March 19, 2015 Hon. Thomas M. Moore, J.S.C. Wilentz

Township of Montclair
205 Claremont Avenue
Montclair, NJ 07042
tel: 973-509-4934
fax: 973-509-1030
Ira Karasick
Township Attorney
ikarasick@montclairnjusa.org
March 19, 2015
Hon. Thomas M. Moore, J.S.C.
Wilentz Justice Complex
212 Washington Street, 8th Floor
Newark, New Jersey 07102
Re:
Montclair Kids First v. Sean Spiller
Docket No. C-59-15
OTSC to be heard March 20, 2015 at 11:00 a.m.
Dear Judge Moore:
I am the Township Attorney for the Township of Montclair. In this capacity I represent
the Township Council (the “Council”) and I advise the Township members of the Board of
School Estimate. We have been made aware of the lawsuit brought by Montclair Kids First
against Sean Spiller, a member of the Township Council and one of the Council’s two
representatives on the Board of School Estimate (“BOSE”). I have obtained and reviewed the
submissions filed by the plaintiff, and am constrained to bring certain matters to the Court’s
attention. I understand that the defendant is represented by counsel, so I want to stress that I am
writing on behalf of the Township and Township Council.
Sean Spiller was elected to the Council representing the Third Ward in May, 2012 and
assumed office on July 1, 2012. Montclair has adopted the Council-Manager form of
government under the Optional Municipal Charter Law (Faulkner Act), N.J.S.A. 40:69A- 81 et
seq. The Council consists of seven members, four of whom are elected by wards, one of whom
is the Mayor, and the remaining two are Council members at-large. The Township of Montclair
is a “Type 1” school district, which requires the Township Council and the Montclair Board of
Education (“MBOE”) to jointly establish a Board of School Estimate (“BOSE”). N.J.S.A.
18A:22-1, consisting of two members chosen by the MBOE, two members chosen by the
Council, and the Mayor. The BOSE has limited role in the budget process and absolutely nothing
to do, by law, with the collective negotiation process or resulting collective negotiation
agreements.
Montclair is an affirmative action/equal opportunity employer.
Hon. Thomas M. Moore, J.S.C.
March 19, 2015
Page 2 of 3
Councilor Spiller was appointed by the Council as its representative on the BOSE in 2013
for the 2013 budget year, and again for the 2014 budget year, and now for the 2015 budget. In
both 2013 and 2014, Councilor Spiller voted as a member of the BOSE to certify the school tax
levy to the Council. Mr. Spiller’s vote as member of the BOSE in 2013 and 2014 was never
challenged, nor has the legality of Mr. Spiller’s appointment to the BOSE by the Council ever
been questioned or challenged, as could have been done in either case by an action in lieu of
prerogative writs.
Councilor Spiller has publicly acknowledged his position with the New Jersey Education
Association and his former employment with the Wayne Teacher’s Association since the
beginning of his Council service.
The Township Council is concerned that the Court is being asked to nullify the Council’s
choice of its representative to the BOSE, a concern that is heightened because this demand is
being made on the eve of the BOSE’s initial 2015 meeting. It appears that it is Councilor
Spiller’s service on the BOSE being complained of, rather than any action he has taken as a
member of that Board. Mr. Spiller may be the defendant, but it is the Council’s appointment that
is being questioned.
As stated in its Chancery Complaint, plaintiff’s counsel did serve the Township Clerk on
March 4, 2015, with a letter styled as a “complaint raising conflicts of interest under both the
Montclair Code of Ethics (“Ethics Code”), as well as the New Jersey Local Government Ethics
Law . . . .” We responded that “the Township Council is without authority to consider or
adjudicate the complaints which you raise . . . .” I would like to inform the Court of the basis for
the Township’s position, as it may possibly bear on the present litigation.
The Montclair Code of Ethics, Montclair Code, Chapter 3, Article VIII, Sections 3-59 to
3-66, which adopted in 1984, under which the Council did have a role in resolving ethics
complaints, was preempted by the adoption of the Local Government Ethics Law, N.J.S.A.
40A:9-22.1 et seq. (“LGEL”), and is without force or effect. See N.J.S.A.40A:9-22.4 and
Opinion of the Attorney General 91-0136 (May 19, 1992). Since the enactment of the LGEL,
The Township has not adopted a local ethics code pursuant to the LGEL’s statutory procedures.
Consequently, any ethics complaint brought under the Montclair Code of Ethics is invalid.
The ethical conduct of Township of Montclair officials is regulated by the LGEL, which
excludes the Council from hearing ethics complaints. Any complaint brought under the LGEL
must be filed with the State of New Jersey’s Local Finance Board, which has exclusive
jurisdiction, with any appeal going to the Appellate Division. N.J.S.A. 40A:9-22.4.
It is worth noting that the Legislature, in adopting the LGEL, did not intend that elected
bodies, such as the Township Council, decide ethics complaints. Moreover, the Legislature, in
seeking uniformity of interpretation and enforcement, N.J.S.A. 40A:9-22.2, enacted the LGEL in
derogation of the common law and made the LGEL the exclusive statutory guide and remedy for
any misconduct that falls within the LGEL’s scope, thus leaving no leeway for Council
involvement in this process.
Hon. Thomas M. Moore, J.S.C.
March 19, 2015
Page 3 of 3
It is the Council’s position that Councilor Spiller meets the statutory criteria for
appointment to the BOSE. The Complaint in this matter, which we believe fundamentally
misconceives the rules and statutes governing suits against local governments and the institution
of ethics complaints, asks the Court to undermine the Council’s authority to choose its BOSE
representatives by imposing additional standards for service on the BOSE. In a properly brought
lawsuit seeking similar relief, the Township Council and the Board of School Estimate would
plainly be indispensable parties.
Very truly yours,
IRA KARASICK
Township Attorney
Attorney ID: 036111987
cc:
Shavar Jeffries, Esq.
Robert Fagella, Esq.
Councilor Sean Spiller