Ethics violation charges against Abilheira dismissed
BY JENNIFER KOHLHEPP
Staff Writer

MILLSTONE - Township Commit-teeman Elias Abilheira has been cleared of a formal ethics complaint that has been looming since 2005.

On May 17, a three-person District IIIA Ethics Committee panel conducted a hearing and unanimously agreed to dismiss the charges against Abilheira after concluding that his actions during a May 25, 2005, Planning Board meeting did not constitute unethical conduct.

"There was insufficient evidence to show by clear and convincing proof that [Abilheira] had an actual conflict of interest with any party," the panel determined.

The panel further determined that there was no evidence that Abilheira attempted to manipulate the board's decision or tried to interfere with the board's independent operation.

Resident Frank Geck had filed the ethics complaint against Abilheira after the 2005 board meeting. At that time, Abilheira, who is an attorney, was also mayor of Millstone Township.

Geck alleged that Abilheira was responsible, in part, for the passage of some variances under consideration by the board and that he represented a potential purchaser of the property that needed the variances in front of the board that evening.

Geck's original grievance was filed in June 2005. An investigation ensued, and a report was ultimately prepared by the assigned investigator, Kathleen Peterson, Esq. Her Oct. 5, 2005, report concluded that no rules of professional conduct were violated. She also recommended a dismissal of the matter.

Geck appealed Peterson's findings on Jan. 1, 2006. Investigator Kevin E. Young reviewed the matter and presented his report on the matter June 26, 2006.

Young concluded that he perceived conflict of interest in the situation.

"As a mayor, the respondent not only can influence the passage of zoning rules, [but] he is also in a position to appoint those who interpret or decide issues relating to existing rules and regulations," Young stated in his report. "Because [Abilheira] represented a developer who could benefit or be harmed by ordinance changes or the passage of new ordinances, he could not undertake the representation of either, and at the same time provide independent advice or competent representation to either the public entity or the client."

As a result of Young's report, on Aug. 28, 2006, Abilheira demanded a hearing on the charges.

The hearing panel, which consisted of two attorneys and a member of the public, found as a result of reviewing testimony and exhibits that the Labarbera family owned the Millstone parcel at 40 Brookside Road and in 2004 contacted Abilheira, in his capacity as a Millstone committeeman, regarding the requirement for a variance to build a home on the lot. The Labarberas were advised that there was no requirement for a variance and that all they needed to do was pull building permits.

However, in early 2005, Abilheira became mayor of the township and drafted a new ordinance regarding the development of parcels in Millstone, which resulted in the Labarberas having to get a variance to build their house.

On May 13, 2005, the Labarberas entered into a real estate contract with NJY Builders, whom Abilheira represented and completed contract review for. Abilheira told the panel that since it became apparent that the Labarberas could not provide NJY Builders with the necessary permits, the initial real estate contract was voided and a new one was later reinstated.

The panel determined that Abilheira was in the municipal building the night of the meeting in question but did not enter the meeting room until he saw Mrs. Labarbera become visibly upset. Abilheira then entered the meeting and told the board he could explain why the family needed a variance as he drafted the new ordinance.

The panel reported that Abilheira presented clear and convincing proof that he was not engaged as the attorney for the purchaser of the property at the time he appeared as an elected official to answer factual questions for the board, given that the contract at that point had been terminated.

The panel also reported that Abilheira disclosed his prior involvement with the contract purchaser, recognized the potential conflict of interest issue during the meeting, inquired of the board attorney as to the potential conflict of interest issue and asked for permission from the board and its attorney before making any statements.

The panel also reported that Geck reported that he did not have any proof that Abilheira received any money or "kickbacks" for his testimony before the board.

"As there was insufficient [evidence] - in fact, no evidence offered - to show that [Abilheira] was 'representing' another client which created an actual conflict," the panel concluded, "[Abilheira] did not run a 'substantial risk' that his appearance before the Board of Adjustment on May 25, 2005, would limit his ability to provide either the public entity or his client independent advice or diligent, competent representation."

When questioned on June 11 about how the township's Republican County Executive Committee (RCEC) reviewed the situation, Chairman Steven Lambros said the Republican Party did not know about the charges against Abilheira until it got wind of a report posted about the allegations on New Jersey Bartender (www.njbartender.org). The Web site, which is run by Franklin Township resident John Paff, keeps track of attorney discipline matters. The site had posted Young's 2006 report regarding the potential ethics violation.

After reading the report, Lambros said he later spoke to those involved in the matter and asked Abilheira to explain to the RCEC what the situation was. However, he said Abilheira refused to explain the situation to the committee.

"The Republican organization for the last 10 years has done tremendous good for Millstone residents," Lambros said. "The Republicans are a group of people committed to keeping everyone honest and on an open front. Everyone is entitled to know the truth."

Lambros said it would have been prudent for Abilheira to inform the RCEC the charges existed so that it would know what it was dealing with.

Prior to June 14, Paff's Web site did not contain updated information regarding the charges against Abilheira. However, in a phone conversation with Abilheira on June 7, Abilheira had assured the Examiner that the charges against him were dismissed. The Examiner had tried to contact other parties involved to confirm his statement but could not do so until June 14, when Paff provided the latest official report regarding the matter.

During the earlier interview with Abilheira, he said that the issue became a hot topic again when www.millstonetownship.com, an unofficial township Web site, started generating numerous posts about the out-of-date report posted on Paff's Web site.

Abilheira alleged that his detractors started making an issue of the out-of-date report because they knew that the charges had recently been dismissed but that a public report of the dismissal had not yet been released.

"People who don't like what I stand for tried to attack my credibility," he said. "When they found out the charges were dismissed, they tried to muddy up the issue before the dismissal was posted."

Abilheira said he found Lambros' comments disappointing but not unexpected.

"The complaint against me, its dismissal and appeal were the subject of public campaign material for the past two years," Abilheira said. "Any member of the RCEC or the general public who wanted any information regarding the issues contacted me and was fully satisfied with the truth, that the complaint was without merit and would be unanimously dismissed again, before re-electing me last year for a second term.

"For Mr. Lambros to pretend otherwise is simply sad," Abilheira added. "Unfortunately, I have to say I'm not surprised by his comments, though I know many of the members of the RCEC are."