BERKELEY HEIGHTS, NJ – What constitutes a conflict of interest for a council member or the council's attorney?

That question was raised at the Jan. 15 Township Council meeting, when Councilman Peter Bavoso suggested Councilman Stephen Yellin had a conflict of interest on two issues that he voted for at the Jan. 1 Reorganization Meeting -- the shared services agreement with Union County and the appointment of the Township Attorney.

Bavoso, who was not present at the Jan. 1 meeting, said he believes the township needs a full-time head of the Department of Public Works (DPW), rather than the eight-hour a week part-time position allocated to Joe Graziano as part of the Shared Services Agreement with Union County. Graziano, who is employed by Union County as the Director of Engineering, Public Works & Facilities Management Department, was once the Director of the Berkeley Heights DPW.

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Bavoso said he thinks this should be “a full-time, dedicated position” and the person in it should be “100 percent focused” all day, every day, on Berkeley Heights and its residents, “not eight hours a week at the discretion of the DPW manager.” He also said he was concerned the previous, full-time director, had been fired by letter in December. Bavoso said the DPW head “had only started in September, was passionate about leading the DPW team,” and had a “hands-on attitude and approach.”  

Neither the mayor nor the new township administrator had a meeting with the man or even a conversation with him, before they fired him , said Bavoso. “It seemed like they had already decided to put the shared services agreement into place with the county and Mr. Graziano.

“It’s hard to understand how three “Yes” votes could truly believe this arrangement, even only temporary, was in the best interest of Berkeley Heights,” he said.  The arrangement is expected to last 18 to 24 months, he said.

The conflict arises, according to Bavoso, because “Yellin works directly for Union County in Recycling Dept as keyboarding clerk,” and was hired by Graziano. Having to report directly to Graziano “makes it even more of a conflict of interest,” Bavoso said, and this conflict also makes Yellin’s vote for the new Township Attorney Kraig Dowd a concern, because Dowd has “multiple Union County entities as clients.”

Bavoso asked the council to re-do the January 1 votes on Resolution 1, the shared services agreement and Resolution 30, appointing the township attorney, “with Councilman Yellin recusing himself.”

Councilwoman Jeanne Kingsley said she had also done some research into the shared services agreement and wanted to know “Who represented us on the legal side?”

When told it was Dowd, Kingsley asked, “How can he do that? How can he review a document on our behalf before the first of the year,” before he is officially appointed to the position?

Dowd said, “I agreed to take a look at the document drafted by the county. I didn’t see any issues from a legal standpoint (with the agreement). I don’t think any legal issues were raised about this” during the meeting and the council voted.

Kingsley continued to pursue the issue, “I’m concerned the agreement is highly favorable to the county and concerned” there was no one representing the township. “You list the County of Union as a client … How is that not a conflict of interest,” she asked Dowd.

Dowd conceded his firm represents some county workers, but “not the county itself,” at this time, although “We have represented the county in the past.”

Bavoso pushed a bit more about his business with the county and asked again, if Dowd didn’t see “Yellin reporting up to Graziano as a county director” as a potential conflict of interest?

Dowd responded, “I don’t know his position.”

Yellin said before the New Year’s Day meeting he was working in the Finance Department, “and advised legal counsel and determined it was proper to cast a vote.”

After some more back and forth, Kingsley said, “I think we should get a legal opinion” on whether it is a conflict, especially given the seven years of “multiple lawsuits brought up against the township” alleging conflict of interest in certain votes. The lawsuits were not for a conflict “as direct as employment, it was for membership in a church,” she said. Those lawsuits were related the transaction with Little Flower Church involving the library and the property on Hamilton Avenue. “We take it very seriously … and err on side of caution, recusing ourselves from votes just to make sure it doesn’t apply. I think employment is a lot more direct than church membership. I would like to get a legal opinion.” 

Councilwoman Susan Poage interjected, “I work for the Board of Education. Should I recuse myself on voting on shared services” with the board?

Bavoso said “Yes ... (The idea) is “you can’t be put in the position of being used, so err on the side of caution.”

Poage said, “Our legal counsel never said anything.”

Mayor Angie Devanney said the question should be “referred to our legal counsel to check it out.”

Berkeley Heights Republican Municipal Chair Heidi Cohen pursued the issue later in the meeting during the public comment portion of the meeting and asked what counsel he spoke to before the Jan. 1 meeting.

Yellin said he spoke directly to Dowd, whom he knew and respected, about whether his employment with Union Conflict presented a conflict of interest and was told no.

She then asked him if he would be willing to go directly to the state ethics board to ask if there was a conflict of interest. So everyone concerned would be assured someone not tied to Berkeley Heights or Union County had issued an opinion on whether there was a conflict of interest.

Yellin said, “I don’t want to go out on my own initiative,” without the advice of the township council.

Cohen said, “The risk is that someone can sue us. The risk is not you do or don’t have the conflict.”  She asked If he would recuse himself, as have many people who have been concerned about “even a chance of an impropriety … to put the town in a safer position, going forward.”

Yellin said he would have to "defer to the judgement of our legal counsel as to whether that would be necessary.”

Cohen asked, “Would you be willing to ask legal counsel not employed by Union County?”

Yellin replied, “As a member of Town Council, my obligation is to speak to our legal counsel, on any matters that might be a legal issue for our township,” he replied. 

There was no re-vote on the Shared Services Agreement with Union County or upon the appointment of Township Attorney Kraig Dowd.

Had they done so, it is likely the resolutions would not have been approved. There are three Democrats and three Republicans on the council. Bavoso was not present on Jan. 1, and the vote was 3-2 in favor of each of those resolutions. With Bavoso voting and Yellin recusing himself, the vote would likely have been 3-2 against each of the resolutions.