PINELANDS PRESERVATION ALLIANCE VS. BURLINGTON COUNTY BOARD OF CHOSEN FREEHOLDERS (L-0051-19, BURLINGTON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4192-19
PINELANDS PRESERVATION
ALLIANCE,
Plaintiff-Appellant,
v.
BURLINGTON COUNTY BOARD
OF CHOSEN FREEHOLDERS,
KATE GIBBS and LATHAM
TIVER,
Defendants-Respondents.
______________________________
Argued October 5, 2021 – Decided October 28, 2021
Before Judges Fisher and Smith.
On appeal from the Superior Court of New Jersey, Law
Division, Burlington County, Docket No. L-0051-19.
Paul A. Leodori argued the cause for appellant (Paul
Leodori, PC, attorneys; Paul A. Leodori, on the briefs).
Regina M. Philipps argued the cause for respondents
(Madden & Madden, PA, attorneys; Regina M.
Philipps, on the brief).
PER CURIAM
Plaintiff Pinelands Preservation Alliance's appeal of an order denying
certain discovery, a protective order, and a summary judgment in defendants'
favor, is largely dependent on whether two members of the Burlington Board of
Chosen Freeholders 1 – defendants Kate Gibbs and Latham Tiver – were in a
conflict of interest when voting on the resolution in question because of their
relationships to IUOE Local 825. We agree with the trial judge that Gibbs and
Tiver had no direct or indirect interest in the resolution and affirm.
In a nutshell, the Alliance alleged in its complaint that Gibbs and Tiver
violated the Local Government Ethics Law 2 by voting on a resolution
authorizing the county engineer to approve an application to close two county
roads that would be affected by New Jersey Natural Gas's construction of the
Southern Reliability Link once construction took the pipeline through
Burlington County. The Alliance claims that Gibbs's and Tiver's decisive votes
1
Effective January 1, 2021, the term "board of chosen freeholders" was changed
to "board of county commissioners," and the terms "freeholder" and "chosen
freeholder" were changed to "county commissioner." L. 2020, c. 67. In the
remainder of this opinion, we will refer to the entity that approved the resolution
as "the board" and the board members as "county commissioners."
2
N.J.S.A. 40A:9-22.1 to -22.25.
A-4192-19
2
– the resolution passed 3-2 – were tainted by the fact that their employer, Local
825, had urged in other fora the approval of NJNG's pipeline.
In considering the significance of the two county commissioners' union
affiliation,3 it is important to recognize that the decision to allow NJNG to
proceed with the pipeline was not at issue in the adoption of the resolution
challenged in this action. The pipeline had received all necessary governmental
approvals 4; the sole question for the board related only to whether, if the
3
The Alliance alleged that Gibbs was employed by the Engineers Labor-
Employer Cooperative 825 Labor Management Trust Fund, which was described
in the complaint as "a collaborative trust that represents the interests of Local
825 Operating Engineers and focuses on promoting economic development and
job creation" in New Jersey. Tiver was employed by the International Union of
Operating Engineers Local 825 as an organizer to recruit new members. Local
825 represents operators of heavy machinery. See George Harms Constr. Co. v.
N.J. Tpk. Auth., 137 N.J. 8, 16 (1994).
4
In 2015, NJNG petitioned the Board of Public Utilities for approval to
construct a gas pipeline from Chesterfield, across portions of Burlington,
Monmouth, and Ocean Counties, to a terminus in Manchester. In January 2016,
the BPU approved the application, as did the Pinelands Commission in
September 2017. Numerous administrative determinations about the Southern
Reliability Link were affirmed in a series of unpublished opinions issued a few
months ago. See In re S. Reliability Link Pursuant to N.J.S.A. 40:55D-19 &
N.J.S.A. 48:9-25.4, No. A-3666/3752-15 (App. Div. Apr. 29, 2021); In re N.J.
Natural Gas Co. for Approval & Authorization to Construct & Operate the S.
Reliability Link Pursuant to N.J.A.C. 14:7-1.4, No. A-2876-15 (App. Div. Apr.
29, 2021); In re N.J. Pinelands Comm'n's Approval of N.J. Natural Gas's
Application No. 2014-0045, No. A-0925/1004-17 (App. Div. Apr. 29, 2021); In
re N.J. Pinelands Comm'n's Approval of N.J. Natural Gas's Application No.
A-4192-19
3
resolution was approved, the county engineer would be authorized to close two
county roads or, if rejected, the county roads would have to be closed lane by
lane. There is no question that the union or its members, assuming they
benefited from construction of the pipeline in Burlington County, would not
obtain a direct or indirect benefit from the resolution closing the two county
roads. The pipeline had been approved and was going to be constructed through
Burlington County regardless of the board's approval or disapproval of the
resolution.
Prior to the hearing on the resolution, Gibbs and Tiver sought and obtained
the advice of counsel that the Local Government Ethics Law would not prohibit
their participation because, among other things, the board was not deciding
whether the pipeline construction would proceed or whether any road occupancy
permit at all would be issued; the board was merely being asked to decide
whether or not county roads would be completely closed when the pipeline
construction traversed those roads. Ostensibly based on this advice, Gibbs and
Tiver participated in the hearing and provided the decisive votes in favor of the
resolution.
2014-0045, No. A-4997-16 (App. Div. Apr. 29, 2021); In re N.J. Pinelands
Comm'n's Approval of N.J. Natural Gas's Application No. 2014-0045, No. A-
0999/1005-17 (App. Div. Apr. 29, 2021).
A-4192-19
4
The Alliance's January 2019 complaint sought relief in lieu of prerogative
writs and alleged, among other things, violations of the Local Government
Ethics Law, the federal and state constitutions, and the New Jersey Civil Rights
Act, N.J.S.A. 10:6-1 to -2. Soon after, the Alliance served discovery requests,
including notices to depose defendants, the Burlington County Solicitor, and a
contractor hired by NJNG to construct the pipeline. Defendants objected to
much of this, claiming the discovery requests were frivolous, vexatious, and
harassing. No depositions were taken. Instead, in May 2019, a judge dismissed
the civil rights claim but denied dismissal of the claims alleging violations of
the Local Government Ethics Law; the judge also enjoined defendants from any
activity in furtherance of the resolution. A discovery motion followed, as well
as a motion by defendants for a protective order concerning the legal advice
received by Gibbs and Tiver prior to their participation at the December 12,
2018 hearing. Ultimately, in March 2020, the judge presiding over the matter
after the original judge retired, granted the request for a protective order and
denied the Alliance's motion to compel discovery without prejudice because of
defendants' anticipated summary judgment motion, which soon followed.
In moving for summary judgment, defendants claimed the Alliance could
not show Gibbs and Tiver were in a conflict of interest when voting on the
A-4192-19
5
resolution. The Alliance opposed the motion, arguing: the information provided
to support the legal advice rendered to Gibbs and Tiver was inadmissible or
misleading because of the absence of other discovery about the context in which
that advice was given; the certifications of Gibbs and Tiver included
inadmissible hearsay and hearsay within hearsay; the attorney who provided
advice about Gibbs's and Tiver's participation in voting on the resolution had
not been shown to have expertise in the Local Government Ethics Law;
discovery in general was still outstanding and summary judgment was therefore
premature; and summary judgment in defendants' favor would necessarily
require an inappropriate determination on the credibility of Gibbs's and Tiver's
assertions.
Closer to the heart of the matter, the Alliance argued that the existing
record demonstrated a conflict of interest because Gibbs and Tiver voted in favor
of a resolution that facilitated the pipeline's construction favored by the union
that employed them. The Alliance's trial court brief in opposition to defendants'
summary judgment revealed this attenuated view of a conflict of interest,
claiming Gibbs and Tiver:
knew at the time of the vote that [the Southern
Reliability Link] was subject to a pending appeal in the
Appellate Division, an appeal that could result in the
project being halted or changed, but that NJNG had
A-4192-19
6
decided to go ahead and build as much as it could while
the appeals were pending. Since the Resolution was
admittedly designed to expedite construction, it also
could have the effect of helping NJNG beat the clock
on the appeal and complete construction before the
Appellate Division ruled. [In taking actions while on
the board], Gibbs and Tiver helped ensure the pipeline
could get its permit in time to build in Burlington
County before any appeals were decided. This result
would plainly benefit those employed to build [the
Southern Reliability Link].
The judge presiding over the discovery disputes recused herself and the
summary judgment motion was heard by Judge Kathi F. Fiamingo, who rejected
the Alliance's arguments about the admissibility or the alleged lack of context
and surrounding circumstances concerning the legal advice in favor of Gibbs
and Tiver's participation in the resolution's approval. The judge declined to
decide whether the advice of counsel absolved Gibbs or Tiver from a penalty for
any alleged violation of the Local Government Ethics Law, even if the advice
was mistaken. Instead, Judge Fiamingo determined that no conflict existed,
holding that the record established that Gibbs and Tiver had no
direct or indirect pecuniary interest with respect to the
road occupancy permit's approval. Neither . . .
defendants nor anyone associated with . . . defendants
have any interest in any entity that would benefit from
the issuance of a road occupancy permit. Similarly, the
defendants have no direct personal interest in the
Resolution as that interest is described in Wyzykowski
[v. Rizas, 132 N.J. 509, 525-26 (1993)].
A-4192-19
7
The judge observed, as well, that there was
a significant disconnect between [the Alliance]'s
argument that Local 825 supported the construction of
the [pipeline] and its conclusion that Tiver['s] and
Gibbs['s] vote[s] on the Resolution furthered that
interest such that there was a conflict of interest on their
part. The only matter before the [Board] on December
12, 2018[,] was the issuance of a road occupancy permit
that would permit NJNG to engage in road closures
during the construction affecting various roads in
Burlington County. Neither an affirmative vote nor a
denial would have affected the actual construction of
the SRL. That decision was not within the purview of
the [board].
The Alliance appeals orders entered on March 17, and June 16, 2020. The
former denied the Alliance's motion to compel discovery and granted
defendants' cross-motion for a protective order, and the latter granted
defendants' summary judgment motion. We find insufficient merit in the
Alliance's arguments to warrant further discussion in a written opinion, R. 2:11-
3(e)(1)(E), and we affirm the grant of defendants' summary judgment motion
substantially for the reasons set forth by Judge Fiamingo in her written decision.
We add only our agreement that Gibbs and Tiver were not in a conflict of
interest when participating in the discussion about and by voting on the road-
closure resolution because of their union affiliation. As has been firmly
established, the union would not benefit from the adoption of a resolution to
A-4192-19
8
close the county roads even when necessary to accommodate the construction of
a pipeline that had been approved elsewhere.
The Local Government Ethics Law declares that a local government
officer may not act in an official capacity when the officer, a member of the
officer's immediate family, or the officer's business "has a direct or indirect
financial or personal involvement that might reasonably be expected to impair"
the officer's "objectivity or independence of judgment." N.J.S.A. 40A:9-22.5(d).
In Wyzykowski, 132 N.J. at 525-26, and again in Grabowsky v. Twp. of
Montclair, 221 N.J. 536, 553 (2015), the Court identified four settings – two of
which suggest a "direct" interest and two of which suggest an "indirect" interest
– in which disqualification would be mandated by the Local Government Ethics
Law and urged the application of its principles "with caution" lest local
governments be "seriously handicapped if every possible interest, no matter how
remote and speculative, would serve as a disqualification of an official ,"
Wyzykowski, 132 N.J. at 523. More simply put, the Court counseled that a
conflict arises when the official "faces 'contradictory desires tugging . . . in
opposite directions.'" Piscitelli v. City of Garfield Zoning Bd. of Adjustment,
237 N.J. 333, 353 (2019) (quoting Wyzykowski, 132 N.J. at 524).
A-4192-19
9
We agree with the trial judge that there was no tug and therefore no
conflict here. The union may benefit from the pipeline's construction but the
resolution's adoption did not further the construction, either directly or
indirectly. The resolution dealt only with how the county would deal with traffic
once construction inevitably reached its roadways. Gibbs and Tiver were
entitled to consider and vote on that resolution without running afoul of the
Local Government Ethics Law.
Affirmed.
A-4192-19
10