Proximity to Property and the Appointment of Zoning Board Members

According to an article in The Record this week, 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.

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.

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.

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.

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.

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.

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.

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.

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.

Robert Wechsler
Director of Research-Retired, City Ethics

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