Thursday, February 28, 2019

Appellate Division: Ethics complainant lacked standing to appeal dismissal of ethics case.

In an unpublished decision released today, a two-judge panel of the New Jersey Superior Court, Appellate Division dismissed a citizen's appeal of a ruling by the Local Finance Board that a Somerset County fire commissioner "did not violate [the Local Government Ethics Law] when he voted . . . to settle a lawsuit against the [fire district] in which he was a named defendant."  The Local Finance Board is the state agency chiefly responsible for enforcing the Local Government Ethics Law.

The ethics complainant was Jeff Carter and the fire commissioner was James Wickman of the District 1 Board of Fire Commissioners in Franklin Township (Somerset County).  In 2009, Wickman, the fire district and others were named as defendants in district employee Deborah Nelson's discrimination lawsuit.  The sole allegation against Wickman was that he did not respond to Nelson's e-mail alleging that then Commissioner Robert Scheer subjected her to a sexually hostile workplace.  On February 28, 2011 Wickman voted in favor of settling Nelson's lawsuit for $150,000.

Carter, who is Nelson's brother, filed a complaint with the Franklin Township Ethics Board contending that it was unethical for Wickman to have voted in favor of settling a lawsuit in which he was personally named as a defendant.  (Disclosure: I served on the Franklin Township Ethics Board during the time Wickman's ethics complaint was processed.  However, because of my relationship with Fire District No. 1 (I served as a volunteer firefighter), I recused myself from all proceedings regarding the complaint against Wickman.)  The Franklin Ethics Board agreed with Carter and on April 12, 2013 fined Wickman $250.00.

On January 13, 2016, the Local Finance Board reversed the Franklin Board's ruling finding that Wickman didn't have an active role in the lawsuit's defense and didn't face personal financial liability because the Board had provided him with a legal defense and a promise of indemnification.

Carter appealed the Local Finance Board's January 13, 2016 ruling and the Appellate Division, in today's decision, held that Carter had "not established any personal stake in the [Local Finance Board's] decision" and that "absent any showing of particularized harm, [Carter] has no right to judicial review of" that decision.

Thursday, December 6, 2018

Former Dunellen Council member cited for ethics violation.

After a two and a half year investigation, a former member of the Dunellen Borough (Middlesex County) Council was tentatively fined $200 by the New Jersey Local Finance Board (LFB) for failing to publicly disclose on his Financial Disclosure Statement (FDS) two parcels of real estate owned by his wife.

In its November 23, 2018 Notice of Violation, the LFB--the chief enforcer of the Local Government Ethics Law (LGEL)--found that then-Councilman Kevin A. Bachorik failed to list two parcels of real estate--one in Dunellen and the other in Toms River owned by his wife Miriam--on his 2015 FDS. 

The LFB determined that Bachorik "failed to properly disclose his wife's interest in real property . . . in violation of N.J.S.A. 40A:9-22.6(a)(5).  The LFB imposed the minimum fine of $100 for each of the two properties he failed to disclose. 

The LFB dismissed the second count of the March 16, 2016 complaint which contended that Bachorik also violated the LGEL by not listing any source of income in excess of $2,000 for either himself or his wife except for the Borough, where the only position he held was Councilman.  The LFB wrote that "the portion of the complaint alleging that [Bachorik] failed to list sources of income, other than the Borough of Dunellen, for 2014 on your 2015 Financial Disclosure Statement was dismissed by the Board as an investigation could not determine specific sources of income [he] and [his] spouse may have had in 2014."

The LFB also informed Bachorik of his right to contest the fine by requesting an administrative hearing.  The LFB's final decision will not be issued until after Bachorik, if he chooses to contest the fine, has had his case heard by an Administrative Law Judge.

By law, local government officials can be fined between $100 and $500 for each LGEL violations.  The ethics complaint that resulted in the LFB's determination was filed by John Paff and the New Jersey Libertarian Party.

Former Bound Brook Council member cited for ethics violation.

After a more than four-year investigation, a former member of the Bound Brook Borough (Somerset County) Council was tentatively fined $100 by the New Jersey Local Finance Board (LFB) for voting in favor of a resolution which designated a redeveloper for a Main Street property while her in-laws owned that property and her husband, who currently sits as a Borough Council member, had an interest in a business located on that property.

In its November 27, 2018 Notice of Violation, the LFB--the chief enforcer of the Local Government Ethics Law (LGEL)--found that on July 22, 2014 then-Councilwoman Beverly Pranzatelli voted to designate Meridia, LLC as Redeveloper for thirteen lots of property.  Among those lots was Block 8, Lot 9.03 which covers 1 East Main Street in the Borough.  According to tax records, Lot 9.03 was owned by Anthony and Elizabeth Pranzatelli of Bridgewater who are, according the Notice of Violation, Beverly's husband Anthony's parents.  The building at 1 East Main Street also housed Pranzatelli's Audio Outlet LLC.  According to Beverly's Financial Disclosure Statement (FDS), her husband Anthony has an interest in that business.

The LFB determined that Pranzatelli's July 22, 2014 vote violated the LGEL because it "constituted an action in her official capacity in a matter where she had a direct or indirect financial or personal involvement that might reasonably be expected to impair her objectivity or independence of judgment." 

The LFB also informed Pranzatelli of her right to contest the fine by requesting an administrative hearing.  The LFB's final decision will not be issued until after Pranzatelli, if she chooses to contest the fine, has had her case heard by an Administrative Law Judge.

According to her 2018 FDS, Beverly Pranzatelli presently serves on the Borough's Recreation Commission and Library Advisory Board.  Her 2018 FDS also shows that she and her husband Anthony jointly owns real estate at 307 W Main Street and 108 E Maple Street.  Her statement also shows that Anthony has a current business interest in both Pranzatelli's Audio Outlet LLC as well as a business called Pranzatelli Properties.  Curiously, Anthony's 2018 FDS does not disclose an interest in either parcel of real estate or a business interest in Pranzatelli Properties.

By law, local government officials can be fined between $100 and $500 for each LGEL violations.  The ethics complaint that resulted in the LFB's determination was filed on July 25, 2014 by John Paff and the New Jersey Libertarian Party.

Tuesday, October 2, 2018

Burlington judge upholds Eastampton cop's firing.

In an August 28, 2018 ruling, Burlington County Superior Court Judge Susan L. Claypoole upheld Eastampton Township's October 23, 2017 decision to fire one of its police officers for being untruthful during an internal affairs investigation.

According to Judge Claypoole's 21-page written decision, the Eastampton Police Department's Internal Affairs Unit charged Officer Michael Musser with misusing sick time by calling out sick the day before a scheduled vacation in order to make an early morning airline flight to Florida.  He was also charged with failing to notify his supervisors of his "change of confinement," i.e. that he was on his way to Florida and not home during the day he called out sick.  These charges were relatively minor and the Eastampton Police Department sought a three-day suspension for the first and a two-day suspension for the second.

Much more serious, however, was the Department's charge that Musser lied to Internal Affairs investigators about his flight schedule.  For this charge, the Department sought Musser's termination.

Musser pled not guilty to the charges and a hearing was held over three days in 2017 before Township Manager Eric J. Schubiger, who acted as the hearing officer.  Internal Affairs investigators argued that Musser had scheduled a flight to Orlando that would leave Philadelphia at 7:05 a.m. on August 8, 2016.  Yet, he was scheduled to work from 7 p.m. on August 7, 2016 to 7 a.m. on August 8, 2016. So, according to the Department, Musser called out sick for the night shift to enable him to make his early morning flight. 

Musser, however, claimed that his girlfriend had, in March or April 2016, booked a flight that left Philadelphia at 4 p.m. on August 8, 2016 which would have allowed him enough time to complete his night shift.  He said that he called out sick on August 7th because he was in pain from back spasms and that those spasms kept him up most of the night.  He stated that at some point on August 7, 2016, his girlfriend called Southwest Airlines to see about an earlier flight since he had already called out sick and was up most of the night in pain. He said that he left for the airport at about 5:30 a.m.

Internal Affairs officials, however, said that they became suspicious when Musser called out sick the day before a scheduled vacation.  At Musser's hearing, a Southwest Airlines employee testified that there was no 4 p.m. flight from Philadelphia to Orlando on August 8, 2017 and that Musser's flight had been booked on August 2, 2016 and that tickets purchased were always for the 7:05 a.m., August 8, 2017 flight.  She also testified that Southwest's records show that Musser had the skycap print his boarding pass at 4:41 a.m. which contradicted Musser's claim that he didn't leave for the airport until 5:30 a.m.

Musser's girlfriend testified that she booked the 4 p.m. flight (a flight which the Southwest representative testified did not exist) through a travel agent and that she printed out the confirmation e-mails for the 4 p.m. flight and deleted the e-mails.  She said that she did not have the boarding passes "because she does not keep trash and that [Musser's] e-mail account was hacked so she deleted his account and created a new one after [Musser] was advised by Best Buy to do so."  Musser said that he had no record of having taken his laptop to Best Buy because the store "did not take his computer or have any record."

After hearing the testimony, Hearing Officer Schubiger ruled that Musser "misrepresent[ed] the crucial facts concerning when he booked what flight and why he called out sick. Under these circumstances, and despite the lack of prior discipline for such an offense, the penalty of termination is sustained."  Judge Claypool upheld Schubiger's decision and agreed with Schubiger that "the evidence here demonstrates that [Musser] lied when he represented that his August 8, 2016 flight to Orlando was originally scheduled for 4:00 P.M.; he lied when he claimed that the flight was changed after the original booking; and he lied regarding the time of his departure from his home which he claimed was between 5:30 A.M. and 5:45 A.M."

Judge Claypoole also found that terminating Musser was not too harsh of a penalty because the Attorney General Guidelines and case law establish that "truthfulness goes to the heart of the duties of a police officer."

My September 29, 2018 request to Musser's attorney, Anthony J. Fusco, Jr. of Passaic, inquiring as to whether he will appeal Judge Claypoole's decision to the Appellate Division, had not been answered as of this article's writing.  Musser's lawsuit challenging the lawsuit, which contains several pertinent exhibits including Schubiger's written hearing report, is on-line here.

Middlesex Sheriff's Officer charged with 3rd degree theft and insurance fraud.

In a September 30, 2018 Open Public Records Act (OPRA) request to Middlesex County, Libertarians for Transparent Government, a non-profit I serve as executive director, sought a criminal complaint filed against a County Sheriff's Officer who we heard had been recently charged.  In its response, the County provided an unsigned, two-count criminal complaint filed by the Somerset County Prosecutor's Office charging the 41-year-old officer with 3rd degree theft by deception and 3rd degree insurance fraud.

The officer at issue is Miguel A. Figueroa who has worked for the Middlesex Sheriff's Department since June 30, 2008 at a present annual salary of $96,205.  According to an October 2, 2018 OPRA response from Deputy Middlesex County Counsel Jeanne-Marie Scollo, Figueroa remains employed by the Department.

According to the complaint, Figueroa, who resides in North Brunswick, "creat[ed] or reinforc[ed] a false impression that [he] had received treatment and services for insurance coverage reimbursement" from Horizon Blue Cross "when in fact he had received not [sic] services" between January 1, 2014 and October 13, 2017.  The complaint is undated but was issued under a 2018 docket number suggesting that it was filed this year.

Figueroa is presumed innocent of these charges unless and until his guilt is proven beyond a reasonable doubt.

Tuesday, September 25, 2018

State Ethics Board: Swapping appointment votes is ethically OK as long as the one who votes first resigns a few days before the second vote.

After a three-and-a-half-year investigation, the Local Finance Board (LFB), the primary entity that enforces New Jersey's Local Government Ethics Law (LGEL), ruled that a former Westampton Township (Burlington County) Committeeman did not violate the LGEL by voting to appoint a former Mount Holly Municipal Utilities Authority (MUA) Commissioner to a $90,000 fire chief position two months after the Commissioner had voted to appoint the Committeeman to the MUA's $129,492 executive director post.

According to my February 11, 2015 ethics complaint, Westampton Committeeman Robert Maybury voted "aye" on December 12, 2014 resolution to appoint Jason Carty as Westampton Township's $90,000-per-year fire chief and EMS director.  Carty, who had resigned his MUA Commissioner post two days before Maybury's vote, had on October 9, 2014 voted "aye" on a resolution that appointed Maybury as the MUA's executive director.  According to DataUniverse, the MUA pays Maybury $129,492 a year.

In her September 13, 2018 Notice of Determination, LFB Chairperson Melanie R. Walter wrote that the LFB dismissed my complaint (the New Jersey Libertarian Party joined me in my complaint) for "not having a reasonable factual basis" because "Jason Carty had resigned from his position as MUA Commissioner prior to [Maybury's] vote for him to be Fire Chief and EMS Director of Westampton Township."

Accordingly, it is ethically permissible for Maybury and Carty to both act in their official capacities to appoint each other to paid public jobs provided that Carty had the foresight to resign a few days prior to Maybury's vote.  In my complaint I wrote that "[i]f the Board determines that Carty's eleventh hour resignation from the MUA immunizes [Maybury] from what would have been an ethics violation had he not resigned, such a ruling would hopefully prod the legislature to consider strengthening the LGEL to close up this and other loopholes."

According to the MUA's website, Maybury still serves as its executive director.   In a federal lawsuit, Carty claimed that Westampton improperly eliminated his position and terminated him in April 2016.

Thursday, August 30, 2018

Appeals court invalidates Somerville attorney's fee agreement with LAD client

A three-judge Appellate Division panel, in a published and thus precedential ruling, today invalidated a fee agreement between a Law Against Discrimination client and Somerville attorney Brian M. Cige.  According to the opinion, Cige's fee agreement required his client to pay the greater of the following three calculations: a) Cige's hourly rate of $475 for hours worked on the case, b) 37.5% of the net recovery or c) statutory fees awarded by the court or by way of settlement.  In addition, the client was required to pay all costs and expenses.

According to the opinion, Cige billed his client $286,746.67 after she terminated his services and the client filed a declaratory judgment action to have the fee agreement ruled unenforceable.

The panel found that Cige "failed to discharge his ethical obligation" to fully inform the client of the ramifications of such a fee agreement--namely "that if the case becomes complex and protracted, the hourly rate-based fee the client is responsible to pay can approach or even exceed his or her recovery."  The panel also found that Cige did not inform the client of his costs, including what trial court Judge Yolanda Ciccone found to be an "egregious" charge of $1 for each e-mail Cige sent or received.  One of Cige's invoices included a $1,700 charge for e-mails, according to the opinion.

The opinion, which is 32-pages long, should be required reading for anyone who is going to engage an attorney in what could turn out to be protracted litigation.  The opinion also sets forth fee disclosure requirements for other attorney who are taking on Law Against Discrimination cases.