Thursday, December 4, 2014

Was the Edison Ethics Board allowed to waive Mayor Lankey's fine?

On December 2, 2014, the Edison Municipal Ethics Board made two decisions.  First, it found that Mayor Thomas Lankey violated the Local Government Ethics Law by using the free services of the Township lawyer to help fight a traffic ticket.  Second, it voted to not assess any fine or penalty against Lankey for the ethics violation.   A few people have asked me whether the Ethics Board had the discretion to waive a fine after a violation has been found.

Given the mandatory language of N.J.S.A. 40A:9-22.10(b), it appears that imposition of a fine is mandatory:
b. An elected local government officer or employee found guilty by the Local Finance Board or a county or municipal ethics board of the violation of any provision of P.L.1991, c. 29 (C.40A:9-22.1 et seq.) or of any code of ethics in effect pursuant to P.L.1991, c. 29 (C.40A:9-22.1 et seq.), shall be fined not less than $100.00 nor more than $500.00, which penalty may be collected in a summary proceeding pursuant to “the penalty enforcement law” (N.J.S.2A:58-1 et seq.).  (Emphasis added.)
But, another statute--N.J.S.A. 40A:9-22.24--softens the "shall be fined" language:
If the ethics board determines that the officer or employee is in conflict with the code or any financial disclosure requirements, it may impose any penalties which it believes appropriate within the limitations of this act.  (Emphasis supplied.)
The two sections contradict each other.  But, my guess is that imposition of a penalty for ethics violations is discretionary.