By letter dated July 3, 2012, the New Jersey Local Finance Board cleared Wrightstown (Burlington County) Mayor Thomas Harper and his wife Mary Karen Harper of violating the Local Government Ethic Law for testifying in support of a land use application regarding a property adjacent to the Harpers' residence while both Harpers served on the same board that heard the application.
The matter was initiated by a November 25, 2011 complaint filed by John Paff, chairman of the New Jersey Libertarian Party's Open Government Advocacy Project. The complaint alleged that both Harpers served on Wrightstown's Joint Land Use Board when the Board met on April 14, 2009. At the April 14, 2009 hearing, the Board was considering a site plan application regarding 56 West Main Street which is next door to the Harpers' residence at 54 West Main Street. Immediately prior to the hearing, both Harpers recused themselves from the matter but were both sworn in to testify in favor of the application. After the Board approved the application, both Harpers rejoined the other board members on the dais.
In support of its complaint, the Libertarian Party cited an appellate level, unpublished opinion in Beacon Hill Farm, LLC v. Township of Marlboro, 2006 WL 1661361 (Law Div. 2006). That case considered the question of whether a council president, who recused himself from participating in proceedings to enact a zoning ordinance, could sit on the dais and conduct the meeting. In that case, the court ruled that the council president should have "physically remove[d] [himself] from the presence of the public body and leave the room until consideration of the topic which caused the recusal is complete." The court further held that participation by a recused official "poisons the board’s quasi-judicial proceedings.”
The Local Finance Board, while recognizing the Beacon Hill Farm case, noted that it was decided under the Municipal Land Use Law rather than the ethics law. The Board stated that it "historically . . . has not made the recommendation that a local official who recused him/herself from the dais be required to leave the room during an open public comment meeting." Accordingly, the Local Finance Board ruled, "once Mayor and Mrs. Harper removed themselves from the official action of the Joint Land Use Board, they were representing themselves concerning their own interests."
The Libertarian Party's complaint and the Local Finance Board's dismissal letter are both on-line here. We hope that publication of this complaint will help local government officers better determine the contours of the Local Government Ethics Law.