Ethics complaint filed against three township officials

November 2, 2017 - For immediate release - on behalf of the signers of Ethics Complaint sent to Hillsborough Ethics Standards Board on October 17th, prepared by Roger Koch

As recently reported in the news, local Hillsborough residents recently filed ethics complaints with the Hillsborough Ethics Standards Board against Committeewoman, and current candidate for re-election, Gloria McCauley, Township Administrator Anthony Ferrara and Committeeman Burchette alleging that they violated their ethical responsibilities in violation of State and Township law by using their official positions in the Township for personal benefits not available to other citizens in Hillsborough. Over 40 signatures of concerned township residents accompanied these complaints. The alleged violations were previously reported in detail in news reports along with denials by the accused Township officials. However, what has not been published is any response to the self-serving and incorrect factual and legal bases for the denials from those township residents who filed the ethics complaints. Below is set forth that response.

Committeewoman McCauley, and Administrator Ferrara, denied what are well documented facts in the complaint. There is no denying that when Administrator Ferrara was evaluated for a raise in salary, McCauley voted in favor of the raise, and when Ferrara sought a realtor to list for sale his house, he hired McCauley rather than any other realtor who had not voted to give him a pay raise. Similarly, McCauley agreed to list Ferrara’s house for sale and accept the real estate commission, even though she had also voted to approve of giving Ferrara a raise. She could have either recused herself from voting in favor of Ferrara’s raise if she anticipated doing real estate business with him, or she could have referred him to another realtor who had not voted to give him a raise as part of her official duties as a member of the Township Committee.

These two events, Ferrara’s raise and McCauley’s commission from listing for sale Ferrara’s house resulted in financial benefit to both people involved. These actions by Ferrara and McCauley are undeniable and were alleged in the ethics complaint as violations of the following State laws for which there are comparable township ordinances, N.J.S.A. 40A:9-22.5 (a), (c), (e) and (f) all of which prohibit municipal elected officers and employees from violating their duties to only act in the best interest of the public and not use their position to in any way to gain some benefit for themselves not available to Hillsborough residents and especially Subpart (e) mentioned above, which prohibits McCauley and Ferrara from “undertake(ing) employment or service, whether compensated or not, which might reasonably be expected to prejudice his (or her) independence of judgment in the exercise of his or her official duties. It appears that neither of these two Township officials were aware of the ethics laws related to their actions and neither considered how their private financial dealings with the other could potentially prejudice or influence, (consciously or unconsciously) what should be their independence in judgment when conducting their official job duties.

Remarkably, the Hillsborough Township attorney, William Willard provided self-serving defenses for the individuals accused of wrong doing, apparently choosing to represent only their interests instead of the “township residents” who filed the complaint, whose tax dollars pay his legal fees, and who he should be just as available to assist as the accused members of the Township Committee as well as all other residents of the Township. His conflicting interests, between his legal duty to serve the best interests of all the Township with his obvious inclination to just represent the political interests of the Republican members of the Township Committee, is especially disturbing to the township residents who filed the complaint, who expected a fair response from the Township and a fair hearing of their complaints. All Hillsborough residents should likewise be disturbed by Mr. Willard’s partisan behavior favoring the Republican accused Township Committee members instead of everyone in the town’s interests.

Moreover, the defenses offered by Willard for the behavior by Committeewoman McCauley and Administrator Ferrara, defy the above referenced documented evidence against both. Willard is quoted as saying in news reports that the ethics complaint against McCauley and Ferrara is “nothing more than an unsubstantiated partisan attack launched just prior to the upcoming election for the sole purpose of influencing voters.” Apparently, Willard must be overlooking that there is no good faith basis for denying the above well documented facts. Those undeniable facts, and when applied to the ethics laws cited above constitute violations of those laws. Why would Willard instead of acknowledging at least the occurrence of these undeniable facts, instead call them “unsubstantiated” and “partisan”?

The two accused of wrong doing in the complaint also apparently have made statements themselves that “categorically deny the insinuations and allegations contained in the Ethics Complaint” according to (their?) attorney Willard. Both Ferrara and McCauley are apparently unfamiliar with the ethics laws that govern their job duties, because they both thought it was sufficient to excuse their actions by simply stating that they did not believe there was any connection between Ferrara’s raise and McCauley’s commission from the sale of his house and that they did not personally believe either action had any actual effect on their independence of judgment in exercising their official duties. If either one had read the provisions in the applicable statute, especially subpart (e) set forth above, we can only hope they or the Township attorney would have recognized how their actions violated the clear language and intent of the ethics laws, by undertaking employment or service which might reasonably be expected to prejudice his independence of judgment in the exercise of his official duties. McCauley and Ferrara may have never considered the important distinction between what “might reasonably be expected to prejudice their independent judgment” and their self-serving after the fact denials that their independence of judgment was not affected, because neither is trained in the law. However, we all know that ignorance of the law is not an accepted excuse for violating it.

But what is attorney Willard’s excuse for his misunderstanding of the applicable law? For instance, Willard surely knows or should know that when the law refers to something that “might reasonably be expected to prejudice judgment,” it is not referring to whether it actually did so, because that is why the word, “might” is used to mean what may have potentially occurred, not something that is nearly impossible to know, that being what was in the mind of each of the accused when engaging in a business dealing with each other and with regard to how each exercised their judgment in conducting their official duties. And that “reasonably expected,” means not what the accused subjectively and personally expected regarding the effect of their employment or service on their judgment, but rather what a reasonable person in their same circumstances would have expected to affect his judgment when performing his official job duties. In other words, it is not a sensible legal defense to claim that because neither Ferrara or McCauley will admit to personally having their judgment influenced by the monetary benefits each received, that they did not violate the ethics law governing their job duties. If that was the standard, all accused persons could merely deny that their judgment was personally influenced by the compensation they received, as Ferrara and McCauley have naively done, and the law would be unenforceable. But that is not the standard, and Ferrara, McCauley and Willard should know better.

McCauley in her misguided understanding of her ethical responsibilities issued a further statement that, “politicians have careers and mine is making the American dream come true for my clients in all stages of their lives.” McCauley’s reference to the American dream being that of owning one’s own home, may indeed be true, but her adamant belief that she is permitted to combine her private business endeavors selling homes with her official duties as a Township Committee member, is mistaken, and responsible for her violation of the ethics laws especially when the sale of homes to fellow Municipal employees is, reasonably expected by the ordinary person in her situation to influence the independence of his or her judgment as a member of the Township Committee. Obviously, she and Ferrara need ethics training and to be stopped from this type of behavior while a member of the Township Committee and Township Administrator, two positions with far reaching and overlapping responsibilities.

As previously reported in the news, an ethics complaint was also filed on behalf of local residents against Committeeman Gregory Burchette due to his conflict of interest between his duty to have independence of judgment in the exercise of his duties as a member of the Township Committee in its process to make a decision whether to change the Emergency Medical Service (EMS) provider from the local Hillsborough EMS, and his unavoidable and potentially conflicting personal financial interest represented by the opportunity for his business to service the EMS vehicles if a new EMS provider was selected.

Once again, Willard took to the defense of the accused committeeman Burchette and defended the related actions of the entire Township Committee. He issued a statement that Committeeman Burchette had no involvement in the Fitch study despite his denial being in stark contradiction to the official Township Committee Meeting Minutes from April 8, 2014. Those minutes show that that Committeeman Burchette actually made the motion and voted in favor of the Resolution selecting the Fitch company to conduct the study of the Hillsborough EMS. Therefore, it is Willard’s denial that is unsubstantiated and untrue not the ethics complaint he accused of being so.

But Willard did not stop there. He voiced a further self-serving and immaterial defense, overlooking the law interpreting the ethics violations alleged. Willard claimed that because Burchette did not continue to service the EMS vehicles he had previously serviced after RWJ took over the hospital, this circumstance diminished Burchette’s conflict of interest violation of ethics law. However, that defense overlooks that Burchette did and still does do automotive service work but for RWJ’s non-EMS vehicles. In other words, he was and still is paid by the same hospital system that runs the EMS that the Township Committee decided to hire instead of the local EMS.

In addition, Mr. Willard must know or should know that there are legal definitions concerning when a prohibited conflict of interest exists and this law is not dependent upon whether he or the accused Township Committeeman agree with this law, which is set forth in the Ethics Complaint. The case law which governs the allegation against Burchette is cited in the Ethics Complaint, but never mentioned by Willard when raising his otherwise unsupported denials. The legal question that courts have proposed in Burchette’s circumstances does not depend upon whether Burchette continued to service the Somerset Medical Center EMS vehicles, but rather whether there was a personal interest applicable to Burchette that could create a potential for conflict with Burchette’s official duties as a Committeeman. The legal standard is NOT whether a public official like Burchette actually gained some personal benefit from his actions on the Township Committee during the process to determine the fate of the Hillsborough EMS, although Burchette did that also with his work on non-EMS RWJ vehicles, but merely whether his actions had the potential to further his personal interests and therefore influence the independence of his judgment. His company repaired EMS vehicles and therefore there was the potential benefit for him and his business from the selection of a new EMS provider with EMS vehicles Burchette’s business may have been able to repair. See, Barrett v. Union Tp. Committee, 230 N.J. Super, 195, 201 (App. Div. 1989).

Mr. Burchette’s participation in the Township Committee selection process leading right up to the time he finally recused himself only from the final vote to hire RWJ EMS, disqualified his prior votes, whether his vote was needed to pass the proposed motion or not, and influenced and poisoned the decision of the other members of the Township Committee. See, Pyatt v. Mayor and Council of Dunellen, 9 N.J. 548, 557 (1952) where the New Jersey Supreme Court ruled, “the infection of the concurrence of the interested person spreads, so that the action of the whole body is voidable.” That is the law, whether Burchette or attorney Willard agree.

Attorney Willard attempts to avoid discussing this law by stating that a Superior Court decision by a lower court by comparison to the Supreme Court, concerning a temporary restraining order sought by Hillsborough EMS was denied. However, that decision pertained only to an application to temporarily stop the change of EMS providers and permit Hillsborough EMS to present its case in full at a trial. The underlying case, however, was not dismissed. It challenges the unlawful action by Burchette and how it affected the Township Committee decision. That underlying case also challenges the validity of the Township Committee decision to change EMS providers, because the Committee was improperly influenced and therefore failed to take action to get a different unbiased report, rather than follow the flawed and biased Fitch report, and the Committee failed to engage in a meaningful honest and effective process to obtain competitive bids from more than one EMS provider to compare. Instead the specifications in order for bidders to qualify were rigged to be so stringent that only RWJ EMS believed it could qualify and was actually the only bidder. The Township Committee created a process pretending it was a competitive bidding process, when actually it never was. This disservice to the residents of Hillsborough still needs to be corrected and these Township Committee members need to be held accountable for it.

All of these issues need to be publicly and fairly aired to the township residents, and fairly evaluated by the Ethics Standard Board, and not shut down or influenced by the efforts of the accused members of the Township Committee, Administrator Ferrara or attorney Willard. For instance, the members of the Hillsborough Ethics Standards Board are appointed by the Township Committee, which makes it all the more important that none of the Committee Members or attorney Willard on their behalf attempt to influence the case before it is officially heard by the Ethics Board.

Roger Koch, Hillsborough, on behalf of the Ethics Complaint signatories and as submitted to Patch editor in response to October 24th Patch article : Ethics Complaints Filed Against Hillsborough Officials - Hillsborough Attorney says the complaints are "an unsubstantiated partisan attack" launched to influence voters before the election.