In State v. Thompson, A-2279-07T4, the Appellate Division held that a violation of the Conflicts of Interest Law and a code of conduct adopted pursuant thereto is not a sufficient basis for criminal prosecution for official misconduct.

In the case, the State appealed from an order dismissing 36 counts of a 42 count indictment. Thirty two counts charged six Treasury employees and two employees of OSI Collection Services, Inc., a vendor selected by the State, after competitive bidding, to collect tax deficiencies and delinquencies, with official misconduct. Four counts charged two of the State employees and the OSI employees with engaging in a pattern of official misconduct.

Twenty eight of the counts can be grouped into fourteen pairs. One count in each pair charged the State employee(s) and an OSI employee, as an accomplice, with the receipt of a benefit, including meals, entertainment, spa treatments and golf outings. The other count charged failure to report the receipt of the benefit to the appropriate ethics authority. In large part, the State relied on the Department’s Code of Ethics as the source of the duty allegedly breached.

Four counts also charged official misconduct when State employees failed to recuse themselves from the process involving an allegation of improper billing by OSI, the extension of OSI’s contract, selecting the committee that evaluated the bids, determined the winning bidder, and setting conditions on the bid that presumably gave OSI a competitive advantage in violation of N.J.S.A. 2C:30-2a.

The Appellate Division, in affirming the dismissal of the receiving and failure to report counts, held that reliance on a violation of the Conflicts of Interest Law alone does not set forth a basis to impose criminal sanctions under the official misconduct statute as the imposition of criminal sanctions does not follow from a simple conflict of interest. There must be some additional allegation of wrongdoing. 

Considering the case law regarding official misconduct, the Court concluded that the imposition of criminal sanctions does not follow from a simple conflict of interest. Culpability is not based on the receipt of a gift in the absence of some additional allegation of wrongdoing. The Conflicts of Interest Law does not set forth a basis for criminal liability under the official misconduct statute. Although it sets forth the ethical obligations of State employment, its terms are not self-executing and do not proscribe any conduct. 

The Court also noted that the Conflicts of Interest Law and Code of Ethics apply to all employees in the Department, providing general and generic rules. However, official misconduct requires an alleged failure to perform a duty specifically required of the defendant’s office. Moreover, the Conflicts of Interest Law does not provide sufficient notice that the unreasonable appearance of impropriety may lead to a defendant’s conviction of a crime.


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Photo of Frank M. Crivelli Frank M. Crivelli

Frank M. Crivelli’s practice revolves around the representation of over eighty-five (85) labor unions in various capacities, the majority of which bargain for law enforcement entities. He is proud to be called on a daily basis to provide counsel to over 12,000 state…

Frank M. Crivelli’s practice revolves around the representation of over eighty-five (85) labor unions in various capacities, the majority of which bargain for law enforcement entities. He is proud to be called on a daily basis to provide counsel to over 12,000 state, county and local law enforcement officers, firefighters and EMS workers.

Mr. Crivelli specializes his individual practice in collective negotiations.  Over the past twenty (20) years, Mr. Crivelli has negotiated well over one hundred (100) collective bargaining agreements for various state, county, municipal and private organizations and has resolved over thirty-five (35) labor agreements that have reached impasse through compulsory interest arbitration.  Mr. Crivelli routinely litigates matters in front of the New Jersey State Public Employment Relations Commission, the New Jersey Office of Administrative Law, third party neutrals for mediation, grievance and interest arbitration, the Superior Court of New Jersey and the United States District Court for the District of New Jersey.

Mr. Crivelli founded and created the New Jersey Public Safety Officers Law Blog ( approximately fifteen (15) years ago where he and members of his firm routinely publish blog posts regarding legal issues related to the employment of New Jersey Public Safety Officers.  The blog now contains over six hundred (600) articles and is reviewed and relied upon by thousands of public employees.  Mr. Crivelli has also published books and manuals pertaining to New Jersey Public Employee Disability Pension Appeals and the New Jersey Worker’s Compensation System. Currently, he is drafting a publication on how to Prepare and Negotiate a Collective Bargaining Agreement.  He lectures annually at the New Jersey State PBA Collective Bargaining Seminar, the National Association of Police Organization’s Legal Seminar, the New Jersey Public Employment Relations Commission Seminar on Public Employment Labor Law, the United States Marine Corps’ Commander’s Media Training Symposium and to Union Executive Boards and General Membership bodies on various labor related topics.

Prior to entering private practice, Mr. Crivelli joined the United States Marine Corps where he served as a Judge Advocate with the Legal Services Support Section of the First Force Services Support Group in Camp Pendleton, California.  While serving in the Marine Corps, Mr. Crivelli defended and prosecuted hundreds of Special and General Court Martial cases and administrative separation matters.  In addition to his trial duties, Mr. Crivelli was also charged with the responsibility of training various Marine and Naval combat command elements on the interpretation and implementation of the rules of engagement for various military conflicts that were ongoing throughout the world at that time. After leaving active duty, Mr. Crivelli remained in the Marine Corps Reserves where he was promoted to the rank of Major before leaving the service.

For the past fifteen (15) years, Mr. Crivelli has been certified as a Civil Trial Attorney by the Supreme Court for the State of New Jersey, a certification which less than two percent (2%) of the attorneys in New Jersey have achieved.  He is a graduate of Washington College (B.A.), the City University of New York School of Law (J.D.), the United States Naval Justice School, and the Harvard Law School Program on Negotiation.

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