Piscitelli v. City of Garfield Bd. of Adj., 237 N.J. 333 (2019). Conflict of interest issues are often sticky. That was doubly so in this case, which the Supreme Court decided today, since there were not just one but two potential conflicts alleged. The Supreme Court split 4-3, a relatively rare occurrence. Justice Albin authored the majority opinion, in which Chief Justice Rabner and Justices Patterson and Timpone joined. Justice Solomon filed a partial dissenting opinion, joined by Justices LaVecchia and Fernandez-Vina. The majority held that the Court did not have enough information to determine whether a conflict of interest, on either asserted basis, existed, and remanded the matter for further proceedings. The dissenters agreed that remand was required as to one conflict issue, but would have concluded that the other asserted matter did not pose a conflict.
The development applicants of the three lots involved were three trusts, two of which were co-owned by Dr. Kenneth Conte, and the third that benefited Dr. Conte’s nephew, Dr. Daniel Conte III, and two nieces. Besides Dr. Kenneth Conte, another Conte family member who was also a doctor, Dr. Daniel Conte, had an interest in all three lots, directly or through his interest in the trusts.
Plaintiffs, unsuccessful objectors to a proposed development application, filed a complaint in lieu of prerogative writ, seeking to overturn approvals granted by the Board. Among other things, plaintiffs asserted that the facts above gave rise to two conflicts of interest as to Board of Adjustment members.
First, Dr. Conte was a member and, at relevant times, President of the Garfield Board of Education. Five members of the defendant Board of Adjustment were employed by, or had immediate family members employed by, the Garfield Board of Education. The objectors asserted that Dr. Conte’s role with the Board of Education created a conflict with those five Board members. That was so, plaintiffs claimed, even though the two trusts that Dr. Conte co-owned transferred their respective lots to the trust for the benefit of the nephew and nieces. Despite that transfer, Dr. Conte “made his presence known at the Zoning Board hearing and made clear his position favoring the project,” as Justice Albin said.
Second, plaintiffs argued that any Board of Adjustment member who was a patient of, or had immediate family members who were patients of, any of the three Doctors Conte, had a disabling conflict. That alleged conflict was independent of the Board of Education-related conflict, according to plaintiffs.
The Board of Adjustment rebuffed the conflict claims and granted site plan approval and variances. The Law Division upheld the approvals, rejecting plaintiffs’ claims of conflict. The Appellate Division affirmed in an unpublished opinion. Plaintiffs sought certification, raising four issues. The Supreme Court granted certification, limited to the conflict of interest issues, and today reversed and remanded for further proceedings.
Justice Albin observed that “[w]hether a disqualifying conflict of interest required the recusal of any member of the Garfield Zoning Board of Adjustment from hearing the development application is governed by three distinct sources of law: the Local Government Ethics Law, N.J.S.A. 40A:9-22.2; the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-69; and the common law, which is now codified in those conflict statutes and still guides us in understanding their meaning.” He provided a detailed analysis of those sources of law and the key precedents thereunder.
Ultimately, however, the majority found the record insufficient to rule on either of the conflict claims. As to the first alleged conflict, the record did not “disclose the precise statutory powers Dr. Kenneth exercised as a member or as president of the Board of Education concerning the appointment of school personnel, the approval of their contracts, the setting or adjustment of their salaries, or other significant personnel decisions. Nor do we know whether Zoning Board members might have had reasons to apprehend that Dr. Kenneth would in the future vote on such matters–matters that clearly would give rise to a personal interest and the potential for a disqualifying conflict.” The Court remanded to the Law Division for further proceedings on that issue.
Likewise, remand was required as to the “physician-patient” issue. Justice Albin said that “if a Zoning Board member or his or her immediate family member had a meaningful patient-physician relationship with any of those three doctors during or before the Board proceedings, that Board member had a disqualifying conflict of interest” (emphasis by Justice Albin). But what constitutes a “meaningful” relationship “may depend on the length of the relationship, the nature of the services rendered, and many other factors. The determination will be fact specific in each case.” Justice Albin offered some examples to guide the remand, and left it to the Law Division to develop a record and rule on the issue.