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City council candidates Randy Thompson and Duanne Small are staying on the charter study commission — for now, at least — despite City Attorney Fred Raffetto’s legal opinion stating that their council runs create an actual or perceived conflict of interest.

“There is no law that states that I cannot sit here as a commissioner and run for city council,” Small said at the March 25 charter study commission [CSC] meeting.

Small consulted with an attorney who told him no conflict of interest was present. Small declined to give the name of his attorney today. Raffetto’s written opinion is non-binding and only advisory. It cites case law rather than a specific statute.

“I am not resigning from this commission,” Small said. “I was put here by the people.”

If he is elected to the city council, though, he will resign, Small said. Also, Small believes that if his presence on the CSC taints its findings, then resigning now will not remove that taint, he said.

Thompson was not present when the CSC discussed the potential conflict. He arrived to the meeting about 10 minutes before it ended at 9 p.m. All CSC meetings are scheduled on Monday nights from 7 to 9 p.m.

After the meeting, Thompson said he would not resign at this time.

“The city really wanted this [the CSC] so I don’t want to just rush the judgment just because the city’s attorney made a statement or opinion,” he said. “I’m going to look into it and try to understand the issue and come to an understanding.”

Thompson has contacted the state’s board of finance, he said, to look for another opinion.

LAMBERTON’S LETTER

Following the issuance of Raffetto’s opinion, CSC Chair Lamberton wrote her own letter to Small and Thompson. In the letter, she summarized Raffetto’s opinion and also pointed out that other commissioners had repeatedly urged Small and Thompson not to run for council if they intended to stay on the CSC.

Lamberton also said she feels that Thompson and Small are creating a conflict by running for council, and stated specific ways in which she believes their candidacy could impact the CSC. From her letter:

As you know, the Commission may recommend a different form of government for Asbury Park in our report due no later than Aug. 5, 2013. If we do, it will go to the voters sometime between Oct. 5 and Nov. 5, 2013. If it is passed, the city council that was organized July 1, 2013, will be unseated effective either July 1, 2014, or Jan. 1, 2015 (depending on the [new] form of government). As you see this substantially shortens the term of office being sought in this May 2013 election. I would guess that anyone elected in 2013 would not want a shortened term of office and would, therefore, look to not have the question of a new form of government even put to voters.

The CSC findings could be found void if someone filed a challenge to the CSC due to a potential conflict, Lamberton wrote.

She finished her letter by asking Small and Thompson to either resign from the CSC or withdraw their petitions to run for council.

Small said Lamberton violated the group’s bylaws by writing the letter and noting her affiliation with the CSC beneath her signature at the end. The bylaws state that if the chair wants to write official correspondence on behalf of the entire CSC, she must gain the group’s permission first.

Lamberton disagreed with Small.

“It was a letter from me to you,” she said. “[CSC Chair] is the position I am speaking to you from. That’s who I am.”

The letter did not violate any public notice laws, Lamberton said, because it was a one-way correspondence without invitation to discussion.

When the CSC first convened in December, members discussed enacting a bylaw that prohibited members from speaking about the commission in public, meaning all correspondence would have to be released by Lamberton. The CSC did not adopt that bylaw, so members are free to publicly speak about the CSC’s activities.

ATTENDANCE DISPUTE

Some CSC members took issue with Thompson’s attendance record, stating that Monday’s meeting was the fourth in a row that he hadn’t attended.

Maguire said Thompson was at a fundraiser for his own political campaign on Monday night instead of attending the meeting.

Thompson arrived at the meeting just before it ended and addressed the potential conflict and his attendance record. He would not say what caused him to be almost two hours late for the meeting.

“It’s not fair to all of us that you’re not here,” Marano said upon Thompson’s arrival.

“We were all elected to try to do a job,” Maguire said. “We were all elected to meet here every Monday. We were not elected to come when you feel like it.”

“I don’t show up here only when I feel like it,” Thompson said. “I come here whenever I can … I will stay educated on the issues and our jobs. That is how I’m doing my job … I wasn’t here a handful of times. That’s not impeding my duties at all.”

Also, there is no attendance requirement in the CSC bylaws, Thompson pointed out. The group considered adopting an attendance requirement in December, but decided against it.

“Unfortunately, this commission has wasted a lot of time focusing on things that are not a statutory mandate,” he said after the meeting. “I hope that going forward we’ll stick to [studying the form of government].”

CHARTER STUDY BUSINESS ONLY

Just before the meeting ended, Small made a motion that the CSC no longer entertain “anything outside of studying our government and the other forms of government available to it,” he said. “The reason is that it’s taking away from our duties.”

Marano seconded the motion. Thompson, Small and Marano voted yes while Lamberton and Maguire voted no. The motion passed.

At the meeting, members present also discussed a forum to be held in April; the forms of government available to the city; and possible interview subjects.

Thompson and Small were elected to the CSC in November, along with Chair Pam Lamberton, Rita Marano and Michelle Maguire. Council elections are being held on May 14, and Small and Thompson were approved for candidacy this month.

The commission is tasked with studying the city’s form of government and possibly recommending changes. Those changes could range from a switch in election dates to a total overhaul of the city manager-council system the city currently employs. Depending on the nature of the changes, a council vote or a referendum will be required to enact the recommendations.

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[Charter Study Commissioners pictured above, from left: Randy Thompson, Michelle Maguire, Duanne Small, Rita Marano and Pam Lamberton.]

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