Montclair, NJ – Recent conflict of interest allegations leveled at Montclair Councilor Peter Yacobellis are the latest in a long history in Montclair.
When Mayor Sean Spiller served as Montclair’s Third Ward Councilor, a judge in Essex County Superior Court ruled, in a victory for Montclair Kids First, that Spiller, a top official of the New Jersey Education Association, must step down from his seat on the Montclair Board of School Estimate.
Spiller, responding to the February 2016 ruling, stated that the judge “noted only that because some may perceive my BoSE service as creating a potential for conflict, he was not comfortable my continued service on that board.”
At that time, Mayor Robert Jackson said “as I understand it, Judge Moore ruled that Councilor Spiller’s position with the NJEA created a conflict with his Council appointment to the Board of School Estimate. The Council, including Councilor Spiller, were advised differently, but His Honor’s opinion rules the day and I respect it.”
Back in April 2016, in the lawsuit Richard Grabowsky vs. The Township of Montclair, the court ruled for the plaintiff that a conflict of interest was present in the previous township council, due to Mayor Jerry Fried and Councilor Nick Lewis being members of the church adjacent to the planned Kensington Montclair Assisted Living property.
Former Montclair township attorney Ira Karasick said, at that time, it was his opinion that Fried and Lewis did not have a conflict of interest and therefore did not need to recuse themselves. Still, Karasick advised the Kensington developers to have their lawyers look at the situation as well; they concurred with Karasick. Ultimately Grabowsky sued and construction of the assisted living facility was delayed four years due to litigation. Grabowsky won his suit in what Karasick now describes as a landmark decision, effectively changing the law. Kensington abandoned their plans and a new developer stepped in, bringing instead a mixed-use retail and residential building to the 65 Church Street site.
Lackawanna Plaza
In June 2019, One Greenwood LLC and A Better Lackawanna filed a complaint against the Montclair Planning Board and the Township of Montclair regarding their approval of the Lackawanna Plaza redevelopment application.
The 2019 complaint includes an alleged conflict of interest with regard to Second Ward Councilor Robin Schlager’s involvement in the process, as council’s appointee to the Planning Board. The complaint cites that Schlager, immediately prior to the Defendants’ vote, recused herself from the proceeding.
In February 2023, the Superior Court of New Jersey, Appellate Division, denied the appeal by plaintiffs One Greenwood LLC and A Better Lackawanna. The Court concurred with Judge Lynott’s finding that there was no conflict of interest requiring the board member [Schlager] to recuse herself because she was “a duly appointed ‘Class III’ member of the board appointed as such by the governing body in accordance with N.J.S.A. 40:55D-23(a).”
The February filing also states there was nothing in the record showing Schlager had “a personal or pecuniary interest in the project.” The judge found no evidence to contradict the member’s reasons for recusal and plaintiffs failed to show the member’s “participation in the review of the application was infected by disqualifying bias or prepossession requiring her recusal or withdrawal.”
Although One Greenwood and A Better Lackawanna lost their appeal, Cary Heller, of One Greenwood, LLC, characterizes it as a victory.
“We won the appeal in the context that the plan will never be built — a benefit to Montclair,” says Heller of the previous Lackawanna Plaza plan. “Now Montclair has to consider a new, badly designed plan and Montclair government has fumbled the new redevelopment process.”
The new Lackawanna Plaza proposed redevelopment plan, reviewed by both the Planning Board and Historic Preservation Commission, has engendered controversy and division in town with a petition against the project’s density, heights and impact on the surrounding neighborhood, as well as a petition to see the project move forward.
At the last Montclair Council meeting, residents David Herron and Martin Schwartz made conflict of interest allegations against Councilor Peter Yacobellis during public comment. Schwartz said Yacobellis’ role as founder and executive director of Out Montclair poses a conflict of interest, because the organization received a 2022 donation from Lackawanna developer BDP Holdings.
In his comments, Herron cited this New Jersey ethic law, which states, “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.”
Herron said a formal complaint had been filed with the New Jersey Attorney General’s office.
Montclair resident Anson Pope, who opposes the Lackawanna Plaza redevelopment plan, also addressed Yacobellis during public comment.
“We attempted to meet with you and forestall this. You, under advisement of counsel, chose not to. It’s unfortunate that you’ve been put in this position,” said Pope.
That meeting is mentioned in a January 13th email to Yacobellis from Schwartz that Pope and Herron are copied on, along with Cathy Renna and Aminah Toler. Schwartz writes:
Peter — a small group of your political friends and supporters are asking you to attend an important private meeting with us sometime this coming week. There is an information reveal and political legal demand that is about to go out to the local media concerning the Lackawanna Redevelopment and other related issues. This would be very damaging to your reputation and standing with all of our various leadership positions, both given your role on the Town Council, and as Executive Director of Out Montclair. It would undermine much of the good government efforts you’ve undertaken to date and resident good-will subsequently created. Which we support.
Our goal is to help you preempt this media reveal, stop it as an accusation and instead, assist you to set things right. We want to have this conversation with you ASAP in person and private as a group and not any individual exchange, or communication about it prior. So, we would like us all to come together for a short meeting — sometime over the coming days.
The meeting never happened. Schwartz, Herron and Pope made their allegations regarding Yacobellis at the Tuesday council meeting; on Friday, February 24, Renna and Toler publicly resigned from Out Montclair’s advisory committee.
In a resignation statement, Toler said: “My involvement with various community organizations coupled with my current place of employment have led me to this decision. As I must ensure that my name, organizations I am part of and partner with remain in good standing. Not knowing the future of any grievances, violations, and/or ethical conflicts of interest violations that may arise, I am respectfully asking that my name be removed from the OM website as a community volunteer, effective today.”
Renna stated: “I resign immediately, after much thought and counsel and considering an ongoing lack of transparency, the appearance of ethical conflicts of interest and potential for more serious violations on the part of our executive director, Peter Yacobellis.”
Out Montclair and Councilor Yacobellis
Yacobellis was one of the cofounders of Out Montclair, a nonprofit launched in 2021. He served as its volunteer president, but was appointed to executive director, a salaried position, in December 2022. Out Montclair confirmed that Yacobellis is paid $85,000 per year and has an opportunity to earn bonuses based on overall organizational performance goals.
According to Karasick, it doesn’t matter that the sponsorship from BDP Holdings for the 2022 Montclair Pride event happened months before Yacobellis became an employee of Out Montclair.
Karasick said, in his opinion, there is a conflict of interest, because Yacobellis is a key figure in Out Montclair, both as a co-founder and president, before becoming the organization’s paid executive director.
“Given the fact that BDP Holdings will be negotiating with the town, he [Yacobellis] can’t participate in any matters involving BDP,” Karasick said.
Montclair’s acting township attorney Paul Burr was not willing to give an opinion at the meeting when pressed by Fourth Ward Councilor David Cummings after Herron’s comment.
“I think that’s because he has to research it,” said Cummings of Burr’s response. “His answer was vague, but he did say if there is a perception of a conflict, his advice was recusal.”
“I think rather than having attorneys offer their opinion without knowing all of the facts, it’s better to listen to those who do know all of the facts,” said Yacobellis. “I have been and will continue to be guided by legal counsel and an opinion based on current New Jersey conflict of interest case law. I think going beyond existing case law to appease a small group of individuals, led by someone who may not have standing in Montclair, and who have, as a group, been vociferously opposed to the redevelopment plan for Lackawanna, risks undermining the responsibilities the people elected me to perform as one of only three town-wide representatives.”
Yacobellis said he is concerned about the precedent a recusal would set, given that it is common for members of the Council to be involved in local non-profit organizations. He sent a cease and desist letter to Schwartz, obtained by Baristanet, on Wednesday [Schwartz’s response: “It’s lovely to hear opinions from interesting people trying to deflect away from the real issue.”].
“I think asking questions about conflicts of interest is a requirement of the public and the press in holding all of us accountable,” said Yacobellis. “Accusing someone of public corruption without the facts is unacceptable.”
Whether or not a conflict of interest is proven, could Montclair’s Lackawanna Plaza get tied up in yet another legal challenge?
“I want to assure people I will keep all options open as I continue to seek and receive expert guidance,” said Yacobellis. “A large scale project with affordable housing that structurally protects economic diversity in Montclair; delivering a grocery store to constituents in a food desert; and the incredible work that Out Montclair does, are all things that are much more important and bigger than me.”
40A:9-22.3 (b) ”Business organization” means any corporation, partnership, firm, enterprise, franchise, association, trust, sole proprietorship, union or other legal entity;
40A:9-22.3 (d) “Interest” means the ownership or control of more than 10% of the profits, assets or stock of a business organization but shall not include the control of assets in a nonprofit entity or labor union;
Frank R – this is what is really going on here:
40A:9-22.5. Provisions requiring compliance by local government officers or employees, under the jurisdiction of the Local Finance Board shall comply with the following provisions:
a. No local government officer or employee or member of his immediate family shall have an interest in a business organization or engage in any business, transaction, or professional activity, which is in substantial conflict with the proper discharge of his duties in the public interest;
Given that Montclair appellate ruling on the Fried and Lewis connection to the Church, which is far more removed than Yacobellis’s fiscal connection to Placek/DBP, first as the Out Montclair Board President, then getting a salary as Executive Director, his Lackawanna situation is very clear to warrant recusal. As that former town attorney Ira Smith, notes in the story.
Lawyers can be a real hoot.
After all his bluster & blather, he signs off with “Very Truly Yours,“.
Maybe he thinks it will help him get referrals from Martin.
spot,
When did Ira Smith pass the bar? Impressive, an architect and a lawyer in his spare time.
OMG. I’m not a lawyer. Never studied law. I stayed at a Holiday Inn Express 20 years or so ago. I am familiar with the case and the subsequent appeals. Try reading them. Seriously. You missed a few facts. Then we can have an intelligent conversation between laypeople.
BTW, we in Montclair, probably Essex County too, try not to take the New Jersey Department of Community Affairs, much less it Division of LGS, seriously.
We always thought DCA/LGS existed to raise employment numbers for Mercer County. I’m making a joke.
Didn’t they manage the NJDBIZ loan program the MCC participated in? Maybe not.
FYI, This is the same braintrust that keeps tabs on municipal share services agreements and sets rules & guidelines for municipal contracts, e.g. the Glen Ridge fire contract.
85 grand per year plus bonus!?!? What a great gig!! Tony Soprano would be so proud.
Seems there are two Ira’s in this tale. Ira Karasick, the former township attorney who opined in the story above. And Ira Smith, the town’s redevelopment consultant who helped draft the Lackawanna Redevelopment Plan. I mixed the two up in my comment.
“What’s in a name? That which we call a rose/ By any other name would smell as sweet…”
— William Shakespeare
But here’s the best line from Shakespeare for Yacobellis. Because you’d think he’d just want to recuse himself like officials do all the time. To avoid the hassle, or bad image.
“The lady doth protest too much, methinks”…
Forget the non-profit BS in the story. Why didn’t he really do it?
Spot,
Did you read the resignation letters of the two Out Montclair Advisors? Absolutely priceless content! And the timing!
Councilor Yacobellis must have been absolutely delighted with these gifts placed at his doorstep. I’m still laughing at those letters. Almost every paragraph adds a dot for me to connect. TMI for their purposes. Myself? Like watching Indy or NASCAR for the crashes.
Phew! I thought I missed the 990s.
Frank,
Thanks a lot! I didn’t want to but I held my nose and read the resignation letters. Shakespeare didn’t immediately come to mind but Spot can weigh in on that. For me, it was Gomer Pyle; “Oh what a tangled web we weave when first we practice to deceive.”
And of course Russell Crowe in Gladiator, “Are you not entertained.”
I’m getting low on popcorn.
It is addictive! Oh, reminder – we’re in Montclair. You’re running low on crudités, right?
Personally, I prefer fresh out of the oven pretzels with a spicy honey mustard dip and a pint.
That the same group of people who are organized and opposed to Lackawanna Plaza on social media, seemingly coordinated this hit job on Councilor Yacobellis with warning is very concerning and possibly illegal. Is there a reason their email couldn’t have said: “Dear Councilor Yacobellis, we’re concerned that you may have a conflict of interest…. X, Y reasons…. we expect you to do your due diligence here and review the circumstances with counsel and do the right thing.” What is a “political legal demand”? That’s bordering on extortion. The email from Mr. Schwartz and the group is really inappropriate and went too far. I would have done more than a cease and desist.
A little history (2016). Spiller continues to claim (as noted here) that Judge Moore said, “some may perceive” a conflict. This is not what he said and if you read the full ruling, you can see this. Also of note, Ira Karasick also ruled on the Spiller case (incorrectly), which led to the case moving on to Judge Moore’s court.
Jon: I did find it funny that they quoted Ira as their conflict of interest expert. In the same article they noted two different instances where he advised the township incorrectly on a potential conflict. If you remember right, Grabowsky’s lawsuit ended up being very expensive for the township as they had to pay his legal bills when they lost.
1. https://www.northjersey.com/story/news/essex/montclair/2017/08/14/court-montclair-township-off-hook-fees-developers-lawsuit/565165001/
2.Ira K wasn’t the attorney.
We all make mistakes.
Huh? Ira Karasick WAS the attorney of record. He represented the Town (defendant). Grabowsky (plaintiff) was represented by Jonathan Guldin. It’s clear from the article.
Jean O — what public policy world are you living in? Asking, even demanding an elected official to meet with residents today and listen to their concerns, is now “extortion” and “possibly illegal” as you say?
Hah… When the purpose is to tell that official to recuse themselves. To prevent a public blow-up over their seeming conflict of interest created under law? As the former town attorney says it is above?
The residents involved didn’t stand to profit personally from trying to stop Yacobellis supporting, then voting on Lackawanna. Which he shouldn’t have, it appears. There was no monetary gain for us. Possibly for the Councilor, as the law alludes to and so the courts say recuse, to avoid even the appearance of a conflict.
The fact is we were actually trying to help Peter. And he refused to listen to those ethical concerns. His own supporters at the time. He knew what the meeting was about. Bad call.
Regardless, you win the prize hands down now, for best convoluted political logic, as a moral sidestepping comment.
@Calvin Williams Jr.,
Please point me to where Mr Karasick was litigating the original suit, the appeal or filing for legal costs. Martin can weigh in because he was quite vocal on the matter and knows well all the parties and particulars. Thanks.
@montclairskier,
Sorry, not here that often, but was just told by a friend to look at the Robinson story, lol. Yeah, Karasick is much better suited as a soccer coach for 3rd graders. He should have stuck with that. Amazing some folks still can’t use the googles and ask others to do it for them…
I do not think Ira Karasick was the attorney of record for the township on the Grabowsky case. That’s because he himself, had a conflict from having represented Grabowsky privately before in something — if my memory is correct. So, I believe the case for the township was handled instead by outside counsel Genova Burns. And they were the Montclair Counsel of record. The part of the case against the Planning Board, I know was handled by their attorney, Art Neiss.
However, the most interesting thing about this case as it relates to today — was that Karasick’s first take back then was that because of the seemingly minimalist connection Mayor Fried and 3rd ward rep Lewis had to the next door church in relation to developer-applicant’s proposed assisted living facility (who was seeking a “use” change to allow that business), for him and as he’s said the applicant’s lawyers, there was no conflict of interest.
Not so, said the Appellate court. Just Fried and Lewis being an “elder” of the Church next door and the Mayor then stating publicly, that he might even consider putting his mother into that proposed Assisted Living facility, was enough for the court to rule that there was a potential conflict, which could sway the impartiality of Fried and Lewis’s voting judgement.
That’s why, one could assume, Karasick now says that this court ruling pushed the law bar for a conflict standard even further, and therefore why — because of Councilor Yacobellis’s much closer economic relationship to the Lackawanna project, being simultaneously president of a non-profit soliciting and receiving donation monies from the Developer’s company in 2022, then becoming its Executive Director of the organization, all the time he was working with the developer on their project parameters which Placek and company advocated, which then appeared in the Council’s proposed Redevelopment Plan — that Yacobellis really should have had nothing to do with the project.
And further, as Karasick has opined, that Peter’s then timing public explanation — that Out Montclair then received no monies from the Developer, once he became ED a few months later — is just not impactful to a likely conflict of interest takeaway under the statutes. As he and others believe.
Land use law is very complicated and nuanced. Which is why IMO, the courts use the conflict of interest laws, when an elected or appointed official has any connection to a proposed project in a municipality — as a clearer and constant standard it appears, to decide on cases in a number of court case rulings.
You’re right – town was represented by Genova Burns and another atty, whose name I don’t recall. Thanks for correcting the record.
I never said that Ira represented the township in that case. When that application was under review he was the township attorney and the planning board attorney. Ira seems like a nice enough guy, just thought it was funny to use him as the conflict expert in this story.
I’d like to get the facts straight, particularly concerning the history of the matters discussed.
Frank Rubacky and Martin Schwartz are correct, as is Martin’s analysis of the current situation. I had no involvement in the Grabowsky litigation. Before I became Township Attorney in October, 2010, I was Richard Grabowsky’s attorney. As such I did not participate in any matters in which he or his properties were concerned. Prior to the Grabowsky lawsuit, I did not believe that Mayor Fried’s and Council Member Lewis’s membership and sometime leadership positions in the Unitarian Church abutting the redevelopment area constituted a disqualifying conflict of interest barring them from voting when the Council amended the Hahne’s Redevelopment Plan to allow an assisted living facility as a permitted use. I did, however, suggest to the redeveloper’s attorney that they reach their own conclusion, which they did. Subsequently, when Grabowsky filed a lawsuit, the trial judge and then three appellate judges held that there was no conflict. The Supreme Court unanimously found otherwise, making new law on the issue of imputing a nonprofit organization’s statutory conflict to persons in volunteer leadership positions and generally broadening the conflict of interest rules for municipal officers.
Jon Bonesteel, I’m glad you remember that I coached your daughter Jane so many years ago in rec soccer, and I hope she is doing well. You brought up Judge Moore’s opinion in the Board of School Estimate case brought by Montclair Kids First back in March 2015. Judge Moore did indeed hold that then-Councilor Spiller could not sit on the Board of School Estimate because of his leadership role in the NJEA. The lawsuit had demanded that Spiller resign from the Board of School Estimate or that the Council remove him. Spiller would not resign and retained his own attorneys to defend him at his own expense. If I remember correctly I did not participate in the suit after the initial filings. I believed that the Council did not have jurisdiction over complaints filed under the Local Government Ethics Law (which was exclusively vested with the Local Finance Board) so it should take no action. I also thought that the Board of School Estimate had an extremely limited role in the school budget process, and was barred by statute from tampering with CNA’s (collective bargaining agreements between unions and public entities) that had been negotiated by the Board of Education. Thus I could not opine that Councilor Spiller had a disqualifying conflict, but Judge Moore disagreed.
Now to Councilor Yacobellis, since I was quoted (correctly but incompletely) in the article. This is not about Councilor Yacobellis’ integrity or the bona fides and good works of Out Montclair. A disqualifying conflict of interest does not require any misconduct by the official or anyone else, actual, intentional or unintentional. Nor did I mean to suggest any such thing. The facts as I see them are admitted. They are: BDP Holdings is the owner and seeks to develop the Lackawanna property. To that end, BDP is negotiating with the Council to have a redevelopment plan ordinance adopted which permits the project that BDP wants. Peter Yacobellis is a founder of Out Montclair, has identified with the organization publicly since its inception, and is now the paid Executive Director. BDP Holdings contributed $40,000 to Out Montclair to sponsor the Montclair Pride festival in 2022, according to Out Montclair’s 2023 sponsorship brochure. Based on those facts alone, I believe that Councilor Yacobellis has a disqualifying conflict of interest with regard to any matters involving the Township and BDP Holdings, including of course the Lackawanna redevelopment. These are my thoughts, in answer to Liz George’s question. It is not a formal legal opinion.
Martin,
A very well written post. H/e, it begs clarification in making the ethics violation claim.
The Council is following the Local Redevelopment and Housing Law (“LRHL”), N.J.S.A. 40A:12A-5 in writing the Redevelopment Plan, not MLUL. To your point, land use law can be complex. Especially to us laypersons.
As such, Mr Placek is legally just the property owner. I won’t bore with more detail. The Council is technically pursuing the property owner who has not entered into any agreement yet.
In short, and as I have posted earlier on the ethics law language, there is no ethics issue here.
Martin,
So you understand where I am going, Councilor Yacobellis may, after considering all the facts, choose recusal. But, it will be at the point when the Council vote to designates their redeveloper. This designation & recusal requires Mr Placek, under BDP, to agree to participate in a redevelopment plan. At least initially.
There is always a Plan B, and most likely a Plan C.
But, let’s not get ahead of ourselves.
montclairskier,
You are having a tough thread. Ira Karasick, to my knowledge, was never the Planning Board attorney.
Maybe you are confusing the PB his role with the Historic Preservation Commission?
Speaking of which, you should check out the HPC’s agenda this Thursday. Click though the links. Martin, you will find the attorney’s name that escapes you above.
It’s a small land use world.
I’d like to correct an error. Prior to appointment as Township Attorney, I was Montclair’s Planning Board Attorney for approximately 5 years (no involvement that I recall with the Hahne’s redevelopment), At that time, the Township’s redevelopment work was handled by the firm formerly known as McManimon and Scotland. At some point after I became Township Attorney, I (and the Manager and Council) added the position of Historic Commission Attorney to my Township duties.
Thank you for correcting me.
Hi Martin, did you convey the ethical concerns to Mr. Yacobellis or did you just send the above email? My point is why couldn’t you write that — highlight the concerns. Why did it have to be a meeting? Your whole email makes my skin crawl. You chose political opportunist tactics here instead of being a statesman like you possibly could have been. There’s no sidestepping here. I’m just asking you to be better and go about things better.
So I got my positions right and my timeline wrong. My apologies Ira. I appreciate your thorough explanation.
Jean O — asking in an email (copied in the story above), even demanding an elected official come to a meeting of constituents, especially those who were supporters then, to hear their serious concerns about his actions to date and hopefully preempt those concerns going more public — pushing that official to do the right thing politically — was an excellent way to try and impact the Councilors poor decision-making to date. Especially since he had been warned before by attorneys (as he advised) and yet, stubbornly continued to ignore those warnings about his seeming conflict of interest appearing to date.
Therefore, your reaction to this email ‘ask’, is really unfounded. Because Councilor Yacobellis could have just come to the meeting, listened and decided to do the right thing after. Still recused himself and come away looking like a good government hero. Maintained the individuals and group’s support then and been politically redeemed. We were his political supporters at the time and actually tried to help him.
Instead, sadly, given this article and the prior story and Facebook posts etc., the Councilor now has people questioning his motives and the basis for his actions, with takeaway concerns about his character and behavior, as I see it. That’s because of the law’s very clear focus to avoid even creating the appearance of, or potential for a conflict of interest by an elected official. Exactly what we wanted to try and help him avoid.
“Why not recuse yourself”, is the unsaid question asked today, I believe. And his answer above about concerns over non-profits and Councilors etc. — just not cutting it.
So, lets not get up further on the high horse of faux indignation here, saying my email somehow makes “your skin crawl”, from just asking an official to attend a meeting. Or, your want for more statesmanship somehow, because of some non sequitur, “political opportunist tactics” you write was being used?
Shouldn’t you be more concerned really about Councilor Yacobellis’s personally disparaging remarks made to a constituent in reaction, not political, that he wrote about me in public within the last Baristanet story and on Facebook?:
“What I’ve learned about Mr. Schwartz over the years is he tends to just throw a bunch of stuff at the wall and on the rare occasion when something sticks, he uses that luck to claim credibility. Even a broken clock is right twice a day.” (https://montclairlocal.net/2023/02/montclair-councilor-refutes-conflict-of-interest-allegations/)
Or from a policy standpoint, really incensed about his lawyer’s ‘cease and desist’ letter that David Herron and I received, linked to this story above? A letter that actually tries to stifle constitutionally protected free speech. Speech “outing” his client’s believed, unlawful conflict of interest actions. That multiple attorneys have pointed to, and are now more clearly explained by the prior Township Attorney, in the reader comments above.
“The Supreme Court unanimously found otherwise, making new law on the issue of imputing a nonprofit organization’s statutory conflict to persons in volunteer leadership positions and generally broadening the conflict of interest rules for municipal officers.” – Ira Karasick
Ira, isn’t that new law for in-kind instances specific to that case? There is a ton of differences between the circumstances of that case and the allegations in this instance. And since others are generalizing off that new law, does that mean Councilor Russo has to recuse himself on any union matters before the Council? That would be a fun application of this new law. Bob, how did you vote on the fire department promotions? Bob, how are you going to fund the MFD to service another town? Bob, should you really be voting on resolutions involving union contracts? Bob, if Sean is part of a union related to town business and you are part of a union related to town business?? Oh, and what about any insistence in our municipal contracting or redevelopment agreements that stipulates use of union labor?
Bob, I think, by this logic, you are conflicted from here to kingdom come. Then again, this is New Jersey.
And how many times has Councilor Russo referred to many other union members as his brothers & sisters? How many times has he shown a blatant bias towards financial advancement of unions & their members? One poster on an earlier thread pointed out this fundamental question of is it bad ethics or bad law? What I don’t recall him including is bad application.
Frank,
Conflict law can be maddening when it involves elected officials, and can result in the kind of nastiness we are starting to see here. This is partly because every elected official, particularly in a local government, has numerous ties, business and personal interactions, friendships and feuds with members of the community, as well as principles and preferences that are embodied in their decision making. Not everything that raises suspicion is a disqualifying conflict. It can be difficult to sort out relationships that require recusal.
The NJ Supreme Court has held: “Our conflict-of-interest rules, however, do not apply to “remote” or “speculative” conflicts because local governments cannot operate effectively if recusals occur based on ascribing to an official a conjured or imagined disqualifying interest. Requiring recusals when appropriate does not discourage public-spirited citizens from serving on boards. Dedicated public servants — given proper guidance — will not want to sit in judgment if they are encumbered by a potential conflict.”
“Every case must be examined individually. ‘To be sure, ‘[a] court’s determination ‘whether a particular interest issufficient to disqualify is necessarily a factual one and depends upon the circumstances of the particular case.'”
“A citizen’s right to ‘a fair and impartial tribunal” requires a public official to disqualify himself or herself whenever ‘the official has a conflicting interest that may interfere with the impartial performance of his duties as a member of the public body.’ The question is not ‘whether a public official has acted dishonestly or has sought to further a personal or financial interest; the decisive factor is ‘whether there is a potential for conflict.’ ‘The question will always be whether the circumstances could reasonably be interpreted to
show that [conflicting interests] had the likely capacity to tempt the official to
depart from his sworn public duty.'”
“A conflict of interest arises whenever a public official faces ‘contradictory desires tugging [him or her] in opposite directions.’ This objective inquiry into whether a disqualifying conflict is present dispenses with any probing into an official’s motive because the ultimate goal is to ensure not only impartial justice but also public confidence
in the integrity of the proceedings. See Grabowsky, 221 N.J. at 554.”
The previous quotes, with citations omitted, are taken from Piscitelli v. City of Garfield Zoning Board of Adjustment, 237 NJ 333 (2019), a New Jersey Supreme Court case that came after the Grabowsky decision.
My thoughts on Councilor Yacobellis’ situation derive from these principles. But it’s up to him (or possibly a judge) to decide how they apply to his participation in matters related to the Lackawanna project. Moreover, I don’t think it’s either fair or appropriate to randomly seek out possible conflicts involving other governing body members. The circumstances need to be more particularized, I think. If you start with one council person, is the magnificent seven far behind?
This is what I love about your profession, it is self-polices itself for quality…and by going to a judge or arbiter to who will define what quality standard to create. And I have to agree, absent any other qualities, authority is the best predictor of quality. The judicial branch cleans up the deficiencies of the legislative branch and then the legislative branch cleans up the judicial deficiencies. Eventually all agree it is right until one branch just has to start the cycle over. I get it. But, let’s not mistake this for any reasonable level of quality assurance. Not even a reasonable level of quality control.
I just want someone to go on the record to say if:
b. “Business organization” means any corporation, partnership, firm, enterprise, franchise, association, trust, sole proprietorship, union or other legal entity;
d. “Interest” means the ownership or control of more than 10% of the profits, assets or stock of a business organization but shall not include the control of assets in a nonprofit entity or labor union;
are no longer legally valid definitions. Maybe the NJ Supreme Court could tell us once and for all. I mean if we want all attorneys to consistently provide “appropriate guidance“, I think the least the lawyers could do is settle on their set of definitions instead of the legislature’s. For instance, are union executives working as municipal councilors on related business of the people now unethical?
And just so I am clear, does 40A:9-22.3 apply to all public agencies in NJ? Like, let me think, oh yeah, Montclair Center Corporation?
To bottomline this and what everyone is most concerned about is whether some kind of legal action, where legal types construct a unique set of circumstances that a reasonable person might find to be a conflict (and the conflicted party did not self-police themself as the law directs), basically blowup a new supermarket deal at Lackawanna? Even though I voted for and directed my governing body to make the deal ASAP and will tolerate any more excuses?
And the best legal minds in NJ advise the “client”, when in doubt, yes, when in doubt, recuse yourself? That is the state of appropriate guidance in this State now? And this guidance may be different a week, a month or a year from now depending on the confluence of a unique set of circumstances, in the past, at present, and potentially in the future.
Wow. Just absolutely wow. But, all that aside, a very entertaining post.
And why was Mr Herron (and Mr Schwartz?) quoting old law that had been updated/reinterpreted multiple times by the highest court in NJ? Shouldn’t they have done their homework before speaking out? How can a layperson be assured of receiving appropriate guidance under these circumstances? How can a layperson determine the competency of their counsel? Does the layperson crowd-source the answer? What is a reasonable person to do to make a have a reasonable perception of ethics. Or, are we just going with if it walks like, talks like and quacks like? OK, but let’s look at the attorney fee rates.
A really unnecessary dig Frank.
The two cases quoted above in the newer Piscitelli decision, decided the same way, that there was a conflict of interest, were the Grabowsky case, and another decision quoted prominently within that Grabowsky ruiling — Wyzykowski, 132 N.J. at 525)
So your lament, a snide criticism really that Herron and I should had instead done our homework and referred to newer case law..only referenced back the very same two cases anyway — Grabowsky being the more significant Appellate ruling — which I always used in any of my on-line postings. Sorry…
The NJ Supreme Court basically said two things in the 2012 assisted living facility case. The “new” rule of law it announced was that public officials have to recuse if they hold leadership positions in religious or non-profit institutions located within 200 feet of a property under discussion. More broadly, however, the Supreme Court said the lower court was wrong to have decided Mayor Fried and Councilor Lewis didn’t have conflicts without first allowing the plaintiffs to obtain discovery into those officials’ affiliations with the Unitarian Church next door to the subject property. What that means, basically, is that if someone with legal standing sues to overturn a development ordinance, and credibly alleges a conflict of interest by one or more Councilors that could have affected the outcome, the court likely will allow the plaintiff to obtain discovery (compelled production of documents and the ability to question people under oath) before deciding whether a conflict existed.
I built a lot of “ifs” into that last sentence for a reason. We don’t know what the Council ultimately will approve with respect to Lackawanna. We don’t know if the vote will be 4-3, 7-0, or something in between. We don’t know whether anyone with an alleged conflict will be on the winning or losing side of the vote. We don’t know whether there will be a lawsuit and, if so, what it will allege. All we know at this point, really, is that some usual suspects are lobbing charges in order to obtain a desired political outcome.
There aren’t too many people in town who are in a position to make massive donations to our local non-profits. Many (but not all) of those same people also are likely to be involved, one way or the other, in local development projects. At the same time, it’s certainly not rare for members of our Township Council to have leadership positions in local nonprofits, religious organizations, etc. You never have to squint too hard to find an angle for alleging a conflict if your goal is to make headlines.
Litigation is another story. Of course, it’s easy to imagine circumstances in which the relationship between a donor and the politician is too close and becomes a conflict. It’s just as easy to imagine circumstances in which there’s no conflict. And that’s where the Supreme Court’s ruling that you can’t adjudicate these disputes without discovery becomes so important. Only the people directly involved know what discovery would will show if litigation ensues. And, unfortunately, it would be Montclair’s taxpayers picking up the tab, once again, when issues spill over from the Council chambers into a courtroom.
Snide? No. Disdain. Well-deserved.
Whatever you said online is after the fact attempt to cleanup your mess. I can only imagine the crap on FB.
It is what you said in person, transmitted live on TV34, on the stream when you (& clearly others) sandbagged the Councilor…clearly for the general's public consumption and hopefully, their outrage in return.
You wanted the face time for full attention & effect. You got it. Stop lamenting it didn’t work out well.
Well, you three & more got your face time and you came off…poorly. And then our world-class corporate attorney quickly accessed and read from OLD LAW
Everybody is screaming we created NEW LAW!.
Grabowsky! Rubacky! Wyzykowski! Piscitelli! (The Y of it? I don’t know). Can everyone just agree that quoting the old law is not appropriate guidance and when you do, you come off as dated.
Seriously, try a little bit harder.
Hey Martin,
Look, Peter Yacobellis got his own billing in Tuesday night’s Executive Session resolution, Exception 7. Can’t wait to read those minutes. Is this where the NJ Supreme Court said everyone gets appropriate counsel…or is it too late?
Thank you jeffjacobson. I found your added facts and insights helpful.