Thursday, June 22, 2017

Ethics Complaint alleges that two Council members in Middlesex County town voted to declare five police vacancies when their blood relatives were on the police hire list.

On May 1, 2017, two members of the Sayreville Borough Council voted to declare five vacancies in the Borough's police department while both Council members had blood relatives--a son and a brother--on the certified list of eligible candidates from which those vacant police positions would be filled.  The Council members claimed that the Borough Attorney said that their votes did not violate the Local Government Ethics Law because neither blood relative was financially dependent upon the Council members.

With all due respect to the Borough Attorney, I believe that the Council members had at least a "indirect . . . personal" relationship with their blood relatives which "might reasonably be expected to impair [their] objectivity or independence of judgment." This is the criteria set forth in the Local Government Ethics Law.  Accordingly, I (and the New Jersey Libertarian Party) have filed a formal ethics complaint (see below) with the Local Finance Board against both Council members.

Unfortunately, the public won't know the result of this complaint any time soon. It typically takes two to four years for the Local Finance Board to resolve ethics complaints.

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Patricia Parkin McNamara
Local Finance Board
101 S Broad St – PO Box 803
Trenton, NJ 08625-0803
(via e-mail only to Patricia.McNamara@dca.state.nj.us)

Dear Ms. McNamara:

We intend this e-mail to be our complaint against Victoria Kilpatrick and Mary Novak who, at all times relevant to the activities alleged below, served both as members of the Sayreville Borough Council (Middlesex County).  At issue is whether Kilpatrick and Novak violated the Local Government Ethics Law by voting to declare five vacancies in the Borough's police department while their relatives (i.e. Kilpatrick's brother and Novak's son) were on the list of prospective employees from which the five officers who would fill those vacancies would be selected.

In accordance with N.J.A.C. 5:35-1.1(b), following are the required elements of the complaint:

1. State the point of the Local Government Ethics Law (LGEL) alleged to be violated. 

N.J.S.A. 40A:9-22.5(c) and (d).

2. State the name(s) and title(s) of the parties involved in the action and against whom the complaint is filed. 

Complainants John Paff and the New Jersey Libertarian Party and Respondents Council member Victoria Kilpatrick and Council member Mary Novak.

3. Set forth in detail the pertinent facts surrounding the alleged violative action. 

Relevant to this complaint is the video recording of the May 1, 2017 meeting of the Sayreville Borough Council, which is on-line here.  Also relevant is an article entitled "Residents question practices behind hiring Sayreville officers" authored by Staff Writer Matthew Sockol and published by Greater Media Newspapers on May 16, 2017, which is on-line here.

FACTS:

The following facts are apparent from the video and article.

a. Novak and Kilpatrick both have blood relatives on the current list of eligible applicants from which the five vacant police officer positions will be filled.  (Article: According to Mayor O'Brien, "Novak’s son and Kilpatrick’s brother were on the employment list.") (Video: Time stamp 11:40 through 13:09).

b. According to Novak, Borough Attorney Michael DuPont, who was not present at the May 1, 2017 meeting, told her that participating in and voting on a matter impacting on her son's potential employment as a Borough police officer did not run afoul of the Local Government Ethics Law because her son was not her dependent. (Article: "Novak said she was told by borough attorney Michael DuPont, who was not in attendance at the meeting, that she could vote on the matter because it was not an ethical problem as long as the child is not a dependent.") (Video: Time stamp 11:56 through 12:17; 12:45 through 12:53)

c. Kilpatrick asserted that since her brother was not her dependent, she also was not prohibited by the Local Government Ethics Law from participating in and voting on a matter that impacted on her brother's potential employment as a Borough police officer. (Article: "Kilpatrick stated that her brother was not a dependent of hers.")(Video: Time stamp 12:54 through 13:09)

d. During the May 1, 2017 closed session, a straw vote was taken that declared five vacancies in the police department which would be filled by the candidates on the list that included Novak's son and Kilpatrick's brother. (Video: Time stamp 1:39:11 through 1:39:34)

e. When questioned by a representative of the police union regarding the ethical propriety of Novak and Kilpatrick participating and voting on the declaration of five police department vacancies, Labor Attorney Bob Clarke said that while he did not research it himself, Borough Attorney DuPont had said that there was a "solid legal ground" for his conclusion that Novak's and Kilpatrick's participation and voting were not unethical.  (Video: Time stamp 1:39:50 through 1:41:30)

f. The current list of candidates contained no veterans.  (Video: Time stamp 1:45:38 through 1:45:48; 1:48:46 through 1:49:02)

g. As of May 1, 2017, there were veterans eligible to be hired as a Borough police officer, but they could not be placed on the eligibility list unless and until the existing list was returned and new list was created. (Video: Time stamp 1:44:42 through 1:47:12)

h. Any veterans placed on the eligibility list would have been given preference over the other non-veteran applicants when hiring decisions were made. (Video: Time stamp 1:47:45 through 1:48:02)

i. Both Novak and Kilpatrick voted in favor of the public motion to declare the five vacancies. (Video: Time stamp 1:57:53 through 2:00:30)

j. The creation of the vacancies prevented the Council from a new list--one that would include veterans--from being created. (Video: Time stamp 2:00:40 through 2:01:57)

From listening to the recording at 1:49:35 through 1:57:32 and the vote at 1:57:53 through 2:00:30, it becomes apparent that i) by declaring the five vacancies, the Council forced itself to fill those vacancies within a 45-day period; ii) had the Council not then declared the five vacancies, it could have had a new eligibility list certified that would have included veterans who would have been accorded hiring priority over the non-veterans on the list.  Thus, Novak's and Kilpatrick's "aye" votes on the motion to declare the five vacancies inured to the benefit of their blood relatives by helping insure that veterans were excluded from the eligibility list.  In sum, Novak's and Kilpatrick's "aye" votes helped prevent veterans from getting in the hiring queue in front of their blood relatives.

ANALYSIS:

N.J.S.A. 40A:9-22.5(d) states that "No local government officer or employee shall act in his official capacity in any matter where he, a member of his immediate family, or a business organization in which he has an interest, has a direct or indirect financial or personal involvement that might reasonably be expected to impair his objectivity or independence of judgment."

Novak and Kilpatrick appear to argue that N.J.S.A. 40A:9-22.5(i), which defines a "Member of immediate family" as "the spouse or dependent child of a local government officer or employee residing in the same household," somehow exempts them from the scope of N.J.S.A. 40A:9-22.5(d).

Whether or not Novak's son or Kilpatrick's brother resided with these municipal council members or were financially dependent upon them is irrelevant.  Rather, the question turns on whether Novak and Kilpatrick had, at the time of the vote, a "direct or indirect financial or personal involvement that might reasonably be expected to impair [their] objectivity or independence of judgment."  It is plain that a mother (or a sister) has at least an indirect personal involvement in seeing that her son (or brother) receives a desirable position.  And, it is equally plain that a local government officer's relationship with a blood relative "might reasonably be expected to impair [her] objectivity or independence of judgment."  Accordingly, if the Local Government Ethics Law means anything at all, it should not countenance a mother (or sister) voting to give her son (or brother) who seeks public employment an advantage over anyone, especially military veterans.

Further, N.J.S.A. 40A:9-22.5(c) states that "No local government officer or employee shall use or attempt to use his official position to secure unwarranted privileges or advantages for himself or others."  Had the military veterans been allowed onto the list, Novak's son and Kilpatrick's brother would have moved down in hiring priority on the eligibility list.  Their vote allowed Novak's son and Kilpatrick's brother to keep their higher position on the list which is an "unwarranted privilege or advantage."

4. Indicate whether the complaint concerns the complainant in any way and what, if any, relationship the complainant has to the subject of the complaint. 

Complainants have no interest in or relationship to this complaint greater than any other citizen or organization who wishes for all government officers and employees to comply fully with the Local Government Ethics Law.

5. Indicate any other action previously taken in an attempt to resolve the issue and indicate whether the issue is the subject of pending litigation elsewhere. 

No other action has been taken previously in an attempt to resolve this issue and, as far as we know, this issue is not the subject of any pending litigation.

Thank you for your attention to this matter. I ask that you please acknowledge your receipt of this complaint within 30 days.

Sincerely,

/s/ John Paff, Chairman
New Jersey Libertarian Party's
Open Government Advocacy Project