Proximity to Property and the Appointment of Zoning Board Members

According to <a href="http://www.northjersey.com/news/114992909_Clifton_ruling_due_on_ethics_…; target="”_blank”">an
article in <i>The Record</i> this week</a>, a Clifton, New Jersey council
member is being accused of dealing irresponsibly with a conflict by
participating in a discussion about, although not voting on, the
reappointment of two members of the city's zoning board. The conflict
is an unusual one. The council member lives near a house that a group of
Orthodox Jews are seeking to turn into a synagogue, and she has
organized a group to oppose this use of the property. The two zoning
board members have also opposed this use of the property as part of a
majority that has apparently refused to even hear the group's request.<br>
<br>

There are three issues here. First, does this constitute a conflict
with respect to a discussion of and vote for the appointment of zoning board members? There
is no doubt that a council member who lives near a property under
discussion, especially if changes to the property might affect the
value of her property, should withdraw from any matters having to do
with that property. But is the appointment of zoning board members such
a matter? This might be a big issue in town, but it is only one of many
matters a zoning board member will deal with.<br>
<br>
Were the discussion about their appointment to include a discussion of
the members' position on the synagogue, then the council member should
not participate in that part of the discussion. But I don't think that withdrawal
from the entire discussion would be necessary, nor do I think the
council member should refrain from voting on the zoning board members'
appointment.<br>
<br>
Second, there seems to be more emphasis placed
on the council member's opposition, which is a policy issue, than on
her home's proximity to the proposed synagogue. I don't think her
advocacy against the synagogue in any way gives rise to a conflict. She
is elected to take strong positions on issues. I don't think it's right
to start an organization such as this as a sitting council member, but
support for a neighborhood organization does not require withdrawal
from involvement in the matter when it comes before the council. Judges are expected to be impartial, but not elected officials.<br>
<br>
It's important to recognize that government ethics is concerned with fairness and corruption, with officials using their office to help themselves, their families, and their business associates. It is not concerned with officials using their office to push their policy positions. To the extent an official takes a controversial position, even if based on personal prejudice, this is a political, not a government ethics issue.<br>
<br>
Third, people are arguing that the two reappointed zoning board members
should withdraw from any discussion about the synagogue, due to the
council member's failure to withdraw. I do not think that this would be an
appropriate penalty were an ethics violation to be found. First of all, the zoning board members themselves
have no conflicts, and they have already been dealing with this matter,
so nothing has changed for them. Second, I don't think that the council
member's participation in the discussion taints the matter so much that
the zoning board members should be affected. The fact that she did not
vote on the reappointments, and yet the council voted to reappoint,
mitigates the taint.<br>
<br>
Generally, the vote on a matter where a member is conflicted should not
be taken into account. But that is when the conflicted member votes.
Here, the conflicted member recused herself from voting. So the vote
does matter.<br>
<br>
It is clear that there is a serious controversy in Clifton over the
synagogue, but government ethics does not seem the right area to play
out the antagonisms that arise from it.<br>
<br>
There is one interesting side-issue here. Opposition to a place of
worship, especially that of a group, like Orthodox Jews, who have a
strong reason to live very close to their place of worship, is not
primarily to protect the value of individuals' property, as with most
zoning issues, but rather to protect against the change in the
neighborhood's composition. This is an area where a purely monetary
definition of "interest" or "benefit," which is very common, is
insufficient. Given a purely monetary definition, it could be argued
here that the council member's property value would go up due to more
demand from Orthodox Jews and, therefore, that she has no conflict. Yet
another reason not to limit conflicts to instances where an official
stands to benefit monetarily.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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