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Two decisions of the Supreme Court, coming six months apart, first expanded and then narrowed a local government’s use of its power of eminent domain. These decisions will have a profound effect on development and redevelopment in New Jersey for the foreseeable future. In a somewhat eclectic group of decisions affecting the local government practitioner, the Court found definitively that public meetings could be videotaped and that certain portions of the PNC Bank Arts Center could be subject to local taxation. The Court declared the definitive demise of the Fireman’s Rule in New Jersey and found that the theory of progressive discipline did not preclude the termination of an employee for a single incident. While giving attorneys representing subordinate municipal boards more leeway in participating in front of the municipalities of which their boards and agencies are a part, the Court on the other hand clarified that attorneys previously working for the state or a state agency had to comply with the more stringent conflicts of interest law applicable to state employees rather than the more liberal Rules of Professional Conduct related to the topic. The Court rounded out its cases by dealing with other disciplinary issues, applicability of the Conscientious Employees Protection Act, the rules regarding frivolous litigation in respect to a municipality, conflicts of interest in a Faulkner Act municipality and, finally, the limits of a municipality’s ability to recover for generic toxic tort claims. It was a term of contrasting decisions which defied predictability and illustrated that while legal doctrines are universally applicable, the results of that application always depend on the unique factual circumstances of each case. Eminent Domain In the first of the two eminent domain cases, Mount Laurel Township v. MiPro Homes, L.L.C., 188 N.J. 531 (2006), in a six to one decision, the Supreme Court sustained an Appellate Division decision, substantially for the reasons expressed therein, that a municipality has statutory authority to condemn property for open space even if that property is one on which residential development is planned and approved. The lone dissenter, Justice Roberto Rivera-Soto, opined that a municipality would abuse its power of eminent domain by condemning land under development from private owners unwilling to sell their property for open space conservation. Moreover, with respect to any valuation, he felt that in order to make the owner of the condemned property “whole” the fair market value must include acquisition costs and development costs to date, as well as the profit that the land owner could reasonably have been expected to make as a result of the planned development project. The majority, however, determined that the property was to be valued at its fair market value, including any value associated with the land owner’s final Municipal Land Use Law (MLUL) developmental approvals. The Supreme Court adopted the reasoning of the Presiding Judge of the Appellate Division, Steven Skillman, who described the Township of Mount Laurel as a rapidly developing municipality growing by a rate of approximately 1,000 people per year, creating a strain on Mount Laurel’s schools, roadways, police and fire departments and other municipal services. Mount Laurel Tp. v. MiPro Homes, L.L.C., 379 N.J. Super. 358, 362 (App. Div. 2005). The Court was cognizant of the fact that for many years Mount Laurel was a party to exclusionary zoning litigation bearing its name and synonymous with the declaration of the constitutional obligation of a municipality to provide a realistic opportunity through its zoning and other land-use ordinances for the construction of the municipality’s fair share of the region’s low- and moderate-income housing, particularly since Judge Skillman was one of the three judges appointed under Mount Laurel II to hear all affordable housing cases in the state. See Southern Burlington County NAACP v. Mount Laurel Township, 92 N.J. 158 (1983). In response to that original Mount Laurel litigation, an order was entered in 1985 that resulted in placing a large portion of Mount Laurel Township into an overlay zone in which developers were permitted to construct five residential units per acre provided that 15 percent of the units were set aside for low- and moderate-income families. More than a decade later, in July 1998, Mount Laurel’s Governing Body placed on a referendum an open space question to impose a tax of $0.02 per $100 of assessed valuation for the purposes of acquiring open space. The referendum passed overwhelmingly, as did a county and state referendum seeking authorization for the expenditure of additional public funds for the acquisition of open space. With a consultant’s assistance, Mount Laurel adopted an Open Space Recreation Plan as required under the Green Acres Regulations, envisioning both active and passive recreational uses of the open space which it intended to acquire. The plan’s goal was to provide open space to soften the density of development and to provide relief from the stresses of suburban living all as set forth in the Open Space Recreation Plan. In determining which land to acquire for open space, Mount Laurel assigned a priority to the acquisition of large parcels zoned for residential development on the theory that residential development would begin to tax the resources of the municipality. They logically reasoned that if such residential land were acquired, the impact on the municipal resources would be lessened. The property in question consists of a 16.5-acre tract of property on which one house was located. Mount Laurel did not initially include this parcel in the list of properties sought to be acquired for open space. Although MiPro’s predecessor planned to construct an assisted living facility, when MiPro contracted to purchase the property it received approval to construct 23 single-family residential units. Once the governing body became aware that MiPro’s use had changed to single-family residential homes, it added the site to the Open Space Recreation Plan and attempted, unsuccessfully, to acquire the property by negotiation. On May 9, 2002, the Planning Board granted MiPro final subdivision approval memorialized by a resolution adopted June 13, 2002. Being unsuccessful in attempting to acquire the parcel voluntarily, and recognizing that development was imminent, Mount Laurel brought a condemnation action on May 24, 2002, and filed a Declaration of Taking on or about May 31, 2002. During the 22-day period between the grant of final subdivision approval and the filing of the Declaration of Taking, MiPro undertook a significant amount of site preparation work. During the pendency of the eminent domain action, the planning board adopted an amended master plan, which encouraged the acquisition of the maximum amount of open space. On cross-motions for summary judgment, the trial court recognized the township’s ability to condemn the MiPro property for passive open space. Nevertheless, the trial court found that the real purpose for the condemnation was to prevent another residential development in a municipality already under severe development pressure, and that the taking was not based on true public need but solely in response to community sentiment to stop residential development. The court found that while public money could be spent to prevent residential development and preserve open space, the municipality could not resort to the power of eminent domain for these purposes. After dismissing Mount Laurel’s action to condemn the property, the trial court entered a second order awarding MiPro $219,815.14 for counsel fees, costs and other expenses it had incurred in defending against the condemnation action. Mount Laurel filed appeals from both orders. The Appellate Division reversed and concluded that: [A] municipality has statutory authority to condemn property for open space; that a municipality may exercise this authority even though it does not presently have a plan to devote the property to active recreational uses; that the selection of properties for open space acquisition on which residential development is planned does not constitute an improper exercise of the eminent domain power; and that MiPro did not present evidence that could support a finding that Mount Laurel’s decision to condemn its property constituted an abuse of the eminent domain power. The Court reinstated Mount Laurel’s complaint and reversed the order awarding MiPro counsel fees, costs and expenses, remanding the case for an Order Appointing Condemnation Commissioners. In support of its decision, the Appellate Division found the fact that the MiPro property was not designated as open space in the master plan was essentially irrelevant to the issue. The Court noted that although under the MLUL a master plan can contain optional elements including a conservation plan showing open space, the same was only relevant with regard to the adoption of zoning ordinances, not to the exercise of eminent domain power. The Court stated that other statutes authorizing acquisition of land for open space established separate administrative procedures. For example, the Green Acres Program has adopted regulations setting forth a detailed procedure for the creation of a Recreation and Open Space Inventory (ROSI) and a description of the project for which the municipality seeks funding. In this case, Mount Laurel Township had obtained a $400,000 grant for the acquisition of this site through the Green Acres Program. Thus, the Court found that the failure of the Master Plan to identify this parcel as open space was not a bar to the exercise of Mount Laurel’s eminent domain power. The Appellate Division also rejected MiPro’s claim in the case that the condemnation was flawed because the municipality did not proceed for a “D-31″ review under the MLUL. In finding that the municipality can condemn property for open space even though the motive in selecting particular properties is to slow down residential development, Judge Skillman emphasized the fact that the Legislature through a variety of actions has long recognized that the preservation of open space constitutes an appropriate public use and that municipalities may utilize eminent domain to acquire open space. Citing a variety of legislation, the Court found that the Legislature has repeatedly reaffirmed a municipality’s statutory authority to utilize its eminent domain powers to acquire open space. The Court also pointed to the fact that in November 1998, the voters approved an amendment to the New Jersey Constitution dedicating funds from the state sales and use tax for the acquisition and development of land for recreation and conservation purposes as well as farmland and historic preservation. The Appellate Division found that the failure of the municipality to have a plan to devote the land to an active recreational use is not a fatal flaw in the exercise of eminent domain. The Court made it abundantly clear that the conservation of land for open space in and of itself is a public use, even though there are no plans to put the property to any active use. Finally, the Appellate Division found that a court would not upset a municipality’s decision to use its eminent domain power in the absence of an affirmative showing of fraud, bad faith or manifest abuse. Despite the fact that the primary goal of Mount Laurel’s open space acquisition in general, and the acquisition of the MiPro property in particular, was to slow down residential development, the Court found that the same did not reach the level of fraud, bad faith or manifest abuse. The Court found that Mount Laurel had a reasonable basis for concern that additional residential development would aggravate traffic congestion and pollution problems in the municipality and impose burdens on other municipal services. The fact that the developer may have performed site preparation work during the 22-day period between final subdivision approval and the filing of the Declaration of Taking was also not irreparable � Mount Laurel had the ability to restore the site to its natural state. The Appellate Division distinguished this case from Borough of Essex Fells v. Kessler Inst. for Rehab., Inc., 289 N.J. Super. 329 (Law Div. 1995), on the basis that in Kessler, the use of the property implicated significant public interest and the municipality’s attempt to prevent those uses constitutes an abuse of the power of eminent domain. In the MiPro matter, the development was nothing more than single-family homes affordable only to upper-income families, not a comparable public interest. In affirming the Appellate Division’s decision in toto, the Supreme Court emphasized the expression from the citizens of New Jersey of a strong public interest in the acquisition and preservation of open space. The Court was particularly impressed with the numerous statutory enactments over the last five decades, which repeatedly sustained a municipality’s power to acquire property for open space and found that Mount Laurel’s motive in limiting development was “not inconsistent with the motive driving the public interest in open space acquisition generally.” Finally, the Supreme Court directed that the property be valued at its fair market value, including the value associated with the developer’s obtaining final subdivision approval. In a strong dissent, Justice Rivera-Soto disagreed with the majority’s decision on both the ability of the municipality to utilize its power of eminent domain in this instance and, further, the quantum of damages to which MiPro was entitled to under the majority’s ruling. Justice Rivera-Soto, while not expressly stating it, implied that the actions of the township rose to the level of bad faith and manifest abuse and that the acquisition was not based on a true public need but solely in response to public sentiment to stop residential development. Moreover, Justice Rivera-Soto took aim at Judge Skillman’s view of the social value of a single-family home development. In no uncertain terms Justice Rivera-Soto stated: In my view, a judge’s individualized and idiosyncratic view of what is or is not socially redeeming has no place in determining whether the sovereign’s exercise of the power of eminent domain is proper. The issue here was and remains whether the Township � and not MiPro � acted unreasonably, in bad faith, or in circumstances revealing arbitrary or capricious actions. Applying that yardstick, the trial court held � in my view, correctly � that the Township filed to meet its burden. I would not disturb that determination, least of all in the pursuit of some ill-defined social goal. Finally, in rejecting the measure of damages directed by the majority, Justice Rivera-Soto suggested that the proper quantum of damages should include not only restitution damages but also expectancy damages, i.e., the profit that MiPro could reasonably have been expected to reap as a result of the development project. This is clearly a decision that has far-reaching implications. Municipalities now have in their arsenal the ability (although perhaps not the financial wherewithal) to halt development in its tracks by simply acquiring the property. The facts in MiPro were particularly advantageous to Mount Laurel. First, no claim was proven that the municipality slowed down or prevented developmental approval for the project under the MLUL. Indeed, quite the contrary, the planning board granted final subdivision approval to MiPro almost a month before the condemnation action was instituted, despite the fact that the planning board was likely aware of the municipality’s interest in acquiring the property and despite the fact that the planning board knew its grant of final approval would immediately increase the value of the property and therefore the ultimate cost to the township. Thus, MiPro did not have the additional argument that the planning board arbitrarily delayed action on its development plan to artificially deflate the value of the property since the municipality was interested in acquiring the same. It is submitted that the absence of such dilatory tactics necessarily enhanced Mount Laurel’s argument that its motives were pure � it was interested in preserving open space and was willing to play the game by the established rules. If the developer were able to secure developmental approvals, the municipality would have to increase the compensation. If nothing else, such action signaled to the Appellate Division and ultimately the Supreme Court that the municipality was not attempting to artificially diminish the value of the property by not acting in good faith on an application submitted. From the municipal perspective, this case proves the adage that good facts make good law. This was clearly the case to bring the issue squarely before the Supreme Court and the Court’s sustaining the Appellate Division’s determination is testimony to good lawyering on an otherwise volatile issue. Left open under this decision is the extent to which other public interests would have to be balanced against the public interest of acquiring open space for conservation purposes. The Supreme Court suggested that were the development one of assisted living or rehabilitation such as in Kessler, the balancing act may have been much more difficult. Here, the construction of a run-of-the-mill subdivision did not carry with it the level of public need or public interest as would a rehabilitation or assisted living facility. The question also remains open as to whether the results in this case would have been different had the development application approved by the Planning Board included an affordable housing component. Given the Supreme Court’s continued support of the construction of affordable housing under the original Mount Laurel Doctrines and the Fair Housing Act, it is questionable as to whether the municipality would have been able to successfully support a condemnation of an inclusionary development that provided affordable housing for low- and moderate-income families. It is worth repeating � good facts make good law. Juxtaposed against the Supreme Court’s determination in Mount Laurel Township v. MiPro Homes, LLC, 188 N.J. 531 (2006), comes its decision six months later in Gallenthin Realty Development, Inc. v. Borough of Paulsboro, 191 N.J. 344 (2007), where the Court invalidated Paulsboro’s expansive reading of the term “blighted” as used in the Local Redevelopment and Housing Law (LRHL), where the sole basis for the declaration was that the property is “not fully productive.” In so finding, however, the Court did not invalidate that section of the redevelopment law upon which Paulsboro relied, but instead interpreted the same in a different way to save its constitutionality. In an extremely well-written opinion, Chief Justice James Zazzali traced the evolution of the LRHL from its constitutional underpinnings in the 1947 Constitution to its current configuration, focusing particularly on the definition of “blight.” Article VIII, Section 3, Paragraph 1 of the 1947 New Jersey Constitution provides in pertinent part: The clearance, replanning, development or redevelopment of blighted areas shall be a public purpose and public use for which private property may be taken or acquired. Municipal, public or private corporations may be authorized by law to undertake such clearance, replanning, development or redevelopment; and improvements made for these purposes and the uses, or for any of them, may be exempted from taxation, in whole or in part, for a limited period of time . . . The conditions of use, ownership, management and control of such improvements shall be regulated by law. (emphasis added). After tracing the history of the various definitions of “blight,” beginning with the 1938 writings of “an influential urban planner,” the Court moved to proceedings related to the drafting of the 1947 Constitution and quoted extensively from particular hearings of the New Jersey Constitutional Convention of 1947. Delegate Jane Barus, who sponsored the Blighted Areas Clause, described the common situation where particularly older cities in the state have fallen into depressed times due to a variety of factors, including population shift, overcrowding, changes of use, and so forth. She noted that these depressed areas generally go steadily downhill with the deterioration in values affecting the entire neighborhood and contended that no individual person is able to counteract the spread of this deterioration because that investment is so small so as to prove meaningless against the “tide of deterioration.” As a result of this history, the Chief Justice found that the inclusion of the term “blighted areas” in the 1947 Constitution connoted an area that illustrated the continuing decline of neighborhood values. The 1947 Constitution formed the underpinnings for the enactment of the LRHL, N.J.S.A. 40A:12A-1 to -49, allowing municipalities to declare areas “in need of redevelopment,” thereby subjecting the same to the exercise of the state’s eminent domain power. The statutory section at issue in this case is that part of the LRHL which permits a municipality to classify a land “in need of redevelopment” if it finds a “growing lack or total lack of proper utilization of areas caused by the condition of the title, diverse ownership of the real property therein or other conditions resulting in a stagnant or not fully productive condition of land potentially useful and valuable for contribution to and serving the public health, safety and welfare.” In this case, Paulsboro found that the Gallenthin property was in need of redevelopment because it was not fully productive and that the property was potentially useful and valuable for contributing to and serving the public health, safety and welfare as set forth in the statute. Paulsboro read the phrase “other conditions” to refer to any conditions as opposed to conditions that relate to the more specific predecessor words, title or diverse ownership of real property. The property in question, owned by the plaintiff since 1951, but utilized by them or their predecessors as early as 1902, was located in Paulsboro, bounded on its eastern side by Mantua Creek and on its western edge by Mantua Avenue. To its south, an industrial facility existed and to its north an inactive British Petroleum (BP) storage site existed. Gallenthin’s land consisted mostly of undeveloped, open space identified as protected wetlands by the NJDEP. The property had been periodically used as a deposit site for dredging materials in 1902, 1934, 1937, and 1963. In addition, Gallenthin had leased portions of the property to an environmental cleanup organization for river access, employee parking and storage. Moreover, since 1997, a wild-growing reed has been harvested from the Gallenthin property three times a year. The reed could be used as cattle feed, according to the plaintiffs. On three occasions, the Planning Board and governing body explored the utilization of the Redevelopment Law to stimulate growth in the borough. First, in 1998, the borough adopted a new master plan, which referenced seven broadly defined areas in Paulsboro that should be redeveloped to stimulate the borough’s economic rehabilitation. The Gallenthin property was not included as one of those areas, but was referenced in the report as being available for use as a boat launch or marina. In 1999, the Paulsboro governing body authorized the Planning Board to investigate several specific parcels, including parcels adjacent to the Gallenthin property but not the Gallenthin property. In June 2000, the governing body authorized the planning board to investigate additional contiguous properties, but again, conspicuous by its absence was the Gallenthin property. The Gallenthin property first appeared on the radar screen when a private consultant retained by two parcel owners prepared a report that suggested that the Gallenthin property be included in the redevelopment project for the purposes of providing alternative access routes even though there were already three alternative access routes. It was after this 2002 report that Paulsboro then requested its own engineers to compile a redevelopment plan summarization, which for the first time officially suggested that the Gallenthin property be designated as an area in need of redevelopment. That report stated in pertinent part: Conditions rising to the level of the requisite criteria for a redevelopment declaration noted from field observation conducted in January 2003 include: a not fully productive condition of land as evidenced by the expanse of vacant unimproved parcels which otherwise could be beneficial in contributing to the public health, safety and welfare of the community resultant from aggregation of the positive features of development. The expert report commissioned by the municipality did not make any reference to the use of the Gallenthin property for the purposes of providing access to the larger adjacent properties in need of redevelopment. Nevertheless, in April 2003, the planning board held a public hearing regarding the classification of the Gallenthin property as an area in need of redevelopment and so declared it, despite the cogent testimony of plaintiff’s planning expert in opposition. As a result of that designation, plaintiffs filed a complaint in lieu of prerogative writs challenging Paulsboro’s designation of their property as “in need of redevelopment.” The Law Division dismissed plaintiff’s complaint and the Appellate Division sustained that dismissal. The Supreme Court granted certification to examine the issue. Chief Justice Zazzali introduced the legal analysis by noting three areas that would be addressed: We begin by addressing Plaintiff’s constitutional challenge to Paulsboro’s interpretation of N.J.S.A. 40A:12A-5(e). Next, because we conclude that Paulsboro’s construction of subsection 5(e) would render that provision unconstitutional, we discuss whether N.J.S.A. 40A:12A-5(e) is “reasonably susceptible” to an interpretation that complies with the constitution. Finally, we briefly addressed the parties’ arguments regarding the standard of review for municipal redevelopment designations. Relying upon the history of the “blighted areas” clause of the Constitution, the Court found that while it had previously expanded the definition of the term “blight” as being more than slum clearance, the term “blight” still has a negative connotation, noting: “[a]lthough the meaning of ‘blight’ has evolved, the term retains its essential characteristic: deterioration or stagnation that negatively affects surrounding properties.” Chief Justice Zazzali reinforced that definition by briefly reviewing the meaning of “blight” in various other jurisdictions, all of which referred universally to a deteriorated depressed area. Using Paulsboro’s interpretation of Section 5(e) to permit redevelopment of any property that is “stagnant or not fully productive” yet potentially valuable for “contributing and serving” the general welfare, Chief Justice Zazzali declared that virtually any property in the State of New Jersey would be eligible for redevelopment, stating: We need not examine every shade of grey coloring a concept as elusive as ‘blight’ to conclude that the term’s meaning cannot extend as far as Paulsboro contends. At its core, “blight” includes deterioration or stagnation that has a decadent effect on surrounding property. We therefore conclude that Paulsboro’s interpretation of N.J.S.A. 40A:12A-5(e), which would equate ‘blighted areas’ to areas that are not operated in an optimal manner, cannot be reconciled with the New Jersey Constitution. Rather than declare the statutory provision unconstitutional, however, the Court found that Section 5(e) was “reasonably susceptible to an alternative interpretation that conforms to the constitutional “blighted areas” clause and avoids the finding of a constitutional defect. The Court divined such an interpretation by first noting that both under subsections 5(b) and 5(c), specific criteria was established that would constitute surplusage if Paulsboro’s interpretation of subsection 5(e) were to remain. Furthermore, the Court found that within subsection 5(e), the Legislature listed two specific criteria that triggered the applicability of the section, namely “diverse ownership” and “conditions of the title.” Chief Justice Zazzali noted that if the more general phrase “other conditions” is interpreted to mean any condition, the two more specific phrases would be redundant. The Court called upon the ejusdem generis principle of statutory construction: where general words follow specific words in statutory enumeration, the general words are construed to embrace only objects that are similar in nature to those set forth in the specific words. The Court found that the term “other conditions” is not a “universal catch-all that refers to any eventuality,” but instead . . . “refers to circumstances of the same or like piece as conditions of title or diverse ownership.” Furthermore, the Court found that the Legislature did not intend the phrase “stagnant or not fully productive” to create alternative criteria for designating property in need of redevelopment. Instead, Chief Justice Zazzali applied the correct, but sometimes confusing tenet that “the disjunctive ‘or’ in a . . . statute may be construed as the conjunctive ‘and’ if to do so is consistent with the legislative intent.” Thus, the Court found that Section 5(e) requires that property be both stagnant and not fully productive, so long as the same evidenced conditions of “blight” as set forth above. Finally, the Court cited in detail from Levin v. Twp. Comm of Bridgewater, 57 N.J. 506 (1971), which had upheld the constitutionality of the predecessor of Section 5(e) of the LRHL. The Supreme Court in Levin found that land which was burdened with defective, questionable or unusual conditions of title, unsuitable lot layouts, undeveloped street patterns or other serious difficulties which stood in the way of a unified development plan that would serve the health, welfare, social and economic interests and sound growth of the community was the type of property that could be declared “blighted.” The Court summarized its reasoning as follows: In sum, because we must presume that the Legislature intended subsection (e) to function in a constitutional manner, and because subsection (e) is reasonably susceptible to an alternative interpretation, we conclude that the Legislature intended N.J.S.A. 40A:12A-5(e) to apply only to property that has become stagnant because of issues of title, diversity of ownership, or other similar conditions. By adopting that construction, we avoid rendering N.J.S.A. 40A:12A-5(e) unconstitutional and give effect to the Legislature’s original purpose in adopting the language that would become subsection 5(e). Since Paulsboro’s sole reason for designating the Gallenthin property as “in need of redevelopment” was the failure of the property to be utilized in a fully productive manner, the Court found that such criteria were insufficient to allow the borough to designate the property as “in need of redevelopment” and subject the same to eminent domain. However, the Court did not preclude future inquiry by the borough concerning whether the Gallenthin property is in need of redevelopment based upon some other legitimate grounds. Addressing the third and final topic, Chief Justice Zazzali provided future guidance to governing bodies, planning boards and courts in terms of the standard of review of these redevelopment designations. Municipalities were cautioned that they “must establish a record that contains more than a bland recitation of applicable statutory criteria and a declaration that those criteria are met.” Noting that while these issues of law are subject to de novo review, the Chief Justice cautioned that these redevelopment designations are entitled to deference “provided that they are supported by substantial evidence on the record”; a standard not met if the decision is supported only by the net opinion of an expert, which “is simply too slender a reed on which to rest that determination.” While the decision may not be welcomed by some municipalities, it is submitted that the same fairly balances the rights of individuals against the rights of the government in dealing with “blighted areas.” One of the major criticisms of a municipality’s invocation of the redevelopment law is its expansive reading of “blighted areas.” The fact that it has now become clear that “blighted areas” connotes a deteriorating situation, coupled with the fact that subsection 5(e) applies only to properties that have become stagnant and unproductive because of issues of title, diversity of ownership, or other conditions of the same kind, as opposed to other conditions generally, should eliminate this criticism, yet still allow municipalities to exercise their rights under the LRHL to enhance and improve the community. To say that Gallenthin has reoriented the process of redevelopment in New Jersey is an understatement. In the two months following the decision, the first five legal tests in which this issue was raised has resulted in five scuttled redevelopment projects. See “Court’s Redefinition of ‘Blight’ Helps Owners Win Eminent Domain Cases” by Lisa Brennan, 189 N.J.L.J. 485 (Aug. 6, 2007). Right to Videotape Meetings Channel surfing on any cable television network will invariably find scintillating and sometimes incisive programs. Not within that category, however, is the typical municipal governing body meetings, whose audience is surpassed by every other program except perhaps the 6-month-old local Independence Day Parade. Given this history, it is a wonder that anyone would desire to make his own personal video tape of a municipal public meeting. Nevertheless, in some venues the intensiveness of the desire to videotape a municipal public meeting was sufficient enough for the Supreme Court to finally confirm the conclusion of an Appellate Division Panel 23 years earlier that the public has a common-law right to videotape municipal government public meetings, subject to reasonable restrictions. In Tarus v. Borough of Pine Hill, 189 N.J. 497 (2007), the Supreme Court found that the Borough of Pine Hill violated the plaintiff’s common-law rights by imposing arbitrary and unreasonable restrictions that prevented the plaintiff from videotaping the council meetings in question. In analyzing the issues presented, Chief Justice Zazzali, writing for a unanimous Court, first examined the basis for any right to videotape meetings, looking at both statutory law and the prevalence of video cameras in society. Second, the Court evaluated the restrictions that the borough attempted to impose on the plaintiff to determine whether those common-law rights were effectively violated. Finally, the Court examined whether there was probable cause for plaintiff’s arrest on disorderly persons charges, which resulted from plaintiff’s refusal to stop videotaping or, in the second instance, his failure to abide by ad hoc guidelines that the borough established. Chief Justice Zazzali began his opinion by recounting New Jersey’s strong public policy favoring open government, the value of which dated back to at least the first half of the 18th century. He noted that among other things, open government is intended to reduce public corruption. Citing from Sudol v. Borough of North Arlington, 137 N.J. Super. 149 (Ch. Div. 1975), the Chief Justice traced the right of a citizen to take notes in long hand, short hand, or by audio recording the meeting itself. More recently, the Supreme Court in 1994 found that audio tapes have a unique value because they represent indisputable proof and evidence of the public record of a particular event. Atlantic City Convention Center Authority v. S. Jersey Publ. Co., 135 N.J. 53, 68 (1994). Focusing specifically on the right to progress to the next logical step of videotaping meetings, the Court acknowledged that in 1982 the Chancery Division found that a member of the public has the right to videotape a public meeting in Maurice River Township Board of Education v. Maurice River Township Teachers’ Ass’n, 187 N.J. Super. 566 (Ch. Div. 1982). The Appellate Division affirmed the trial court’s determination on the basis that there were no per se constitutional, statutory or common-law impediments to the use of a video camera to tape a meeting. Maurice River Township Board of Education v. Maurice River Township Teachers’ Ass’n, 193 N.J. Super. 488 (App. Div. 1984). The Chief Justice acknowledged that the Appellate Division’s decision was somewhat ambiguous since its finding was expressed in the negative, i.e., the failure of the Constitution, a statute or case law to prohibit the right to videotape. Looking to other jurisdictions and the federal court system, this Court cited with agreement conclusions that videotaping is a legitimate way of gathering information and results in the most accurate and effective way of memorializing the local decision-making processes. On the other hand, the Court was not persuaded that the use of video cameras will result in intimidation or harassment; while there may be some negative consequences, they should not override the benefits derived by allowing the videotaping. As to subjecting third parties, such as citizens at a public meeting to being videotaped by a private individual, the Court cited with approval a New York case, Mitchell v. Board of Education, 113 A. 2d. 924, 925 (N.Y. App. Div. 1985), which found that citizens have no right to privacy protecting their public comments and that those citizens should realize their comments and remarks are being made in a public forum. Also, the Supreme Court looked to the Open Public Meetings Act, N.J.S.A. 10:4-6 to -21, enacted in 1975, for support of open government. Although finding that the act does not specifically address the videotaping of meetings, the Court again looked to other jurisdictions with similar open meeting acts which were read broadly to support the right to videotape meetings. As such, the Court found a common-law right to videotape meetings. However, it specifically declined to examine the issue as to whether there was a New Jersey constitutional right to do so, adhering to the rule that a court should not reach and determine a constitutional issue unless absolutely imperative in the disposition of litigation. In light of the Court’s finding that there was indeed a common-law right to videotape, the Court turned to whether the restrictions imposed by the Borough of Pine Hill were of such a nature so as to effectively violate plaintiff’s common-law rights. The Court did acknowledge that the common law right to videotape was neither absolute nor unqualified and that public bodies may impose reasonable guidelines to ensure that the recording of the meeting does not disrupt the business of the body or other citizens’ rights of access. It was declared that any guidelines must be neutrally adopted and administered and limited in scope to preventing disruption. Those guidelines could include the number and types of cameras permitted, the positioning of the cameras, the activity and location of the operator, lighting and other items in order to maintain order and prevent unnecessary intrusion into the proceedings. 189 N.J. at 516-517. The Court endorsed the position taken by the Appellate Division in this case which cited approvingly from Belcher v. Mansi, 569 F. Supp. 379, 384 (D.R.I. 1983), 189 N.J. at 516-517, which permitted the imposition of restrictions: To preserve the orderly conduct of a meeting by controlling noise levels [and] spatial requirements . . . [,] to safeguard public facilities against damage . . . to the meeting hall’s electrical system, or . . . to require fair payment by the wielder of the device for electricity used. However, the Court found that the borough had not formally established any guidelines on the right to videotape at the time of plaintiff’s arrest and that the mayor’s ordering the plaintiff to stop videotaping represented an inappropriate ad hoc means of regulating the videotaping process. The Supreme Court was also troubled by the fact that the restrictions imposed by the mayor and council appeared to be intended in part to prevent an alleged “non-trustworthy” political opponent from exercising his right to videotape because of their concern that this political opponent would edit the tapes to skew reality in this situation. The Court, however, ruled that the Borough of Pine Hill had more than adequate time to formally develop guidelines for imposing reasonable restrictions on videotaping, as many as 16 years when examining the Maurice River case and as little as several months before the videotaping took place. The Court made it clear that governing bodies were under no obligation to create guidelines limiting the right to videotape and can allow it outright. The Court pointed out that its concession to allow a public body to establish reasonable regulation of the right to videotape was only acknowledged so as to ensure that the right to videotape does not otherwise interfere with the business of the governmental body. In this case, the Court found that the borough had violated the plaintiff’s common-law right to videotape because it had established ad hoc restrictions intended to block a political opponent from videotaping Council meetings. Those ad hoc guidelines were not neutral nor reasonable. Finally, in looking to whether there was probable cause to arrest the plaintiff for refusing to comply with the mayor’s demand, the Court found that there was in fact such probable cause based upon a determination made in an earlier federal lawsuit brought by this plaintiff related precisely to these issues. Since the issuance of this decision, there has not been an inordinate “run” to videotape meetings. As above mentioned, many meetings today are actually videotaped for broadcast by the municipality itself for viewing on its local cable public access channel. It is more likely that the desire by individuals to videotape public meetings will tend to be associated with more controversial issues before a public body and/or contested primary or general elections. Because all public bodies are now on notice of the existence of this common-law right, it is strongly urged that public bodies establish reasonable guidelines on the utilization of video cameras during public meetings. The Administrative Office of the Courts has issued Directive #10-03 on October 8, 2003, establishing revised guidelines for the use of cameras in the court room. Those guidelines are available on the Supreme Court judicial Web site and could be utilized as a general template for establishing local regulations. Guidelines 3 through 5 (General Media Requirements and Responsibilities) provide some general parameters to be considered as does Guideline 1, subsection C2, which refers specifically to audiotape recordings, but includes some important standards to be considered when establishing guidelines for videotape. The practitioner is cautioned to review those guidelines in light of the Supreme Court’s decision so as to not run afoul of the broad common-aw rights that the Supreme Court has found to exist at the local level. Real Property Taxation While most residents of New Jersey, at one time or another, have driven past the PNC Bank Arts Center at Exit 114 of the Garden State Parkway, it is unlikely that many of them know the legislative history of its development from a relatively small amphitheater to the significantly larger and more extensive facility that one sees today. That history was reviewed in detail by the Supreme Court in Township of Holmdel v. New Jersey Highway Authority, 190 N.J. 74 (2006), where the Supreme Court determined that the amphitheater portion of the PNC Bank Arts Center (formerly “Garden State Arts Center”) continues to be exempt from local real property taxation by the Township of Holmdel. However, the Reception Center portion of the PNC Bank Arts Center, being a substantial and unanticipated departure from the Authority’s tax exemption parameters, was in fact subject to local property taxation, thus generating significant revenues for the Township of Holmdel. The history of the development of the Garden State Arts Center (GSAC) is both fascinating and disappointing in the Highway Authority’s total disregard of the legislative limits on its powers. In 1954, the New Jersey Turnpike Authority (NJTA) acquired approximately 400 acres of land in Holmdel Township for the purposes of constructing an Arts Center. At the time, the Highway Act authorized the NJTA to acquire, construct, maintain and operate “highway projects” and further provided that those projects were exempt from taxation. A “highway project” was defined in the act rather broadly. Approximately 11 years after the acquisition, the NJTA approved the construction of a 5,000-seat amphitheater at the GSAC. The NJTA found that the amphitheater was a “highway project” for reasons that are irrelevant to this case. What is relevant, however, is that in 1968, a legislative committee concluded that the GSAC was only tenuously connected to the NJTA’s statutory mandate. The Legislature responded to its committee report by amending the appropriate definitions to limit the property tax exemption for the Highway Authority only to those facilities directly related to the use of the highways. However, the Legislature grandfathered the existing amphitheater facility. In 1972, the NJTA converted the Celebrity House, theretofore existing, to a full-service reception facility with a maximum capacity of 70. In 1984, the reception facility was further expanded to accommodate 350 people for sit-down receptions and 500 people for stand-up receptions at a cost of $6.4 million, disregarding the 1968 limitations imposed on the NJTA and prompting the creation of another special investigative committee. This Senate committee found that the new construction of the reception center violated the 1968 legislation. Despite such a conclusion, no further action was taken. In 1989, the reception center was completed and the NJTA leased it to a private entity. The amphitheater was operated in conjunction with certain private companies as well. As a result of these activities, in 1998, Holmdel’s tax assessor determined that both the amphitheater and reception center were no longer eligible for property tax exemption under the Highway Act’s specific immunity provisions. On appeal in 1999, the Tax Court held that the NJTA was entitled to tax immunity. The Appellate Division then reversed and remanded the matter for a determination as to whether the amphitheater’s use under the GSAC’s lease and the use of the reception center were consistent with that which the Legislature envisioned in 1968. On remand, the Tax Court concluded that the amphitheater and reception center were significantly different, physically and in their operations, than contemplated within the tax exemption language and, therefore, reversed its earlier determination and found that both the amphitheater and reception center were not tax exempt. The Appellate Division upheld that determination. The Supreme Court granted motions for leave to file an interlocutory appeal and found that since the current operation of the amphitheater did further the GSAC’s purpose of providing public access to performing arts and operations while generating a revenue for the NJTA, it was exempt from local property tax assessment. On the other hand, the construction and privatization of the reception center were found by the Supreme Court to be significant and unanticipated departures from the NJTA’s statutory mandate and, therefore, not included within the tax-exempt provisions set forth in the Highway Act. In arriving at its conclusion, the majority, through an opinion penned by Chief Justice Zazzali, first reviewed the basic legal principles relevant to governmental tax immunities, pointing out that all real property within New Jersey is subject to taxation unless expressly exempted by the Legislature through general laws, based upon the property’s use, not the owner’s identity. The Court explained the competing governmental considerations in analyzing the validity of statutory tax exemptions. On the one hand, tax immunities should be liberally construed to encourage the provision of public services, whether by the government or private entities. On the other hand, the taxing power represents the heart of government because without taxes, a government cannot function. The Court also emphasized that local governments, which are particularly dependent on property taxes for revenue, sometimes shoulder a disproportionately greater share of the provision of public services if many tax-exempt facilities are located within their borders. The Court reviewed three cases that essentially serve as a primer on tax-exempt law. N.J. Turnpike Authority v. Washington Township, 16 N.J. 38 (1954); Walter Reade Inc. v. Dennis, 36 N.J. 435 (1962); and Moonachie v. Port of New York Authority, 38 N.J. 414 (1962). Also implicated in this decision was the 1968 amendment to the Highway Act, grandfathering the tax exemption on projects theretofore existing that would otherwise exceed the NJTA’s statutory purpose as redefined in the 1968 amendments, as well as the 2003 merger legislation, L. 2003 c.79. That merger legislation repealed the Highway Act and merged the Highway Authority into the Turnpike Authority, which now is the owner of the GSAC. The majority presented its position separately on the tax-exempt status of the amphitheater and the tax-exempt status of the reception center. While the amphitheater did in fact expand its operation since 1968, the underlying activities essentially remained the same. The Supreme Court could find no intention of the Legislature in 1968 when it grandfathered the tax exemption for the amphitheater to imply that the evolution of the amphitheater as time went on would jeopardize the tax exemption. The Court found that the purpose of the amphitheater was two-fold � to provide access to performing acts and to generate revenue for the NJTA. The Court was persuaded that those underlying purposes continued to be accomplished by the operation of the amphitheater of the GSAC and, therefore, that the exemption should continue. On the other hand, the majority of the Court felt differently with regard to the reception center. In 1968, the reception center was a small facility known as the “Celebrity House” which at the time was primarily utilized to host botany classes. Its expansion in 1972 to a full-service reception facility and the construction in 1984 of a larger reception center, known as the Robert V. Meyner Reception Center, to accommodate 350 people, represented an unauthorized expansion of the operation. The Court quoted from the Senate Hearings in 1988, which formed the basis for the Second Interim Report of the Senate Special New Jersey Highway Authority Investigation Committee, wherein committee members found that the reception center extended far beyond what the Arts Center was doing in 1968. In analyzing the effect of the Merger Act, which repealed the Highway Act and merged the Highway Authority into the Turnpike Authority, the Court found that the reaffirmation of the tax-exempt status in the Merger Act was intended to reaffirm the limited tax exemption as clarified by the 1968 legislation, as opposed to granting a new tax exemption for both the amphitheater and the reception center. Justice John Wallace Jr. dissented in part from the view of the majority on this issue. Justice Wallace was of the view that the reaffirmation of the tax exemption should have included the reception facility as well, at least during the time period that the tax appeals were pending. Justice Rivera-Soto also dissented, but went further than Justice Wallace in suggesting that the reception center should be exempt from local property taxation prospectively as well. In addition to this case providing a primer on tax-exemption tenets, it provides a fascinating history into the blatant disregard by the then independent Highway Authority of repeated investigative reports of the Legislature, which concluded that the Highway Authority clearly exceeded its legislative powers. The expansion of the reception facility in 1984 after the Legislature 15 years earlier had found that the Highway Authority had no power to undertake such action, represents a power struggle between competing governmental entities with the autonomous authority flexing its muscle to almost dare the Legislature to stop it. While the merger of the Highway Authority into the Turnpike Authority was attributed to a merger for economy’s purposes, one wonders whether the elimination of the Highway Authority and its merger with the Turnpike Authority represented the ultimate expression of the legislative dissatisfaction with the sheer audacity of the Highway Authority to disregard its functional limitations. Fireman’s Rule Since 1960, New Jersey, along with many other jurisdictions, embraced the public policy as expressed in the Fireman’s Rule that declared that it was inappropriate to allow firefighters and police to recover for injuries sustained as a result of their confronting dangers and hazards they were employed to specifically address. That public policy, however, began to erode, particularly in the judicial system on the basis that it does not conform to available methods of redress and equal treatment under “modern” tort law. In New Jersey, while its viability has been questioned for some time, the Supreme Court has now definitively interpreted a 1993 legislative act as repealing the Fireman’s Rule. More specifically, in Ruiz v. Mero, 189 N.J. 525 (2007), Justice Virginia Long, writing for a unanimous court, confirmed the validity of a number of Appellate Division decisions, which had previously found that since 1993 the Fireman’s Rule has been abrogated in New Jersey as a result of the enactment of N.J.S.A. 2A:62A-21. The underlying facts of the case upon which the decision was based are typical. Plaintiff Henry Ruiz was a police officer for the City of Dover and called to the scene of an altercation at dfendant’s bar. When Officer Ruiz arrived, he had found patrons becoming agitated while consuming alcohol and watching a soccer match. Several persons attacked the plaintiff, resulting in head and neck injuries. In his complaint, the plaintiff argued that the defendants were negligent in failing to provide adequate security at the bar in contravention of a municipal ordinance. The defendant moved to dismiss the complaint on the basis of the Fireman’s Rule. The trial court granted the motion and dismissed the case. On appeal, the Appellate Division reversed and remanded the case. The Supreme Court granted certification and ultimately sustained the Appellate Division’s decision, finding that the Fireman’s Rule in New Jersey was abrogated by the enactment of N.J.S.A. 2A:62A-21. Justice Long first outlined the rescue doctrine, which provides a source of recovery to one who is injured while undertaking the rescue of another who has negligently placed himself in peril. The evolution of the Fireman’s Rule as an exception to the rescue doctrine prevents a firefighter from recovering in tort from a landowner who was negligent in starting or failing to curtail a fire. While there were a number of justifications for the rule, “the prevalent explanation was one of public policy: that it was unjust and unfair to compensate firefighters and police for injuries sustained when facing dangers they had been hired to confront.” New Jersey adopted the Fireman’s Rule in Krauth v. Geller, 31 N.J. 270 (1960). In that case, Chief Justice Weintraub found that the risk that the fireman is to receive is grounded in appropriate compensation from the public he serves, both for the hazard and in workers’ compensation benefits for consequences that are inherent in the risks of his job. The rule was extended to later include volunteer firefighters, police officers and others. In Rosa v. Dunkin’ Donuts, 122 N.J. 66 (1991), the Supreme Court affirmed the Appellate Division’s decision, concluding that the Fireman’s Rule bars actions not only for the very negligence that serves as the source of the emergency to which the firefighter or police officer was responding, but also to any tangential negligent acts which pose a hazard that is incidental to and inherent in the performance of the officer’s duties. Justice Long pointed out that the Fireman’s Rule has come under criticism from a variety of quarters, including New Jersey’s own Supreme Court. Many states have completely abrogated or abandoned the Fireman’s Rule on the basis that it does not comport with notions of redress and equal treatment under modern tort law. In 1993, the New Jersey Legislature enacted N.J.S.A. 2A:62A-21, which appeared to abrogate the Fireman’s Rule. In pertinent part, the statute provided: In addition to any other right of action or recovery otherwise available under law, whenever any law enforcement officer, firefighter, or volunteer member of a duly incorporated first aid, emergency, ambulance or rescue squad association suffers any injury, disease or death while in the lawful discharge of his official duties and that injury, disease or death is directly or indirectly the result of the negligent, wilful omission, or wilful or culpable conduct of any person or entity, other than the law enforcement officer, firefighter or first aid, emergency, ambulance or rescue squad member’s employer or co-employee, the said officer suffering the injury may seek recovery and damages from the person or entity whose neglect, wilful omission, or wilful or culpable conduct resulted in that injury, disease or death. The Supreme Court was asked to divine the intent of that statutory language, that is whether the Legislature meant to completely abrogate the Fireman’s Rule, or as defendants claim, to return to the rule to how it had existed and been interpreted prior to the Rosa case. Applying traditional statutory construction rules, the Supreme Court unanimously found that the statutory language clearly supports the conclusion that the Fireman’s Rule was abrogated in New Jersey by N.J.S.A. 2A:62A-21. The Court found that the statute was devoid of words to support the defendant’s position that the statutory change was intended only to maintain the pre- Rosa immunity. The Court found nothing in the words of the statute to support the defendant’s claim, except in the synopsis appended to the bill. Justice Long found that even if the synopsis is considered relevant, defendant’s reading of it was strained and unavailing. The Supreme Court acknowledged that up to this time, only a single Appellate Division Panel had found that the 1993 statute did not abrogate the Fireman’s Rule. Justice Long opined that this singular aberrant decision was not persuasive because it did not address the language of N.J.S.A. 2A:62-A-21, but merely made policy arguments regarding the meaning that should be ascribed to it. Accordingly, the Court sustained the Appellate Division’s decision, finding that the Fireman’s Rule in New Jersey has been abrogated by the statutory enactment. Whether the clarification of the abrogation of the Fireman’s Rule will have a major effect on the public remains to be seen. The fact that a public employee in a high-azard position now has the right to bring a cause of action against private sector tortfeasors should provide some indirect benefits to the public sector. On the other hand, it is still sometimes difficult to rationalize the right of one who voluntarily assumes a position where they will periodically be put in harm’s way to be heard to complain about injuries sustained in performing the very functions he or she has voluntarily agreed to assume. Rules of Professional Conduct In two seemingly disparate decisions, the Supreme Court, on the one hand, loosened the tight reins that had been maintained on public-ector attorneys, while on the other hand, made it more difficult for government attorneys in the state and their firms to represent or continue to represent clients who had particular involvement in a matter in which the attorney for the state was substantially and directly involved while a state employee. The “Chinese Wall” previously permitted under the Rules of Professional Conduct (RPC) was directed to be eliminated by the Supreme Court. The relaxation of the municipal practitioners limitations began in Opinion 697, where the Advisory Committee of Professional Ethics found that an attorney representing a municipality or any of its agencies has for his client the entire municipality and, therefore, there would be a concurrent conflict in representing a private client before or against any one of the municipality’s subordinate instrumentalities. Specifically, the Advisory Committee found that there was a per se prohibition against an attorney and his law firm serving as bond counsel for the governing body of the municipality and also representing a private client before one of the boards or agencies of that municipality. The same conclusion was reached with regard to an attorney of a law firm serving as special litigation counsel for the governing body and also representing clients before one of the boards or agencies (including the municipal court) of the municipality. In a sweeping definitive decision, the Supreme Court reversed the Advisory Committee’s determination and put to rest the question of whether the “appearance of impropriety” concept was now dead. In re Supreme Court Advisory Committee on Professional Ethics Opinion No. 697, 188 N.J. 549 (2006), the Court found once and for all that indeed the “appearance of impropriety” standard was history, having been replaced by a combination of revised R.P.C. 1.7 and 1.8(k). The Supreme Court noted that the Advisory Committee decision had relied solely upon citations which predated the 2004 amendments to the R.P.C., which had jettisoned the “appearance of impropriety” doctrine. In the context of revised R.P.C. 1.8(k), the Supreme Court retained the “municipal family doctrine” but restricted the same to the relevant governing body and its subordinate entities. Thus, an attorney representing the municipal governing body was barred for representing private clients before the governing body and all of the entity’s subsidiary boards and agencies, including its court. On the other hand, an attorney plenarily representing an agency or subsidiary to the government entity’s governing body, i.e. the zoning board of adjustment, the planning board, and so forth, would be barred only from representing private clients before that subsidiary agency. Since the amendment of the R.P.C. in 2004, based upon the recommendation of the Pollock Commission, there has continued to be an underlying uncertainty as to whether the “appearance of impropriety” doctrine was actually eliminated, particularly, where that standard formed the foundation for a variety of ethics opinions finding dual representation improper. It is worth noting that even the Pollock Commission sent some mixed signals regarding its intentions: Although the Pollock Commission urged the abandonment of the “appearance of impropriety” rule, it “acknowledge[d] that a court properly may consider the appearance of impropriety as a factor in determining that multiple representation poses an unwarranted risk of disservice either to the public interest or to the interest of a client.” In fact, shortly after the amendment to the R.P.C. in 2004, a notice was issued reminding members of the bar that the elimination of the appearance of impropriety standard in the Rules in 2004 did not eliminate certain restrictions on attorneys representing public entities. Moreover, the staff of the Advisory Committee made it clear that the elimination of the “appearance of impropriety” rule did not automatically repeal all previously determined conflicts issues since in many cases the finding that a conflict existed did not only rely upon the “appearance” rule but also upon other grounds. To characterize the state of affairs for public-ector attorneys at that time as being chaotic is perhaps an understatement. While recognizing the reluctance of the Supreme Court to jettison decades of advisory opinions bottomed in the “appearance of impropriety” standard, it still caused mass confusion in an attempt to understand how such a determination should be applied prospectively to the elimination of that standard. Either the “appearance of impropriety” standard was applicable, or it was not. There should be no middle ground. After two years of tightrope walking, the Supreme Court made it clear � the elimination of the “appearance of impropriety” standard was intentional. It no longer exists: For the foregoing reasons, we hold that the “appearance of impropriety” standard no longer retains any continued validity in respect of attorney discipline. We further hold that the provisions of R.P.C. 1.8(k) govern all instances in which a lawyer or a law firm employed or retained by a public entity, either as a lawyer or in some other capacity, seeks to undertake the representation of another client before that public entity or its board or agencies, including, if applicable, its municipal court. In respect of the application of R.P.C. 1.8(k), we reaffirm the continuing vitality of the “municipal family doctrine,” albeit in a less expansive scope. In rejecting the caveat in the Pollock Commission’s recommendation, the Supreme Court stated: In light of our ultimate holding in this matter and because it injects an unneeded element of confusion, we reject the appearance of impropriety as a factor to be considered in determining whether a prohibited conflict of interest exists under R.P.C. 1.7, 1.8 or 1.9. See generally N.J. Attorney Ethics 360 (describing Pollock Commission’s comment as a “curious statement” that “is best understood narrowly and not as an invitation to exactly the type of abuse that prompted the pervasive criticism of the doctrine in the first place.”) Originally, the “municipal family doctrine” had provided that to avoid the appearance of impropriety, a lawyer or his law firm could not contemporaneously represent two public agencies, boards or courts within the same public entity. The doctrine also prohibited the concurrent representation of a public entity or its agencies, boards or courts and private clients before that public entity or its agencies, boards or courts. The original municipal family doctrine included within the family the municipal attorney who serves as governing body attorney, the municipal prosecutor, the attorney for the zoning board of adjustment and the attorney for the planning board, and declared that holding any more than one of these positions created a problem,as did the representation of private clients before one of the members of the municipal family if the attorney represented another one. The Supreme Court in the instant decision narrowed the breadth of the municipal family doctrine. Although it continued to hold that the attorney who plenarily represents the municipal governing body will be barred from representing private clients not only before the governmental entity’s governing body, but before all of its subsidiary boards and agencies including the courts, the attorney who plenarily represents an agency subsidiary to the governing body will be barred only from representing private clients before that subsidiary agency. Still, however, being reluctant to let go, the Supreme Court cautioned that while, for example, the attorney for the municipality’s board of adjustment is only barred from representing private clients before the zoning board of adjustment, that attorney’s ability to represent private clients before the municipality’s governing body’s other boards or agencies would still be subject to the test under R.P.C. 1.8(k). That general standard provides: [a] lawyer employed by a public entity, either as a lawyer or in some other role, shall not undertake the representation of another client if the representation presents a substantial risk that the lawyer’s responsibilities to the public entity would limit the lawyer’s ability to provide independent advice or diligent and competent representation to either the public entity or the client. Thus, the Supreme Court still did not make a definitive determination that an attorney representing a subordinate agency within a municipality could represent private clients before other boards and agencies in the municipality, or that an attorney representing the municipality in a limited capacity could represent private clients before other boards and agencies within that municipality. Instead, the Supreme Court cautioned that the attorney would still have to independently exercise discretion in evaluating, before the representation took place, whether such representation created a substantial risk that the lawyer’s responsibility to the public entity would limit the lawyer’s ability to provide independent advice for either the private client or the public entity. As stated by Justice Rivera-Soto: These holdings, however, are limited. We hold only that neither instance inquired of by appellant presents a per se conflict of interest. Nothing in these holdings is to be construed to relieve any attorney of the discrete obligations R.P.C. 1.8(k) imposes. Thus, although not per se barred, any attorney who is employed by or represents a public entity in any capacity and at any level must nevertheless comply with R.P.C. 1.8(k) before engaging in the representation of a private client before a governmental body, board or agency or court other than the governmental entity which employed or retained that attorney or its subsidiary boards, agencies, or courts. That is, the attorney must determine whether the representation of a private client will “present a substantial risk that the lawyer’s responsibilities to the public entity would limit the lawyer’s ability to provide independent advice or diligent and competent representation to either the public entity or the client.” In the end, it is that standard that must control. Whether this language will now spawn an entire body of ethics opinions related to the independent application of R.P.C. 1.8(k) remains to be seen. Moreover, it is not clear as to whether the initial analysis applying R.P.C. 1.7(a) will also spawn a host of advisory opinions although, it is submitted, that the language in R.P.C. 1.7(a) is less ambiguous. It provides in the context of governmental representation that [A] lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client, or a third person or by a personal interest of the lawyer. While concededly less ambiguous, the language still created the potential of multiple interpretations. Nevertheless, it is submitted that because that language is applicable with regard to all representation, as opposed to just public sector lawyers, its application should be more predictable than the rules that focus solely on public entity representation. It is beyond dispute, however, that this decision does open the door to allowing public-entity clients to take advantage of the expertise of a particular attorney or firm when needed, without barring that attorney’s participation in other matters involving that municipality. While such attorneys must still exercise caution and undertake the analysis required by the Supreme Court, the decision making should be swifter and more predictable. On the flip-side of the issue, in a per curiam opinion, the Supreme Court concluded that the New Jersey Conflicts of Interest Law, N.J.S.A. 52:13D-12 to -27, trumps the lesser standard of conduct set forth in the Rules of Professional Conduct (RPC). In re Supreme Court Advisory Committee on Professional Ethics Opinion No. 705, 192 N.J. 46 (2007). The issue arose when a former deputy attorney general notified the Division of Law that he now represents a construction company that was involved in a matter with the New Jersey Department of Environmental Protection, while the NJDEP was being represented in that matter by another DAG who now worked in his law firm. However, consistent with the RPC, the Division was advised that the former “NJDEP” DAG was screened from participation in the current matter in accordance with the RPC. The Division advised that in addition to meeting the requirements of the RPC, the firm was required to comply with the New Jersey Conflicts of Interest Law, N.J.S.A. 52:13D-17, which precludes a former state employee from individually representing or representing through any partnership, firm or corporation, any client other than the state in connection with the matter with which that employee was substantially and directly involved, while a state employee. The former DAG then requested that the Advisory Committee on Professional Ethics determine which of the requirements applied. The ACPE published its Opinion No. 705 in 2006, opining that the Court approved RPC should prevail even though it established a lesser standard than the New Jersey Conflicts of Interest Law. The Department of the Public Advocate petitioned the Supreme Court to review the opinion and such petition was granted. The New Jersey Conflicts of Interest Law prohibits a former employee and/or any partnership, firm or corporation in which the former employee has an interest or through any partner, officer or employee thereof from representing any person or party other than the state in connection with any matter in which that employee shall have made any investigation, rendered any ruling, given any opinion or otherwise been substantially and directly involved during the employment with the state. The RPC prohibits a former government attorney from representing a client: (i) where the lawyer participated personally and substantially as a public officer or employee; (ii) when the attorney had a substantial responsibility as a public officer or employee; or (iii) when within six months of the attorney’s government service the private party’s interests are materially adverse to the appropriate governmental agency. RPC 1.11(a)(1)-(3). However, the conflict may be cured if the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee, and written notice is given promptly to the appropriate governmental agency to enable it to ascertain compliance with the provisions of the Rule. RPC 1.11(c). Obviously, these two provisions conflict with each other. In analyzing the discrepancy, the Supreme Court noted that the precursor to the current version of the RPC was similar to the statutory conflict prohibitions, preventing both the government lawyer and all members of his law firm from participating in the matter. However, at the behest of the Pollock Commission and as part of an expansive overhaul of the RPCs, that Rule was amended in 2004 to permit the screening of a former government attorney to cure any actual conflict of interests. The Supreme Court examined the underpinnings of the separation of powers principle and noted that the doctrine is not absolute, but requires cooperative accommodation among the three branches of government, citing Communication Workers of America v. Florio, 130 N.J. 439, 449 (1992). Thus, while the Constitution vests the Court with the authority to make rules that govern all courts and the practice and procedures in such courts, the Supreme Court recognized that in the spirit of comity, the Court shares jurisdiction with the Legislature in certain cases and in the past has sustained “narrowly � circumscribed legislation that touches on attorney discipline,” citing McKeown Brand v. Trump Castle Hotel & Casino, 132 N.J. 546, 554, 556 (1993). To determine whether to accept the actions of another branch of government that affects the judicial branch, the analysis must look to the legitimacy of the governmental purposes of that action and the nature and extent of its encroachment upon the judicial prerogatives and interests. In examining these two questions, the Supreme Court found that the New Jersey Conflicts of Interests Law serves a significant governmental purpose and that the encroachment upon judicial prerogatives of the Conflicts of Interests Law were not improper. In addition, the Court found that the restrictions imposed by the Conflicts of Interests Law did not interfere with the judiciary’s authority to administer courts or regulate attorneys, and agreed with the Public Advocate’s position that attorneys should not be deemed a special class in the application of the New Jersey Conflicts of Interests statute: We agree with the Public Advocate that an exemption for attorneys from N.J.S.A. 52:13D-17, which is a statute of general application, would be incongruous with the State’s strong policy of insuring uniformly high ethical standards designed to stimulate public confidence in our civil servants. Therefore, in the interest of comity, we hold that the restrictions imposed by N.J.S.A. 52:13D-17 on all former State employees are equally applicable to attorneys and need not yield to the conflicting commands of RPC 1.11. 2007 WL 2050702 (N.J.), at 6. As a result of its ruling, the Court also referred the matter to the Professional Responsibility Rules Committee for a re-evaluation and rewrite of RPC 1.11 in accordance with the Court’s determination in this case which would bring the Rule into harmony with N.J.S.A. 52:13D-17. Justice Rivera-Soto wrote a lengthy dissenting opinion arguing that since RPC 1.11(c) was revised well after the New Jersey Conflicts of Interests Law went into effect, there is no reason to supersede the RPC because of that pre-existing law, which should have been considered at the time that the Rule was amended. Justice Rivera-Soto quoted extensively from the report of the Supreme Court Commission on the Rules of Professional Conduct in 2003 and argued that the Committee recommended and the Supreme Court amended the RPC with full knowledge of the inconsistency with the Conflicts of Interests Law. Justice Rivera-Soto could find no legitimate reason to effectively overrule RPC 1.11(c) insofar as it provides protection for those law firms that hire former government attorneys. Justice Rivera-Soto was emphatic and clear in his reasoning: Stated differently, nothing � absolutely nothing � has been presented to this Court to justify reneging on the common sense provisions of RPC 1.11(c). Nothing � absolutely nothing � has been tendered to demonstrate that the rationale that supported the adoption of that Rule is no longer valid. Nothing � absolutely nothing � has been presented to show that the Rule is somehow deficient in its application. Nothing � absolutely nothing � has been offered to justify deference today when we affirmatively chose to act four short years ago. 2007 WL 2050702 (N.J.) at 10. Instead, Justice Rivera-Soto would have sustained the conclusion of the Advisory Committee on Professional Ethics that the more liberal RPC 1.11(c) is applicable. The interplay between the RPC and the Conflicts of Interests Law is a sensitive one. As the attitudes of the bar have shifted to a more practical mode with regard to conflicts of interests, i.e., eliminating the “appearance of impropriety” standard, there continues to be a tension between the regulation of attorneys by the judiciary and the Legislature’s attempt to legislate ethics into other activities in government service. The irony is that, traditionally, the RPC contains the more stringent conflicts of interest precepts and it is only more recently as a result particularly of the Pollock Commission and the Supreme Court decision in Opinion No. 697, above, that the Rules have been slightly relaxed. On the other hand, with almost a daily barrage of improper governmental conduct, the Legislature has moved to make more stringent conflicts-of-interest laws. It was only a matter of time that the regulations of these two co-equal branches of government would clash. Here, the Court conceded the more stringent position that was established by the Legislature, perhaps reflecting the times in which these decisions are made. It may well be that in the future the pendulum will swing to the opposite side and the Court will again determine that its more liberal Rules should govern these activities. Only time will tell. Disciplinary and Employment Cases The Court made determinations on a number of topics of interest to public sector attorneys. In Thurber v. City of Burlington, 191 N.J. 487 (2007), Justice Hoens, writing for a unanimous Court, sustained an Appellate Division decision that a municipal court administrator who engaged in conduct unbecoming a judicial employee is subject to the disciplinary authority of the Merit System Board (MSB) and not the assignment judge. The issues in the case arose from the inter-relationship between the right of the Assignment Judge as the court’s constitutional designee for oversight of the judiciary employees within the various vicinages and the MSB, which asserts jurisdiction over career service judiciary employees for disciplinary purposes. The facts in the case were undisputed. A deputy municipal court administrator in the City of Burlington was charged with several offenses. After being told by the city administrator of Burlington that her job was not in jeopardy, approximately one month later, the assignment judge advised the mayor and council of Burlington by letter that he was exercising his authority under Rule 1:33-4 to remove the employee temporarily from her position with the municipal court. A few days later, based upon a decision made by the mayor and council, the plaintiff was suspended with pay. Approximately four months after the initial charges, the plaintiff entered a plea of guilty to reckless driving with the other charges being dismissed. The assignment judge was informed of the disposition of the matter (which occurred in a different municipality) after which the assignment judge first entered an order to show cause why the plaintiff should not be removed from her position. Thereafter, he withdrew that order and directed the mayor and council to take disciplinary action. As a result of that direction, after issuing the appropriate notices, the city appointed a hearing officer who conducted a departmental hearing, finding that the plaintiff has engaged in conduct unbecoming a public employee and concluding that termination was appropriate. At the assignment judges’ urging, the city served the plaintiff with a final notice of disciplinary action terminating her employment. Plaintiff appealed to the MSB, challenging her termination. The MSB transferred the matter to the Office of Administrative Law for a hearing. The OAL found that the plaintiff’s behavior constituted conduct unbecoming a public employee for which discipline was warranted, but in light of plaintiff’s unblemished record, the absence of evidence relating to certain of the more serious allegations, and considerations related to progressive discipline, concluded that termination was not warranted and, instead, a 6-month suspension be imposed. Plaintiff appealed that decision to the MSB, arguing that a 6-month suspension was still too severe and that she was entitled to be reinstated to her position. The MSB adopted the OAL’s findings and concluded that it had the authority to direct that the plaintiff be reinstated notwithstanding the objections of the assignment judge. Prior to the plaintiff’s reinstatement, the Appellate Division allowed the judiciary of the state and the assignment judge to intervene and then stayed enforcement of the directive that the plaintiff be permitted to return to work. The Appellate Division, in Thurber v. City of Burlington, 387 N.J. Super. 279 (App. Div. 2006), affirmed the decision of the MSB. Petitions for certification were filed by the city and by the interveners, which were granted by the Supreme Court. Justice Hoens provided a comprehensive review of the evolution of the judiciary system in the State of New Jersey and the relative jurisdictions of the Chief Justice, assignment judges, and the MSB, tracing the history from the 1947 New Jersey Constitution through various Legislative acts, committee reports (both judicial and Legislative) and the ultimate Constitutional Amendment in 1992, which effected a statewide unification of the courts together with a state takeover of funding of the Superior Court. After the adoption of the Constitutional Amendment, the Legislature enacted an implementing statute, the Judicial Employees Unification Act (N.J.S.A. 2B:11-1 to -12). The statute preserved the Judiciary’s unquestioned right to create unclassified positions within the Judiciary and to appoint individuals to fill those positions while recognizing other positions within the Judiciary, which continue to be filled pursuant to civil service guidelines. Thus, as expressed by Justice Hoens: As this historical analysis makes plain, this Court has never relinquished its constitutional authority as it related to judiciary employees. Rather, we have consistently exercised our right to allocate positions either to career service or to judiciary unclassified service. As such, DOP’s [Department of Personnel] inclusion of particular positions among the local government career service titles is consistent with our decision that those titles would be properly placed in career service. By extension, then, our decision also means that employees occupying those titles would enjoy the same statutory rights and privileges as non-judicial career service employees under the Civil Service Act. (citation omitted.) It was conceded in this case that the position of deputy municipal court administrator is a career service position as opposed to a judiciary unclassified service position. That being conceded, it is unquestioned that the MSB has jurisdiction over that career service position. Nevertheless, Justice Hoens cited approvingly from Passaic County Prob. Officers’ Ass’n. v. Passaic County, 73 N.J. 247 at 255, where the Court stated: Only where we are satisfied that the proper exercise of our constitutional responsibility to superintend the administration of the judicial system requires such action would we feel compelled to exert this power in the adoption of a rule at odds with a legislative enactment. . . . [As] a matter of comity and respect for other branches of government, we accept and adopt all statutory arrangements touching or concerning the administration of any courts in the State, as well as such legislative enactments as have to do with public employees whose duties are intimately related to the judicial system. Based upon the foregoing, the Court found that the MSB’s exercise of authority did not impermissibly infringe upon the Court’s authority to makes rules governing the court system. Nevertheless, the Court still had the authority to consider whether the MSB’s decision should be sustained. In affirming that decision, the Supreme Court cited the traditional and well-known standards that are applied to a review of a final agency decision, i.e., whether the decision was arbitrary, capricious or unreasonable, or whether it lacked fair support in the evidence. Campbell v. Dep’t of Civil Serv., 39 N.J. 556, 562 (1963). The Court further cited from Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995), in establishing the criteria that in reviewing administrative actions, the Court looks to three questions: (i) whether the actions violate express or implied legislative policies; (ii) whether the record contains substantial evidence to support the agency determination; and (iii) whether in applying the legislative policies to the facts the agency clearly erred in reaching a conclusion that could not have been reasonably reached. The Court went on to cite its general deferral to agency expertise; an acknowledgement that while such deferral is not given to the agency’s interpretation of a strictly legal issue, the Court cannot substitute its judgment for the agency’s own even though the Court may have come to a different conclusion. In applying these principles to the decision made by the MSB, the Court found that the decision was not arbitrary, capricious or unreasonable, and that the record amply supported the MSB’s decision. In another disciplinary case decided on the same day as the Thurber case, Justice Hoens, again writing for a unanimous Court, found that the theory of progressive discipline is not a fixed and immutable rule to be followed without question and that in certain cases, disciplinary infractions are so serious that removal is appropriate notwithstanding a largely unblemished prior record. In Re Carter, 191 N.J. 474 (2007). As usual, in reviewing the decision of the Merit Board, Justice Hoens applied the same standards as enunciated in the Thurber case and found that the decision of the Administrative law Judge (ALJ), as then confirmed by the Merit Board, was not arbitrary, capricious or unreasonable. The facts of the case were somewhat disconcerting. Bordentown Police Officer John Carter was served with disciplinary notices charging with, among other things, sleeping on duty. Beginning in September 2000, the Chief of Police issued a series of Preliminary Notices of Disciplinary Action related to four incidents involving the officer: (i) failure to request a vacation week in a timely manner and then taking the vacation, providing his supervisor with an out-of-date doctor’s note; (ii) the officer’s use of 97 sick days in a 2-year period and calling out sick to go to a hockey game; (iii) calling out sick to attend a sporting event; and (iv) sleeping on duty. The last charge was extensively articulated, charging the officer with incompetency, inefficiency, failure to perform duties, conduct unbecoming a public employee, neglect of duty, sleeping on duty, failure to check-in on radio, and failure to adhere to the general responsibilities of a police officer. This last charge was the focus of the issue on appeal and arose when information came to the attention of the police chief in July 2000 that Officer Carter might have been sleeping on duty. Officer Carter was issued a written warning that sleeping on duty was not authorized and that if he was found sleeping on duty he would be served with major disciplinary charges. An internal investigation subsequently took place on three successive dates where the investigating officers saw Officer Carter’s patrol car parked on the side of the road with its headlight off. They made several drive-bys at high rates of speed and Officer Carter did not react. Furthermore, Officer Carter failed to promptly respond to a call for assistance from another officer regarding a local disturbance. In addition, using night vision binoculars, the investigating officers observed Officer Carter asleep in the front seat of his parked vehicle for various periods of time, including one time in excess of two hours and totaling more than five hours. With regard to the first three disciplinary actions, Officer Carter received three suspensions for various periods of time. For the sleeping on duty charge, Officer Carter was terminated. He appealed all four disciplinary determinations to the MSB, who referred the matter to the OAL for a hearing. The ALJ found that Officer Carter had slept in his patrol car on three days in June 2001, that he had a history of violations of the rules and regulations and that removal from service was the proper remedy. The MSB accepted the ALJ’s findings. In an unpublished opinion, the Appellate Division agreed with the MSB that there was a factual basis to sustain the charges but concluded that the punishment should be re-evaluated based upon the theory of progressive discipline. The Supreme Court began its review of the Appellate Division decision by setting forth the underpinnings of the progressive discipline concept as set forth in its decision in West New York v. Bock, 38 N.J. 500 (1962). In that case, the Court found that a fire fighter’s prior disciplinary record was “inherently relevant” in determining an appropriate penalty for a subsequent offense and rejected the claim that the discipline must be based on the severity of the current infraction alone. The general theory is that a single instance of improper conduct does not necessarily display an evidence of an attitude of indifference rising to the level of a neglect of duty. It could merely be an aberration or a lapse of judgment. On the other hand, numerous occurrences over a relatively short period of time may connote an attitude of indifference which would rise to the level of a neglect of duty. More recently, the theory of progressive discipline has been discussed in the context of labor disputes governed by collective bargaining agreements that relate to the imposition of discipline, many times finding that the theory of progressive discipline was implicit in contractual disciplinary criteria. While recognizing that the theory of progressive discipline is still valid, the Court observed that the same could not be blindly followed without regard to the seriousness of the infraction for which the employee has been found guilty, evaluating at times “whether such punishment is ‘so disproportionate to the offense, in light of all the circumstances, as to be shocking to one’s sense of fairness,’” In re Polk License Revocation, 90 N.J. 550, 578 (1982). The Court also noted that particularly in disciplinary matters involving police and correction officers, public safety concerns must also bear upon the propriety of dismissal as a sanction. The Court cited approvingly from Township of Moorestown v. Armstrong, 89 N.J. Super. 560 (App. Div. 1965), certif. denied, 47 N.J. 80 (1966), where the Appellate Division recognized and acknowledged that: a police officer is a special kind of public employee. His primary duty is to enforce and uphold the law. . . . He represents law and order to the citizenry and must present an image of personal integrity and dependability in order to have the respect of the public. In reviewing the decision of the Appellate Division, the Court was of the opinion that error was committed because the Appellate Division applied the theory of progressive discipline as an absolute mandate of law. The Supreme Court cited with approval the ALJ’s evaluation that the offending behavior of sleeping on duty itself was adequate to support the severity of the penalty. In analyzing whether that decision was arbitrary, capricious or unreasonable, the Court found that it was not. So as not to have any misperception of the Court’s determination, it ended its decision with this caveat: We do not suggest that removal is always the appropriate sanction to be imposed on a police officer who is found sleeping while on duty. Circumstances relating to other officers or staffing patterns and practices in other municipalities might well dictate the imposition of a different penalty on another police officer. Nonetheless, in mandating that only a lesser penalty could be imposed, our appellate panel exceeded its proper role and inappropriately substituted its view for that of the appointing authority and the Board. One month after the issuance of this decision, the Supreme Curt fortified its view that the concept of progressive discipline is not absolute. In the Matter of Tammy Herrmann, 192 N.J. 19 (2007). In that case, a unanimous Supreme Court again allowed for a termination for a single act citing from this earlier decision on the same issue. In the third disciplinary opinion penned by Justice Hoens for a unanimous Court, the issue involved the time period limitation set forth in N.J.S.A. 53:1-33 governing the suspension and removal of state troopers. Roberts v. State of New Jersey, Division of State Police, 191 N.J. 516 (2007). A somewhat similar provision is contained in the municipal and county law under N.J.S.A. 40A:14-147. In general, both provisions require that a complaint charging a violation of internal rules and regulations established for the conduct of law enforcement officers shall be filed no later than the 45th day after the date on which the person filing the complaint obtained sufficient information to file the matter upon which the complaint is based. While again the facts in the case are troubling, the generic sequence of events is typical. When the girlfriend of State Trooper Roberts filed a domestic violence complaint with the local police, she claimed that Trooper Roberts had broken her arm in an incident the previous October. The local police reported the charges to the state police, who then began an internal disciplinary investigation. During the investigation, Roberts’s girlfriend advised that Roberts planned to file a claim for her broken arm with his homeowners insurance policy claiming that she was injured in a fall down a flight of stairs. Because that activity, if proven, would have constituted an attempt to defraud an insurance company, the State Police suspended its internal investigation and turned the matter over to the Division of Criminal Justice. On Dec. 22, 2003, the Division completed its criminal investigation and determined that there was insufficient evidence to prosecute Trooper Roberts for insurance fraud. The State Police then resumed their internal disciplinary investigation and on Feb. 17, 2004, issued a report to the Superintendent of State Police who, three days later, authorized disciplinary charges to be filed against Roberts, including a reprimand and suspension. The disciplinary notice was served on March 2, 2004, approximately two weeks after the superintendent received the report of the internal investigation. Trooper Roberts challenged the disciplinary action as being untimely on the basis that the charges were filed more than 45 days after the criminal investigation ended. The state police responded that the statutory time period does not begin until the superintendent, who is the person authorized to file the appropriate disciplinary charges, if warranted, has or comes into possession of “sufficient information to file the matter upon which the complaint is based.” Moreover, they noted that the time period for filing charges is suspended during a criminal investigation. The state police argued that the 45-day period began to run once the superintendent received the report of the internal investigation. In a published Appellate Division decision, Roberts v. Div. of State of Police, 386 N.J. Super. 546 (App. Div. 2006), the untimeliness argument presented by Roberts was rejected. The Supreme Court granted certification and the Court unanimously opined that when there is a concurrent criminal investigation of what began as a disciplinary matter, the applicable time limit within which disciplinary charges should be filed is 45 days after the superintendent has obtained the internal investigation report. Here, the 45-day period actually began to run on the date that the superintendent received sufficient information upon which to base a disciplinary charge, as set forth in the completed internal investigation report. It does not begin to run upon the disposition of the criminal matter because in so interpreting the statute in that fashion, there could well be insufficient time for a proper and thorough internal investigation to take place. In arriving at this conclusion, the Court examined the legislative history of the applicable statute, looking first at the plain language of the statute and, if the examination of the plain language of the statute can result in multiple interpretations, the Court would consider other sources to discern the Legislature’s intent, including the legislative history, sponsors’ statements, committee reports and other extrinsic evidence. Here, the Court found that the plain meaning the statute set forth in its language is not clear and thus, the Court resorted to the extrinsic aids noted above. The Court noted that the original draft of the bill did not refer to the “applicable time period” but instead referred to the “45-day limit shall begin [to run] on the day after the disposition of the criminal investigation.” Then Acting Governor DiFrancesco conditionally vetoed the bill and recommended the insertion of the term “applicable” or “applicable time” into the statute in lieu of the two later referenced to 45 days in the original bill. The acting governor justified this suggested change to balance the potential for an undue delay in bringing the charges with an interest in conducting a thorough and complete investigation prior to filing the charges. The Legislature concurred with the acting governor’s veto message and amended the bill to refer to “applicable time limit” rather than the “45-day time limit.” The Supreme Court interpreted this modification as representing “an intention to avoid a rigid time requirement in favor of sufficient flexibility to permit the internal investigation to be conducted following the completion of the criminal process.” The Court went on to discount to some extent the sponsors’ expressed intention because those intentions were expressed prior to the time that the bill was amended. Furthermore, the Court declined to interpret similar language referring specifically to the “45-day limit” in the original bill and as actually enacted in 1971, N.J.S.A. 40A:14-147, the companion municipal police statute, leaving that interpretation for another day. Consequently, it is possible that the Supreme Court, in interpreting the municipal police companion statute, may come to a conclusion different from their conclusion in the Roberts case. In summarizing their position, Justice Hoens stated: We therefore conclude, based on this analysis of the relevant legislative history, that the Legislature intended to balance three competing considerations. Those considerations are the need for a complete and thorough internal investigation, the need for deference to a related criminal investigation, and the interests of the particular trooper to be free of undue delay in being charged. With that conclusion reached, the Court then evaluated the substantive argument asserted by the Appellant. Trooper Roberts asserted that the state police had sufficient information upon which to charge him the day it received the domestic violence incident report from the local police. In the alternative, he argued that at various subsequent times the state police had sufficient information to file charges, such as the date that he filed his untimely self-report of the domestic violence incident as required under the rules and regulations. Trooper Roberts further argued that the time for filing the charges begins the day after the disposition of a concurrent criminal investigation regardless of whether the superintendent has obtained sufficient information to file the matter upon which the complaint is based. In reviewing these arguments, the Court began by noting that it is not the event in question that activates the clock for the purpose of evaluating time limits, but instead the receipt by the person authorized to file charges of sufficient information to justify such filing. The Court approvingly cited to the Appellate Division, which found that the superintendent can file a charge only upon his receipt of the investigative report that satisfies the sufficiency of the information. Trooper Roberts, however, focused on the different time frame in the case where the subject matter of the investigation is linked to a concurrent criminal investigation. In that situation, he argued that the statute establishes a rigid 45-day time period from the date that the criminal investigation is concluded, within which the charges must be filed irrespective of whether a thorough and complete investigation has been completed by that time. The Supreme Court rejected that interpretation since it would impose a time limit without regard to the completion of a thorough investigation prior to the filing of the charges. Citing specifically from this record, Justice Hoens observed the fallacy of that analysis: Here, the internal investigation was suspended during the criminal investigation. Ultimately, Roberts was not subject to criminal charges, because OIFP [Office of Insurance Fraud Prosecutor] concluded there was a lack of sufficient evidence. At that point, the internal investigation was resumed. That investigation culminated in an interview of Roberts that the State Police assert was needed in order for its investigation to be both thorough and complete. Within days of that interview, the investigative report was finalized and forwarded to the Superintendent, and the charges were authorized. Were we to adopt Roberts’s reasoning, however, we would require charges to be filed prior to the time when Roberts would have been interviewed. The Supreme Court declined to interpret the statute in a manner that would curtail or abbreviate the time period within which the investigation should be completed to meet an arbitrary deadline, citing with approval the observation by Judge Payne in the Appellate Division case: It would be illogical for the Legislature to have provided the necessary investigative period to determine whether disciplinary charges should issue when no criminal conduct has been alleged, but to have shortened that period when potential criminal conduct is under investigation. We decline to infer an intent to achieve such an unreasonable result. Roberts v. Div. of State of Police, 386 N.J. Super. 546, 552-553 (App. Div. 2006). Finally, Justice Hoens tempered the Court’s decision by noting that the facts in this case did not demonstrate any unnecessary delay or artificial protracted proceedings. The Court observed that the decision to await the completion of the interview of Trooper Roberts was an important part of the internal investigation in the interest of fairness and completeness and that the superintendent acted promptly after being provided with the underlying information. As mentioned above, because the municipal police statute includes reference to the “45-day time limit” in the same places where the state trooper statute has substituted the phrase “applicable time period,” it cannot be said with certainty that a similar challenge at a local level would result in the same conclusion. On the other hand, the Supreme Court’s overriding standard appears to be that a prompt, fair, thorough and complete investigation be undertaken prior to the consideration of the imposition of charges and therefore, it would appear that a complementary ruling would issue from the Supreme Court were the facts in the case related to the actions of a municipal police officer under N.J.S.A. 40A:14-147. In Stomel v. City of Camden, 192 N.J. 137 (2007), the Supreme Court determined that a municipal public defender, appointed under the Municipal Public Defender Act (MPDA), N.J.S.A. 2B:24-1 to -17, was an employee for the purposes of bringing a claim under the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8. Furthermore, the Court determined that the City of Camden could be held vicariously libel under the Civil Rights Act, 42 U.S.C.A. � 1983, for the illegal acts of the city’s mayor in removing the municipal public defender. Plaintiff served as Camden’s part-time municipal public defender for 17 years until 1999. After his initial appointment, the plaintiff was reappointed annually through Oct. 31, 1998. In the fall of 1997, Camden’s municipal prosecutor solicited a campaign contribution from the plaintiff on behalf of the then Camden Mayor Milan, advising the plaintiff that his reappointment could not be guaranteed unless he “contributed” $5,000 to the then mayor’s re-election campaign. Plaintiff reported the incident to the Camden County Prosecutor’s Office and to United States Attorney’s Office, made the $5,000 contribution and was reappointed as the municipal public defender for the 1997-1998 contractual period. An indictment of the municipal prosecutor followed and at the criminal trial, the plaintiff appeared as a government witness, with his testimony directly implicating Mayor Milan. After a mistrial was declared in the criminal matter, Mayor Milan advised the plaintiff in writing that he was being replaced by another lawyer pending final approval by the city council. Plaintiff filed a verified complaint and order to show cause against the city, Mayor Milan and the city council, charging a violation of CEPA. After issuing an initial temporary injunction, the trial court subsequently lifted the same and permitted the city to appoint another public defender. However, in February 2000, the mayor was unable to garner sufficient support from the city council for the appointment of a new public defender, and the plaintiff retained his position until Mayor Milan was replaced as mayor by Gwendolyn Faison in December 2000. Mayor Faison appointed a new municipal public defender in March 2001, with the consent of the council. The plaintiff then filed an amended complaint, naming the new mayor as a defendant and adding a Civil Rights claim under 42 U.S.C.A. � 1983. The Law Division dismissed the CEPA claims, concluding that the plaintiff was not an employee of the city within the meaning of the statute and further dismissed the Section 1983 claims against all defendants, except Mayor Milan individually, on the basis that the city was not vicariously liable for the action of Mayor Milan because he was not the final decision maker or policy maker with regard to the municipal public defender position. The Appellate Division affirmed the trial court’s determination on the Section 1983 claim, but reversed on the CEPA issue, finding that the plaintiff was an employee for the purposes of CEPA. Justice LaVecchia, writing for the Supreme Court majority, first examined the Section 1983 claim and noted that a municipality is generally not liable in a Section 1983 action for the acts of its employees under the doctrine of respondeat superior. An exception exists, however, when an official policy or custom is the cause for the constitutional deprivation. This “official policy” exception “was intended to distinguish the acts of the municipality from the acts of employees of the municipality, and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible. While that official policy is generally articulated in government laws or practices, under certain circumstances the act of a particular municipal policy maker can impute liability to the municipality. Whether the act is sufficient to establish an unconstitutional municipal policy is determined by applying several guiding principles as recently set forth in Loigman v. Township Committee of Middletown, 185 N.J. 566, 591 (2006). In that case, the Supreme Court ruled that in addition to proof that the municipality officially sanctioned the policies, the municipality is subject to liability only for acts of officials who have final policy-making authority, which is determined by examining state law. Moreover, for vicarious liability to attach, the unconstitutional action must have been taken pursuant to a policy adopted by the official or officials who are responsible under state law for making policy in that area. Applying these guiding principles to the current case, the Supreme Court first found that since the plaintiff had been successful in his 1983 action against former Mayor Milan individually; the jury had already made a factual determination that Mayor Milan unlawfully removed the plaintiff from his position as municipal public defender for the purposes of Section 1983. In examining whether Mayor Milan had “final policy making authority” to remove the plaintiff as the public defender, the Court examined the provisions of the MPDA and the Faulkner Act, under which the City of Camden operated. Looking first to the MPDA, the Supreme Court noted that N.J.S.A. 2B:24-4(e) provides for the removal of the public defender by the governing body “for good cause shown after a public hearing and upon due notice and an opportunity to be heard.” Noting that the term “governing body” was not defined, the Court concluded: [T]he MPDA’s reference to ‘governing body’ was merely a shorthand reference to the Faulkner Act and to the specific municipal government structure (with its division of authority) that applies to the municipality at issue � in this case, Camden. The Court acknowledged that under the Faulkner Act’s Mayor/Council form of government, the mayor exercises administrative or executive functions, while the council exercises legislative and investigative functions. The Court noted that while the council can remove municipal officers for cause, the mayor has the corollary power to remove department heads and other municipal executives unless the council, within 20 days of being notified of the mayor’s intention to remove a department head, disapproves the removal by a two-thirds vote of the entire Council. However, despite the council’s ability to override the mayor’s removal of a department head, the Supreme Court was satisfied that the mayor was “the authorized decision-maker responsible for contracting with . . . plaintiff] . . . for public defender services.” The Court then found that “the Council effectively ratified the Mayor’s action when it did not exercise its veto power.” Despite the council’s potential involvement in the removal process (which was not exercised in this case), the Supreme Court still found that the mayor exercised removal power, particularly because of the council’s failure to act. That situation, in their view, was sufficient to bring the matter into the ambit of the municipality’s vicarious liability. With regard to CEPA, the Court affirmed the Appellate Division’s determination that the municipal public defender position was in fact an employee position, allowing for the assertion of a CEPA claim. Justice LaVecchia reviewed the standards set forth by the Appellate Division in Pukowsky v. Caruso, 312 N.J. Super. 171, 182-83 (1998), which established 12 factors to be considered in the analysis. The Supreme Court cited to its simultaneous opinion, D’Annunzio v. Prudential Insurance Co. of America, 192 N.J. 110 (2007), issued the same day as the Stomel opinion, which focused “on three over-arching considerations that are important when examining a contractor’s relationship with an employer for the purposes of CEPA. In examining those factors, the Supreme Court affirmed the determination of the Appellate Division that because the city (i) is required to provide a public defender; (ii) required the plaintiff to represent clients assigned to him by the city; and (iii) required the plaintiff to appear in Court at designated times, coupled with the fact that the plaintiff was paid with a monthly check based upon an annual salary and that the plaintiff was not free to choose his own clients on behalf of the city, there was adequate evidence to support the determination that the plaintiff was an employee for the purposes of pursuing his CEPA claim. Justice Rivera-Soto concurred with the determination that the Section 1983 claims should pass through to the city, but dissented from the determination that plaintiff was an employee for the purposes of CEPA, for the reasons set forth in his dissent in the companion D’Annunzio case. It is difficult to understand the Supreme Court’s reasoning that the council’s ability to override the mayor’s removal of the public defender was insufficient to support a determination that the mayor did not have the final authority with respect to the removal of municipal public defender. While it is acknowledged that the council had to act affirmatively to disapprove the mayor’s initial determination, the fact remains that the council statutorily possesses the power under the Faulkner Act to override the mayor’s determination. How it can then be determined that the mayor had the final authority to dismiss the municipal public defender is problematic. Similarly, with regard to the determination that the plaintiff was an employee for the purposes of CEPA, the Supreme Court focused on only three of the 12 principles that had to be met in order for the plaintiff to be determined to be an employee. It appeared from the recitation of facts in the opinion that most of the 12 criteria pointed to the fact that the municipal public defender was an independent contractor and not an employee. All of the traditional indicia of the plaintiff being an employee were non-existent. In fact, one of the primary factors considered by the Supreme Court as set forth in D’Annunzio was the degree to which there was a “functional integration” of the employer’s business with that of the independent person’s work. The Supreme Court affirmed the Appellate Division’s rejection of the traditional right to control test, but agreed that the plaintiff’s “work as an attorney representing the City’s indigent defendants required that he exercise independent professional judgment for his clients without City supervision.” The Appellate Division had cited a number of factors that, in their view were, indicated an employer-employee relationship, including the fact that the plaintiff was not free to choose his own clients and was required to submit written reports to the city detailing his activities. All of this reasoning seems to fall short of the mark in terms of whether a municipal public defender should be deemed to be an employee for the purposes of CEPA under these contractual circumstances. Perhaps one explanation for the Court’s determination encompasses the pay-to-play aspects of this case and the intention to afford recoverable relief from one aggrieved by the blatant pay-to-play activity illustrated in this case. Frivolous Litigation In what may signal the end for litigation arising out of the dispute between Toll Brothers, Inc. and the Township of West Windsor, the Supreme Court weighed in on what in many cases is an ancillary issue in this type of litigation � frivolity. In Toll Brothers, Inc. v. Township of West Windsor, 190 N.J. 61 (2006), Justice LaVecchia wrote for a unanimous court that a motion for attorneys’ fees pursuant to the frivolous litigation statute, N.J.S.A. 2A:15-59.1, could be brought by a prevailing party against a nonprevailing party only if the prevailing party had previously activated the safe harbor provisions of Rule 1:4-8 to the extent practicable. This case represents the Supreme Court’s first foray into the relationship between the frivolous litigation statute, N.J.S.A. 2A:15-59.1 and the related Court Rule 1:4-8 allowing the imposition of sanctions against attorneys and pro se parties. The frivolous litigation statute, enacted in 1988, applies only against the nonprevailing party. Attorneys are not covered under the frivolous litigation statute. McKeown Brand v. Trump Castle Hotel and Casino, 132 N.J. 546 (1993). As a result of this decision, however, Rule 1:4-8 was amended to allow for sanctions against an attorney and/or a pro se individual whose actions were without basis. The rule differed in various aspects from the frivolous litigation statute, the predominant difference being that under the rule, before an application for sanctions can be made, a written notice setting forth the improper conduct had to be given by the prevailing attorney or pro se individual to the attorney or pro se party that signed the offending paper with a demand that the improper conduct cease. This safe harbor provision is not in the frivolous litigation statute which dealt with parties at the time. The rule applicable to attorneys and pro se parties, however, was subsequently amended to make the safe harbor provisions applicable to parties who made claims under the frivolous litigation statute, to the extent that the applicability of the rule was practicable. In this case, the trial court had dismissed the motion for fees under the frivolous litigation statute on the basis that a municipality was immune from the imposition of such sanctions. The Appellate Division affirmed the trial court’s decision, not by addressing whether the township was immune from the payment of attorneys’ fees to the prevailing party, but instead on the basis that the applicant failed to comply with the safe harbor provisions of R. 1:4-8. The Appellate Division, however, did not examine any factors to determine the extent to which the safe harbor provisions could be practically applied to the situation. The Supreme Court first reviewed the history of both the legislation and the rule, noting that its decision in McKeown Brand v. Trump Castle Hotel and Casino, 132 N.J. 546 (1993), prompted the amendment to Rule 1:4-8 to authorize the award of sanctions against an attorney. The Court went on to point out that the amendment to the rule included a provision making the safe harbor provisions of it applicable to the frivolous litigation statute, to the extent practicable. The Supreme Court noted that while the Appellate Division found that the applicant had clearly failed to invoke the safe harbor provisions of the Rule and therefore dismissed the applicant’s claim, it never examined the extent to which application of the safe harbor provisions was practicable as required under the Rule amendment. While it could be inferred that the Appellate Division found that the safe harbor provision could have been invoked in the case before it by its finding that the failure of the applicant to invoke the same resulted in a dismissal of their claim, the Supreme Court was of the view that the Appellate Division needed to more carefully examine that question. If the Appellate Division found that the safe harbor provisions could have been applied in the context of the case but were not, the claim for attorneys’ fees under the frivolous litigation statute would be denied. On the other hand, if the Court found that safe harbor provisions could not be practically invoked, then the claim for fees under the frivolous litigation statute would likely be granted. The difficulty that parties will face in utilizing the rule in conjunction with the frivolous litigation statute is that the frivolous litigation statute generally relates to the ultimate disposition of the case, not particular stages of it as it moves along. The overall view of the frivolous litigation statute is the bringing of the litigation itself as opposed to any individual aspect of it. It is submitted that the applicability of the rule to the frivolous litigation claims will require ultimately prevailing parties to have previously submitted to the nonprevailing party during the course of the litigation a variety of notices to cease and desist of various specific activities being undertaken, a task sometimes more daunting than not. While a court could determine that it was not practicable to send these demand notices, a prevailing party never knows that until the Court is asked to make the determination and by then it is too late to cure any defect. Thus, this case will likely compel parties who would otherwise wait until the litigation is over to make a determination as to whether to ultimately seek counsel fees, even though they claim the same during the course of the litigation, to now make a variety of demands during the course of the litigation to preserve the right to ultimately claim reimbursement of attorneys’ fees on the basis that the litigation is frivolous. The Supreme Court in Thompson v. City of Atlantic City, 190 N.J. 359 (2007), explored the manner in which settlements of litigation are negotiated and approved in Faulkner Act municipalities as well as the interplay of conflict of interest rules in considering such settlements. In Thompson, the Supreme Court invalidated a settlement agreement between Atlantic City and its own mayor. Justice Albin, writing for a unanimous Court, succinctly summarized the case in the first three paragraphs of his written opinion. This summary cannot be improved upon and therefore, will be quoted in full: At the time Lorenzo Langford became mayor of Atlantic City in 2002, he and a political ally, William Marsh, had a pending federal civil rights lawsuit against the City. Shortly after he assumed his post as mayor, Langford’s municipal appointees negotiated a settlement of the federal suit with Langford’s and Marsh’s private attorneys in the amount of $850,000. With the case settled, a federal judge entered an order of dismissal. The State’s Office of Governmental Integrity (OGI) then sought to have the settlement rescinded in the Law Division because of various violations of the state’s conflict of interest laws. The trial court acknowledged that the settlement violated state law, but declined to void it as a matter of comity to our federal courts. The Appellate Division disagreed with that approach, determining that the conflicts vitiated the settlement. Applying principles of equity, the appellate panel then ordered that Langford and Marsh be allowed to seek relief first in federal court and, if that failed, to return to state court for a hearing to decide the reasonableness of the settlement. The primary purpose of conflict-of-interest laws is to ensure that public officials provide disinterested service to their communities and refrain from self-dealing. A secondary purpose is to promote confidence in the integrity of governmental operations. The conflict-ridden actions of Mayor Langford’s political appointees, entering into a financial settlement to benefit their boss at the expense of the city, can hardly be viewed as disinterested or inspiring confidence in government. We now hold the city’s settlement with its own mayor was so infected with conflicts of interest that it is void as a matter of state law. Because the city’s unlawful settlement agreement with Langford and Marsh is a nullity, the monies disbursed to both must be returned to the municipal coffers. Any further relief sought by Langford and Marsh, such as reinstating the civil rights suit, must be pursued in federal court. 190 N.J. at 363-64. At the trial level, in a prerogative writ matter brought by the Inspector General, the Law Division judge found that the settlement violated the Faulkner Act due to multiple conflicts of interest and therefore was invalid. However, the trial court found that it was without power to invade the jurisdiction of the federal court by vacating a settlement which resulted in the dismissal of federal litigation. The OGI appealed. The Appellate Division agreed with the trial court that the settlement was invalid but found that it was not powerless to invalidate the settlement and to fashion an equitable remedy including a constructive trust. The Appellate Division ordered a remand to the trial court to allow the parties a full opportunity to be heard and to make the ultimate disposition of the settlement proceeds. In reviewing the Appellate Division decision, Justice Albin began by briefly reviewing the governmental structure of Atlantic City. He observed that Atlantic City is organized under the Faulkner Act Mayor Council Plan, N.J.S.A. 40:69A-32(a). As a result of the mayor’s executive function and authority to negotiate and sign all contracts, subject to the approval or rejection by the council, the Court found that since a settlement agreement between the parties to a lawsuit is a contract, “when a municipality is involved in litigation, it necessarily falls within the mayor’s purview to decide whether to enter into a settlement and, if so, to negotiate the terms of the settlement.” Here, however, the question is raised as to whether a conflict exists that disqualified the mayor from acting for his own personal benefit in negotiating such a settlement and whether that conflict also disqualifies those who generally answer to the mayor or are directly beholden to him in his official capacity. In answering that question, the Court looked at common-law conflict of interest provisions and the supplemental Local Government Ethics Law. N.J.S.A. 40A:9-22.1 to -22.25. Atlantic City had enacted a local code of ethics that, as required, tracked the language of the state code providing, among other things, “[n]o officer or employee shall use or attempt to use his or her official position to secure unwarranted privileges or advantages for himself or others.” Moreover, the municipal code tracked N.J.S.A. 40A:9-22.5d by stating “[n]o officer or employee shall act in his or her official capacity in any matter where he or she has . . . [a] personal involvement that might reasonably be expected to impair his objectivity or independence of judgment.” Applying these tenets, Justice Albin found that the executive branch officials who negotiated and approved the settlement with the mayor and his ally were afflicted by disqualifying conflicts. Although the Court painstakingly reviewed each one, suffice it to say, that for any municipal practitioner, it is obvious that what was done in this case in Atlantic City was simply unacceptable. The Court then went on to examine the relationship between the jurisdiction of the federal court and state courts in a situation where a settlement agreement terminates a federal lawsuit. After providing “a short primer on principles of federal jurisdiction and an examination of . . . [the federal] dismissal order to determine if the federal court retained jurisdiction to resolve OGI’s challenge to the settlement agreement,” the Supreme Court concluded that there was nothing in the federal court order indicating a desire for the federal court to retain jurisdiction over the settlement agreement and therefore, the Court concluded here that it has jurisdiction over the same. Finally, in deciding the remedy that should be applied here, the Court determined that the settlement proceeds should be returned pending a hearing. The Court acknowledged that the only remedy available for the plaintiffs is to reopen the federal lawsuit under Section 1983. The Court concluded its opinion by removing any implications that the federal court, under Judge Joseph Irenas’s signing of the dismissal order, condoned in any way the action of the parties. In absolving Judge Irenas, Justice Albin stated: We are confident that had Judge Irenas been informed of what our Court now knows he would have not tolerated a settlement agreement mired in entangling conflicts of interest. Our federal and state courts are mutually dedicated to the integrity of every facet of our civil justice system. People will never have trust in the system so long as municipal officials are perceived as pursuing a personal rather than a public interest. We have done our best to be respectful of the jurisdictional bounds that separate our federal and state courts and not to interfere with a matter falling within the distinct preserve of the federal district court. To the municipal practitioner, the recitation of the facts in this case and the multiple ethical and moral lapses are appalling. In fairness, it must be noted that the council’s individual solicitor expressed multiple concerns about the level of conflicts and noted that the council is approving a settlement with a sitting mayor who is a former council member. Counselor Fauntleroy advised the council to withhold voting until a written opinion was issued addressing the potential conflicts of interest, but to no avail. Despite that, Fauntleroy persisted by rendering a written opinion on the issue forcing the council into an executive session to discuss the letter. The Supreme Court summarized the content of the letter by stating that Fauntleroy explained that a potential conflict of interest existed and that the council retain an independent attorney, unconnected to the mayor, to determine if the settlement was in the best interest of the city. Two weeks later, the council reconsidered the conflicts issue but came out the same way. The fact that at least some of the municipal attorneys involved in this matter recognized the problem and gave proper advice that was ignored by a majority of the governing body is comforting. While municipal practitioners can provide good advice, unfortunately, at times clients decline to follow it. Here, had that advice been heeded, this entire despicable affair could have been avoided. In In Re: Lead Paint Litigation, 191 N.J. 405 (2007), the Supreme Court analyzed the scope of a municipality’s ability to assert certain claims for damages in light of certain legislative determinations addressing the consequences of the use of lead paint. This case is primarily a toxic tort case, and was summarized in detail in a previous edition of this publication, see, “Local Governments’ Lead-Paint Case Dismissed” by Lewis Goldshore and Marshall Wolf, 189 N.J.L.J. 236 (July 16, 2007). For the purposes of this review, the Supreme Court, in a 4-2 ruling, found that the City of Newark along with 25 other jurisdictions did not state a cognizable claim for alleged fraud, public nuisance, civil conspiracy, unjust enrichment and indemnification consistent with the well-recognized parameters of the Common Law Tort of Public Nuisance The Supreme Court found that the Legislature recognized that the appropriate target of the abatement and enforcement scheme must be the premises owner whose conduct created the nuisance and that to characterize the lead paint as a public nuisance would improperly stretch the theory to the point of creating strict liability on the manufactures of ordinary consumer products. The Court concluded that because the complaints seek damages rather than abatement, they fall outside of the scope of remedies available to a public entity and therefore, the public entity can only proceed in the manner of private plaintiffs. Since the plaintiffs have not and cannot identify a special injury to which an award of money damages may attach, because all of the injuries identified are general to the public at large, there is no cognizable claims of public nuisance that can be stated. Conclusion As can be seen, the Supreme Court issued seminal decisions in the area of eminent domain and disciplinary practice. No doubt their expansion of eminent domain rights to preserve open space counterbalanced by their limitation on using eminent domain to acquire improved or actively used real property in the redevelopment sphere has established a relatively bright-line test for municipalities to apply in evaluating whether they can sustain an eminent domain action. The ability of municipalities to terminate an employee for a single deviant incident of employment will ensure that municipalities have the ability to properly deal with personnel and human resources in a way that will give the public assurance that behavior that would otherwise result in the termination of employment in the private sector results in the same consequence in the public sector. It remains to be seen whether the somewhat dichotomous interpretation of the conflicts-of-interest rules and Rules of Professional Conduct for public-sector attorneys will result in unintended consequences and whether the clarification that municipal meeting can be privately videotaped will usher in an era of political advertisements that utilize selectively edited comments of incumbent municipal officials. Overall, it was an interesting term for the municipal practitioner. Buzak, a solo practitioner in Montville, is former president of the New Jersey Institute of Local Government Attorneys and serves in the Municipal Land Use Law Technical Drafting Committee.

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