Wednesday, January 24, 2018

Ocean County fire commissioner fined $100 for holding incompatible offices.

On October 19, 2017, an Administrative Law Judge upheld a $100 fine assessed against an Ocean County fire commissioner who was found to have violated the Local Government Ethics Law (LGEL) by serving as president of his volunteer fire company at the same time he served as fire commissioner.  The judge upheld the fine even though the fire commissioner had received an opinion from the fire district's lawyer that it was permissible for him to hold both the president and commissioner positions simultaneously.

According to filed documents, David Mizrahi was the president of Station 64, a volunteer fire company in Lakewood Township (Ocean County), when he took office as a fire commissioner of the Lakewood Fire District No. 1 on March 3, 2015.  On March 30, 2015, Mizrahi sent an e-mail to Norman Douglas Smith, the fire district's lawyer, following up on a previous conversation they had regarding a possible conflict of interest that might arise if Mizrahi simultaneously held both the president and commissioner positions.  In a May 6, 2015 e-mail, Smith wrote that it was permissible for Mizrahi to hold both positions provided that he "abstain from voting or participating in discussion about any issue dealing with the volunteer fire department" and "vocally express" his abstentions and ensure that his abstentions were recorded in the meeting minutes.

In its May 11, 2016 Notice of Violation, the Local Finance Board, the principal enforcer of the LGEL, found that offices of fire commissioner and fire company president were inherently incompatible and that Mizrahi violated LGEL by holding the two offices simultaneously.  The Board relied upon a February 8, 1995 Advisory Opinion in holding that Mizrahi's dual office holding "might reasonably be expected to prejudice his independence of judgment in the exercise of his official duties [and] might reasonably be expected to impair his objectivity or independence of judgment."  The Board assessed a $100 penalty and Mizrahi exercised his right to an administrative hearing.

In her October 19, 2017 decision, Judge Sarah G. Crowley upheld the finding and penalty and noted that Mizrahi's reliance on Smith's advice might have been a valid defense had Mizrahi received Smith's advice prior to taking office.  She noted that he "did not receive advice from counsel until two months after his dual service began" and did not even request advice until March 30, 2015. "Thus, he is not entitled to a defense on that basis," she wrote.

The case against Mizrahi was initiated by a June 15, 2015 complaint filed by Middletown attorney Larry S. Loigman.  According to a letter from the Fire District's Business Manager, Loigman served on the Board of Fire Commissioners from March 2012 to February 2015.