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Asbury Park city council candidates Duanne Small and Randy Thompson should choose between their council races and their seats on the city’s charter study commission, according to a written opinion by city attorney Frederick Raffetto.

Raffetto’s opinion is advisory, and he has no power to force the acceptance of his findings, he wrote.

Small requested the opinion, which is addressed to him. However, it also applies to Randy Thompson, who serves with Small on the charter study commission, Raffetto confirmed.

Based on the Local Government Ethics Law, Raffetto wrote that a council candidate also serving on a charter study commission presents an actual or potential conflict of interest. That disqualifies the individual from doing both, he stated.

Such a conflict could not only subject the individual to fines, but could invalidate the decisions of the charter study commission, Raffetto wrote.

Small said he will seek further legal clarification.

“I don’t want to tarnish any office I hold or any office that I might hold in the future,” Small said. “I want to do what’s best for the city.”

Reached this morning, Thompson said he just received Raffetto’s opinion last night and hasn’t had the opportunity to fully review it.

Both Small and Thompson were elected to the charter study commission in November, when voters approved its establishment. The five-member body is charged with reviewing how the city organizes its government and conducts municipal elections. The commission may recommend changes, which are then submitted for voter approval. If those changes are approved, new elections are held to elect candidates to serve in the new form of government.

Under state law, the charter study commission has until August to complete its work, according to Raffetto’s opinion. The city council election is May 14.

Small is running for council as a member of “The A-Team” ticket, and Thompson is running as an independent. Twenty three candidates filed to run for the five council seats, all up for grabs for a four year term. One candidate, Justice Allah, was disqualified yesterday for not having enough valid signatures on his nominating petition.

Raffetto’s opinion stated that both actual or “perceived” conflicts of interest violate the Local Government Ethics Law.

“I do not believe that it is appropriate for a sitting charter study commission member to simultaneously run as a candidate for elected office within the very form of government that the member is charged with studying and making recommendations as to its continuance or reform,” Raffetto stated.

A charter commission member elected to council could steer the commission findings toward maintaining the existing form of government, and thus not cut short their own council term, Raffetto wrote.  On the other hand, the charter commission member, if not elected to council, could recommend a new form of government, knowing that its approval by voters could allow that person to run for office again, the opinion stated.

The conflict could also cause the final recommendations of the charter study commission to be struck down by a legal challenge, according to Raffetto.

“Most importantly, given these circumstances, the member’s continued participation on the charter commission could taint the findings and recommendations of the commission, and ultimately require that the final determination of the commission as a whole be invalidated,” he wrote.

Should either candidate step down from the charter study commission, Raffetto’s opinion stated that the remaining commission members would appoint a replacement.

Raffetto warned that any member of the public can file a complaint with the state Local Finance Board, which enforces the Local Government Ethics Law. If the board finds a violation of the ethics law, it may impose a fine of between $100 and $500, Raffetto wrote.

The candidates can also request an advisory opinion from the Local Finance Board, Raffetto stated.

However, the board may not issue an advisory opinion if a pending complaint is filed. According to information posted about ethics laws and complaints on the Department of Community Affairs website, “The Board will not process an advisory opinion request on a matter pending in…an administrative agency of the State.”

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