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The National Smokers Alliance, which successfully challenged Princeton, N.J.’s smoking ban, is pursuing a governmental ethics complaint against an official who voted for the ordinance while her law firm worked for anti-smoking organizations. The Alexandria, Va.-based group lodged its complaint on Dec. 14 against Katherine Benesch, a member of the Princeton Regional Health Commission that passed the ordinance. The complaint filed with New Jersey’s Local Finance Board charges that Benesch had a conflict of interest when she voted for the ordinance because her law firm, Haddonfield, N.J.’s Archer & Greiner, had been paid $8,500 by the American Cancer Society and New Jersey Breathes — an anti-smoking group — to study local tobacco ordinances. Benesch is also a nonequity partner in the firm’s Lawrenceville, N.J., office, and the complaint says that while she was participating in health commission deliberations over the proposed ordinance, she was drafting a report at Archer & Greiner that examined the validity of anti-smoking ordinances. She completed the report on March 13, 2000, and took part in the unanimous June 1 vote to enact the ordinance. New Jersey Breathes and the American Cancer Society termed the $8,500 paid to Benesch a grant. Benesch calls the ethics complaint “pure harassment” and says the Smokers Alliance is looking to persuade the state Legislature as it prepares to address the issue of indoor smoking. “This is nothing but a harassment tactic to prevent people in public positions from taking positions contrary to Phillip Morris, the group that had formerly funded the National Smokers Alliance,” Benesch says. The group made the same accusations about Benesch’s ties to anti-smoking groups in the suit it filed last June to overturn the law. But Mercer County Superior Court Judge Linda Feinberg did not address the question of a conflict when she ruled in August that the ordinance was pre-empted by state statutes. The Princeton ordinance banned smoking in almost all indoor places, including restaurants, stores and movie theaters. It exempted private homes, tobacco shops and hotels with separate ventilation systems for each room. Princeton decided not to appeal Feinberg’s ruling. After Princeton’s court defeat, bills were introduced in both houses of the New Jersey Legislature to permit local governments to institute indoor smoking bans like the one in Princeton. The bills — S-1559, introduced by Sen. Shirley Turner, D-Mercer, and A-2781, introduced by Mercer County Democratic Assembly members Reed Gusciora and Bonnie Watson Coleman — have been referred to the health committees in their respective houses. In its suit against Princeton, the Smokers Alliance used Ross Lewin, now a partner in the Princeton office of New Brunswick, N.J.’s Windels Marx Lane & Mittendorf. But Lewin declined to take the ethics matter because some of his former law partners are now at Benesch’s firm, so the Smokers Alliance hired George McCarter, a partner with McCarter & Higgins in Shrewsbury, N.J. Lewin says he supports the ethics complaint. McCarter says the Smokers Alliance is pursuing the complaint against Benesch even after winning in court because it feels strongly about the ethics question. “I think they felt there was some very serious misconduct. It was ignored by the Princeton Regional Health Commission. It was ignored by Ms. Benesch,” McCarter says. The complaint says Benesch violated a provision of the Local Government Ethics Law, N.J.S.A. 40A:9-2.1 et seq., that “no local government officer or employee shall have an interest in a business organization or engage in any business, transaction, or professional activity, which is in substantial conflict with the proper discharge of his duties in the public interest.” But William Kearns, counsel to the state League of Municipalities, says courts considering potential conflicts by volunteers on local boards have been lenient in cases of professional advisers, as opposed to direct owners of businesses. “Local governments would be seriously handicapped if every possible interest, no matter how remote and speculative, would serve as disqualification of an official. If this were so, it would discourage capable men and women from holding public office,” wrote the state Supreme Court in Van Itallie v. Franklin Lakes, 28 N.J. 258 (1958). The ethics complaint will be investigated by the New Jersey Division of Local Government Services, which could recommend charges to the seven-member Local Finance Board, says Tom Damm, spokesman for the New Jersey Department of Community Affairs. If the board finds merit to the accusation, it could issue fines of up to $500. Benesch is represented by Michael Herbert of Princeton’s Herbert, Van Ness, Cayci & Goodell, who did not return telephone calls seeking comment.

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