Town Lawyer: Councilwoman Can’t Negotiate with Princeton University

Heather Howard Princeton

The lawyer for the town of Princeton has issued an opinion that Councilwoman Heather Howard can’t participate in negotiations with Princeton University regarding payments in lieu of taxes because she is employed by the school.

The written opinion, written by town lawyer Ed Schmierer, outlines the town’s conflict of interest policy for two pages. Then Schmierer gives a brief explanation of one paragraph as to why Howard must recuse herself. Howard teaches in the Woodrow Wilson School of Public and International Affairs.

“As an employee of Princeton University, and guided by the decision in the matter of Wyzykowski v. Rizas, 132 N.J. 509 (1990), I have concluded that Councilwoman Heather Howard should not participate on behalf of Princeton in discussions related to the Princeton University Annual Voluntary Contribution,” Schmierer writes. “By recusing herself from the participation, any appearance of an `indirect personal interest’ will be avoided.”

The council held a special closed session tonight to discuss the negotiations with the university.

Schmierer first said at a council meeting last week that Howard must recuse herself from negotiations with the university, but he did not provide a written opinion. The town’s conflict of interest policy states that the conflict of interest lawyer will issue a timely written opinion. Schmier said he could not provide it that night because Howard had been away on vacation.

The brief opinion that Howard must recuse herself stands in stark contrast to the lengthy opinion he issued last month saying Mayor Liz Lempert can take part in negotiations with Princeton University even though her husband is a professor at the school. Lempert’s husband , who is a tenured faculty member at Princeton University, was promoted to a full professorship this June, about six months into her four-year term as mayor.

“Not only is the probability of any conflict remote or insignificant, but as a practical matter any conflict is non-existent,” he wrote in that opinion.

Schmierer, who earns several hundred thousands of dollars a year as the town attorney, was selected to be the conflict of interest attorney for the town earlier this year after the town adopted a lengthy and controversial policy on conflicts of interest that some good government advocates say does not bring much clarity to the issue.

Regarding the mayor negotiating the University’s annual payment in lieu of taxes to the town, Schmierer has argued that case law establishes “that not all interests are disqualifying interests and that even alleged appearances of conflict must have some reasonable basis and be more than a remote, significant or speculative possibility.”

“As the chief executive officer of the newly created Princeton and with a four-year term within which to serve, it is important to the discussions which will take place concerning the Princeton University annual voluntary contribution that there be some continuity with the leadership of Princeton,” Schmierer wrote. “Serving in her executive capacity for her term, that continuity will be provided. The fact that her husband is a tenured professor, who does not stand to benefit in any manner from the voluntary agreement to be negotiated with Princeton University cannot reasonably be deemed to have any influence on the mayor’s judgment. Further, there are no actions that the mayor could take that would provide for a benefit, salary or otherwise, to her husband and/or his department.  Without such a reasonable possibility of resulting in the mayor departing from her sworn duty, any interest that may exist or appear to exist is to remote and insignificant to disqualify the mayor from carrying out her executive duties.”

Schmierer has also argued that because people in the past with potential conflicts negotiated with Princeton University, that makes it okay for Lempert to do so, an argument Lempert herself has also made.

“The late Barbara Boggs Sigmund served successfully for a number of years as the mayor of the Borough of Princeton while her husband Paul was a tenured professor at the University. Mayor Marvin Reed also served for a number of years as the Mayor of the Borough of Princeton while his wife Ingrid was a non-tenured member of the Princeton Woodrow Wilson School faculty,” Schmierer wrote. “Both Mayors Sigmund and Reed, in their capacity as the chief executive officer for the then Borough of Princeton, were called upon to interact with the Trustees of Princeton University on a variety of issues. They were able to successfully navigate their responsibilities as elected Princeton officials without any hint of conflict while dealing with the University.  We should all be confident that Mayor Lempert will follow in that tradition and appropriately represent Princeton in discussions with the University over their annual voluntary contributions to the community.”

The state’s Local Government Ethics Law provides that “no local government officer or employee shall act in his official capacity in any matter where he, a member of his immediate family, or a business organization in which he has an interest, has a direct or indirect financial or personal involvement that might reasonably be expected to prejudice his independence of judgment in the exercise of his official duties.”

Citizens who think an official is violating the local government ethics law can file an ethics complaint with the state’s Local Finance Board at the Department of Community Affairs.


    1. Lempert is the spouse of a tenured employee. Howard herself is the employee and she does not (as far as I can tell) have tenure.

      Is this enough of a difference? Maybe.

        1. No, but with words like “reasonably” in there, the law isn’t exactly black and white:

          “No local government officer or employee shall act in his official capacity in any matter where he, a member of his immediate family, or a business organization in which he has an interest, has a direct or indirect financial or personal involvement that might reasonably be expected to impair his objectivity or independence of judgment;”

          Tenure is a significant difference in their circumstances – how so is a matter of perspective – and perhaps case law has established that.

          1. I don’t believe the word “reasonably” has the meaning you infer.

            It applies to the effect of the action, not the relationship to the action.

            It is reasonable to see that the application of the law applies equally to both parties. If one should be recused, so should the other.

            1. What effect of which action?

              The relationship between a non-tenured university employee and the university is fundamentally different than that of a tenured employee.

              While the tenured professor may have more affection for his employer, the non-tenured lecturer has much, much more to fear. A reasonable person might think that the tenured professor has nothing to gain and nothing to fear while the non-tenured lecturer…..may not even *want* to be involved for their own sake, never mind the public’s.

              1. Okay, you’re more clear there.

                This is going to come as a shock to Princetonians, but this law is not about the negative repercussions an individual may suffer. Not all employers are as narcissistic as PU.

                The law is designed to avoid the impropriety of making decisions that are to one’s benefit. While PU may threaten it’s employees on a regular basis, the law is designed to prevent their bribes from having a direct effect.

                Howard is susceptible to threats, which would be obvious were they to be carried out. Lempert is susceptible to bribes, which would go unnoticed. Which is a greater threat to the public interest?

                They should both be recused, but the case against Lempert is stronger.

                That Schmierer would suggest otherwise raises the question of his impartiality, weighed with some of his other suggestions it’s quite obvious his self interest is the focal point.

                1. How is Lempert more susceptible to bribes than any other official? She’s either unethical or she’s not. I don’t know her, so I’m not in a position to judge. If the university offered her a “bribe” in the form of what? An abnormal raise for her husband? That would unethical on their part and if the U is truly unethical, why wouldn’t they offer inducements to any other official?

                  I’m happy to be naively trusting. But if you pick apart Schmierer’s analysis and whatever case law he cites, I’ll read it. But I’m not going to do it myself. 🙂

                  1. She is more susceptible because there are more indirect ways of offering and fulfilling them. Not all bribes are monetary, wasn’t that your point about the negative influence that could be placed on Howard?

                    You may choose to be naive if you wish, PU is counting on it.

  1. Lempert is the spouse of a tenured employee. Howard herself is the employee – and she does not (as far as I can tell) have tenure.

    Is this enough of a difference? Maybe.

  2. Liz has the ability to disregard her attorney’s advice. I would have thought she had the good sense to do so in this instance. Her evident willingness to stretch the statute seems to me to be unwise on many counts, among them the questions she invites about her husband’s promotion to full professor and the University’s decision to grant him tenure.

    Skeptics will take no comfort from the following quote attributed to Liz in a September 4 column by David Voreacos and Susan Decker:

    “One of the fundamental underlying tensions is that [Princeton University is] an internationally recognized research institution, and [it] has a need to grow and expand to stay competitive and continue to attract the greatest minds”.

    That sounds to me like an argument in favor of treating our town as a land bank. The kindest thing I can say is that Liz shares the view of recent administrations that excellence is conditioned upon continued growth and expansion.

    Our Mayor is charged with representing the interests of our town. Those interests frequently conflict with the interests of our largest land owner. Marvin Reed was singularly blind to that conflict, with consequences that some of us consider to have been devastating for our core downtown neighborhoods. Do we really want his blindness to be the new standard?

  3. Princeton Council adopted a clear Conflict of Interest policy. Conflicts of Interest were to be decided by an appointed lawyer. That process has been followed and given a clear result. For Liz to recuse herself now would mean making a mockery of the newly-adopted policy, and deserting her democratic mandate to represent the town.

    I have every confidence in Liz to represent us. As a Princeton resident and taxpayer, she, like all other Princeton taxpayers, would gain from a settlement that favors the town. This massively outweighs any notional favorable treatment that might accrue to her family through a settlement favoring the university.

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