New Jersey Dismisses Conflicts Allegations

A proposed admonition for an alleged conflict of interest found by a majority of the Disciplinary Review Board was rejected by the New Jersey Supreme Court, which ordered the matter dismissed.

From the DRB report and recommendation

Between 2015 and 2020, respondent served as general legal counsel for the Lacey Township, New Jersey, Board of Education (the BOE) school district (the District). During that same timeframe, respondent’s wife was employed as a teacher in the District and was a member of the Lacey Township Education Association (the LTA) – the local teacher’s union. Specifically, respondent’s wife worked as a special education teacher at Mill Pond Elementary School.

The grievant in this matter, Regina Discenza, served as an elected member of the BOE from 2015 until 2017 and, thereafter, from 2019 until 2021. Throughout her terms of service as a BOE member, Discenza voted to disapprove nearly all of respondent’s legal bills, based primarily on her view that it was improper for respondent to serve as general legal counsel to the BOE while his wife worked as a special education teacher within the District.

Additionally, between 2017 and 2020, the District employed independent labor counsel responsible for “negotiating and generating” contracts with the LTA and the Lacey Township Administrators and Supervisors Association (the LTASA) – a union consisting of school principals, administrators, and supervisors with managerial authority over the LTA members.

The just-defeated Board of Education President asked Respondent to investigate Discenza for possible ethics violations.

On November 14, 2019, respondent submitted to the BOE a research memorandum regarding Discenza’s “potential ethics violation.” Respondent did not provide Discenza with a contemporaneous copy of the memorandum.

As a result

In December 2019, Giordano and other BOE members filed with the School Ethics Commission (the SEC) a complaint against Discenza based on the conduct described in respondent’s memorandum. Respondent “took the acknowledgment of the [BOE] members who signed” the complaint, work which he characterized as a “ministerial service.”

At the bar hearing

Following the conclusion of its case, the DEC presenter moved to dismiss the formal ethics complaint based on the view that respondent could not have engaged in a conflict of interest in connection with his November 14, 2019 memorandum because he was not serving as the personal attorney for Giordano. The presenter also sought to dismiss the charges pertaining to respondent’s involvement in the District’s personnel matters based on the view that the presenter could not present sufficient evidence to sustain those charges.

Following respondent’s presentation and the close of the ethics hearing, the DEC presenter reversed position regarding dismissal, via written summation to the hearing panel. Specifically, the DEC presenter recommended the imposition of an admonition, arguing that respondent had violated his duty of loyalty to Discenza, as a BOE member, by preparing the November 14, 2019 memorandum, without her knowledge, which scrutinized her actions in connection with the 2019 election season. The DEC presenter acknowledged that Giordano, as the BOE president, was authorized to independently request legal services from respondent pursuant to District Policy 0174. However, the DEC presenter emphasized that District Policy 0174 did not abrogate respondent’s duty to adhere to the Rules of Professional Conduct, which, in the presenter’s view, prohibited respondent from acting against the interests of one BOE member, even if the majority of the BOE had authorized such action.

On appeal of the DEC dismissal, the DRB found misconduct

Respondent’s preparation of the memorandum was directly adverse to the interests of Discenza, who, along with the other BOE members, respondent represented in their official capacities. Similarly, respondent’s conduct created a significant risk that his representation of the BOE as a whole would be materially limited by his decision to assist the BOE members who sought to investigate Discenza, who remained unaware that respondent had been tasked with completing the memorandum until sometime after the BOE had filed a complaint against her with the SEC.

The DRB found the duty of loyalty extended to the full BOE

By assisting a group of BOE members in connection with their efforts to harm Discenza, respondent violated his duty of loyalty to the entire BOE and, arguably, injected himself into the political infighting taking place within the BOE. Respondent argued that he could not have engaged in a conflict of interest because he had acted at the behest of the majority of the BOE. However, his argument fails to appreciate that his duty of loyalty was not confined merely to the majority of the BOE members.

And 

Respondent engaged in a further conflict of interest by representing the BOE in connection with union matters while his wife was a member of the LTA, a situation which created a significant risk of materially limiting his ability to provide objective representation to the BOE regarding union matters.

The misconduct finding was not unanimous

Chair Gallipoli, Vice-Chair Boyer, and Member Joseph voted to dismiss the formal ethics complaint in its entirety, finding that respondent did not engage in any unethical conduct. In their view, respondent properly completed the November 2019 memorandum at the behest of Giordano, the BOE president, pursuant to District Policy 0174. Those Members also found no significant risk that respondent’s representation of the BOE, in connection with the District’s personnel matters, was materially limited by virtue of his wife’s union membership within the District.

The court agreed. (Mike Frisch)