“[T]he terms and the spirit of the agreement entered into by the State and appellants precluded any evidential use of the pleas and convictions in subsequent civil proceedings. Thus, this case is not strictly analogous to other instances in which prior pleas of nolo contendere have been considered in disciplinary proceedings... ”
How later courts described this case
- “[T]he terms and the spirit of the agreement entered into by the State and appellants precluded any evidential use of the pleas and convictions in subsequent civil proceedings. Thus, this case is not strictly analogous to other instances in which prior pleas of nolo contendere have been considered in disciplinary proceedings... ”
- 5 Justices + 2 judges temporarily assigned
- "Pursuant to R. 3:9-2, and with the consent of the prosecuting attorney, [the trial court] issued two orders prohibiting the use of the guilty pleas of the two companies as evidence . . . . "
- Carton, P.J.A.D., temporarily assigned, dissenting
Written by the judges who cited it.
The opinion
Coneoed, P. J. A. D.,
Temporarily Assigned (concurring and dissenting in part).
I concur in the reversal, but regard the terms of the remand as insufficiently informative to the Commissioner as to the criteria he may employ in determining the “responsibility” of “the present ownership”. To that extent, therefore, I dissent. I would confine the Commissioner on the remand to debarment criteria related to the moral unfitness of Gene and Vincent Gallo personally. I would expressly preclude him from debarring the Gallo business entities on the basis of their imputed unfitness ascribable to the derelictions of the deceased Mario Gallo. This precaution is necessary because the previous determinations of the Commissioner indicate a disposition to debar on that basis.
In the lead case in this area this Court made it unmistakably clear that “[t]he moral responsibility of a corporation is one and the same with the moral responsibility of the individuals who give it direction.” Trap Rock Industries *415 Inc. v. Kohl, 59 N. J. 471, 482 (1971). Thus the proprietary identification with a corporation of one indicted for bribery was there held sufficient to warrant suspension of the corporation as a bidder while such idtentification continued. But, here, assuming the Commissioner on remand is unable to establish moral dereliction on the part of the surviving Gallo brothers personally, it would be fictional to impute present moral unfitness to the business entities, which are now the alter egos of the surviving brothers only, solely because of what Mario did in his lifetime. In the language of Trap Rock Industries, supra, he no longer “give[s] direction” to the businesses. To debar Gene and Yincent for the sins of Mario would not only subserve the unjust concept of guilt by association but prejudice the interests of the State by depriving it of the benefit of the availability of experienced and apparently reliable contractors.