidence. At the remanded hearing, appellant rested without calling any witnesses. Now applying the preponderance of the evidence standard, the ALJ found that Moussallem's testimony was insufficient to prove either charge. The ALJ issued a new Initial Decision again recommending dismissal of both charges.

The Commission accepted the ALJ's recommendation with respect to the charge alleging violation of N.J.S.A. 52:13D- 23(e)(3). However, it found the evidence sufficient to prove the violation of N.J.S.A. 52:13D-23(e)(7), dealing with the appearance of impropriety. In its final decision, the Commission explained its finding as follows:

When acting in an official capacity as a member of the Board, respondent is expected to act in a manner which will hold the respect and confidence of the public. See N.J.S.A. 52:13D-12(a). He should avoid conduct which creates the justifiable impression that the public trust assigned to him is being violated. Ibid. Applying this standard, given respondent's romantic relationship with Arena, he should not have had any involvement in matters concerning Arena's employment, including discussions with Moussallem concerning Arena's terms and conditions of employment. While we conclude that it has not been proven that respondent contacted Moussallem at home to attempt to influence Moussallem to recommend Arena for a promotion or raise, respondent's phone call to Moussallem could reasonably create the impression or suspicion among the public that he was calling for such purpose. Moussallem's testimony that he felt indirectly pressured by respondent supports this conclusion. At a minimum, whether or not that was the purpose of respondent's call, the public may have the impression or suspicion that respondent's call to Moussallem could have the effect of giving Arena an advantage by influencing Moussallem's decisions regarding whether or not to recommend Arena for a promotion or raise, and that this call may have been motivated by respondent's romantic relationship with Arena. Thus, we conclude that respondent violated N.J.S.A. 52:13D-23(e)(7) when he called Moussal[l]em to discuss why Arena had not been recommended for a promotion or raise.

Judicial review of the decisions of administrative agencies is very limited. We will not set aside such a decision if it is supported by substantial and credible evidence in the record as a whole and is not arbitrary, capricious or unreasonable. Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963).

The record in this case clearly establishes that, while engaging in a romantic relationship with a Board employee, appellant contacted that employee's direct supervisor, both at home and at work, to discuss her qualifications for a promotion and to inquire why she had not been recommended for a promotion. This conduct by appellant could reasonably create in the eyes of the public an impression or suspicion that appellant was violating his trust as a State officer or employee, as proscribed by N.J.S.A. 52:13D-23(e)(7). State officials are obligated to avoid such conduct with respect to a close family member or an individual with whom the public official has an "intimate personal involvement." Randolph v. City of Brigantine Planning Bd., 405 N.J. Super. 215, 232 (App. Div. 2009); In re Bator, 395 N.J. Super. 120, 127 (App. Div.), certif. denied, 193 N.J. 222 (2007).

We are satisfied from our review of the record that the Commission's decision is well supported by the evidence. Accordingly, it is not arbitrary, capricious or unreasonable. Appellant's arguments do not warrant further discussion. R. 2:11-3(e)(1)(E).

Affirmed.


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