Local Government Ethics Law. Opinions of the Office of the Attorney General

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1 Local Government Ethics Law Opinions of the Office of the Attorney General Subject: Whether the Goerning Body of a Municipality or County May Adopt a Local Code of Ethics The following is the full text of advice issued by the Office of the Attorney General and received by the Local Finance Board. The content is a verbatim reproduction of the document received by the Board. It has been reformatted to make it accessible to the public through the Board s web site. *** May 19, 1992 Barry Skokowski, Sr. Deputy Commissioner Department of Community Affairs CN 800 Trenton, New Jersey Re: : Whether the Governing Body of a Municipality or County may adopt a Local Code of Ethics Dear Deputy Commissioner Skokowski: You have requested advice as to whether the governing body of a municipality or county may adopt a local code of ethics. For the below stated reasons you are advised that with the enactment of the Local Government Ethics Law, N.J.S.A. 40A: et seq., any local code of ethics governing persons who are "local government officers and employees," as defined by the Law, must be adopted by the municipal or county board of ethics in accordance with the procedures provided by the Local Government Ethics Law. The Local Government Ethics Law was enacted on February 20, 1991 and became effective 90 days thereafter on May 21, L. 1991, c. 29, 27. The purpose of the Act is to provide a statewide standard governing the ethical conduct of local government officers and employees and requiring financial

2 disclosure for local government officers. N.J.S.A. 40A:9-22.2(e). To effect this purpose the Legislature has established a statewide Code of Ethics applicable to local government officers and employees. N.J.S.A.40A: In the absence of action by the local government to establish a local ethics board, the Code of Ethics is enforced by the Local Finance Board in the Department of Community Affairs. N.J.S.A. 40A: Further, the Local Finance Board exercises appellate jurisdiction over the decisions of the local ethics boards. N.J.S.A. 40A: , N.J.S.A. 40A: A local government may elect to administer and enforce the Code of Ethics established by the Local Government Ethics Law. N.J.S.A. 40A: , N.J.S.A. 40A: Specifically, the local government may establish a local ethics board. N.J.S.A. 40A: (a), N.J.S.A. 40A: (a). A local ethics board consists of six members. Ibid. Two of the members must be public members. Ibid. No more than three members may be of the same political party. Ibid. 90 days after the establishment of the local ethics board, the board is required to promulgate by resolution a code of ethics for all local government officers and employees serving the local government. N.J.S.A. 40A: , N.J.S.A. 40A: The ethics code promulgated by the local ethics board shall either be identical to the State code or more restrictive. Ibid. Within 30 days of the promulgation of the local code, the local ethics board is required to conduct a public hearing. Ibid. As a result of the hearing the local ethics board may amend or supplement the local code as it deems necessary. Ibid. If the local code is not identical to the State code, the local code is required to be submitted to the Local Finance Board for approval. Ibid. The Local Finance Board is required to approve or disapprove the local code within 60 days of its receipt and if it fails to act within the time prescribed the local code is deemed approved. Ibid. The local code takes effect 60 days after approval of the Local Finance Board. Ibid. If the local code is identical to the State code, the local code takes effect 10 days after the public hearing. Ibid. The local ethics board has the responsibility to review complaints of alleged violations of the local code of ethics, to render advisory opinions, and to enforce the local code. N.J.S.A. 40A: N.J.S.A. 40A: Appeals of the decisions of the local ethics board are to the Local Finance Board. N.J.S.A. 40A: , N.J.S.A. 40A: Thus, the Local Government Ethics Law establishes a comprehensive scheme for the administration and enforcement of an ethics code by the Local Finance Board or by a local ethics board. The only responsibility of the local government's governing body is to establish a local ethics board, to appoint its members, to

3 provide the board with necessary space, equip-ment, supplies, and funding. N.J.S.A. 40A: , N.J.S.A. 40A: In contrast, the responsibility for the promulgation of the local ethics code and its administration and enforcement rests with the local ethics board. In these circumstances, a local governing body is not responsible or involved in the promulgation of a local code of ethics. Related questions are whether a local governing body may continue to administer and enforce a local code of ethics which predates the enactment of a Local Government Ethics Law or whether a governing body may establish a local code of ethics in a manner not prescribed by the State law. The resolution of these dual questions is dependent on whether the Local Government Ethics Law has preempted the field of local ethics. The doctrine of preemption is based on the proposition that a local government unit may not contradict a policy established by the Legislature. Overlook Terrace Management v. Rent Control Bd. of West New York, 71 N.J. 451, 461 (1976). The threshold question is whether the subject matter regulated by the local ordinance is the same as that regulated by the State scheme. Ibid. If the answer is in the affirmative the following inquiry is relevant. 1. Does the ordinance conflict with state law, either because of conflicting policies or operational effect, that is, does the ordinance forbid what the Legislature has permitted? 2. Was the state law intended expressly or impliedly to be exclusive in the field? 3. Does the subject matter reflect a need for uniformity? 4. Is the state scheme so pervasive or comprehensive that it precludes coexistence of municipal regulation? 5. Does the ordinance stand as an obstacle to the accomplishment and execution of the full purposes and objectives of the Legislature? [Ibid.] Concerning the first issue, the inquiry obviously requires an examination of the specific ordinance in question. However, a local code established outside the mechanism and

4 safeguards provided by the Local Government Ethics Law may result in conflict with State policy. The second inquiry is whether the State law was intended expressly or impliedly to be exclusive in the field. The purpose of the Local Government Ethics Law is in part to ensure that standards of ethical conduct and financial disclosure requirements for local government officers and employees be clear, consistent, uniform in their application, and enforceable on a statewide basis. N.J.S.A. 40A:9-22.1(e). Thus, the intent of the State Ethics Law is, expressly and impliedly, to be exclusive in the field of regulating the ethical conduct of local government officers and employees. Flowing from this determination is the need for the uniform application of the law. Ibid. Further, the State scheme provides the sole means to regulate the ethical conduct of local government officers and employees, so that it would preclude the coexistence of independent local regulation. Finally, a local ordinance which also regulates the ethical conduct of its officers and employees outside the State scheme would stand as an obstacle to the purpose and objectives of the Legislature to provide an ethical code applicable throughout the State. To the extent that the Legislature permits a local ethics board to impose more restrictive standards, the Local Finance Board must be directly involved in approving the more restrictive scheme and in reviewing, on appeal, the decision of a local ethics board that an individual has violated the local code of ethics. Thus, the State law provides for the establishment of a local ethics code, but with the State exercising oversight of the creation and administration of any established local ethics code. Accordingly, the Local Government Ethics Law has preempted the field of local ethics as it concerns the conduct of local government officers and employees and a local government may not enact or enforce an ethical code applicable to local government officers and employees in a manner inconsistent with the State law. It should be noted that the Local Government Ethics Law does not preempt the jurisdiction of the various State professional licensing authorities, e.g. the Supreme Court (Attorneys), State Board of Architects, State Board of Professional Engineers, from regulating the ethical conduct of its licensees. The jurisdiction of these licensing authorities is a furtherance of the State's police power to protect the public welfare and to ensure that the licensee comply with certain professional standards. New Jersey Chapter, American Institute of Planners v. N.J. State Bd. of Professional Planners, 48 N.J. 581 (1967), cert. denied 389 U.S. 8, 88 S.Ct. 70, 19 L.Ed.2d 8 (1967). The converse is also true. The existence of a regulatory authority which regulates the conduct of its licensees, who may also be "local government employees or

5 officers" does not preempt the Local Government Ethics Law. In re Mattera, 34 N.J. 259, 266 (1961) ("A single act of misconduct may offend the public interest in a number of areas and call for an appropriate remedy as to each hurt."); Joint Legislative Committee on Ethical Standards v. Perkins, 179 N.J. Super. 352 (App Div. 1981), certif. denied 91 N.J. 195 (1982), and Wood v. Dept. of Community Affairs, 243 N.J. Super. 187 (App. Div. 1990) (legislator-lawyer subject to the State Conflicts of Interest Law); Pillsbury v. Freeholders of Cty. of Monmouth, 133 N.J. Super. 526, 535 (Law Div. 1975), affirmed 140 N.J. Super. 410 (App. Div. 1976) (attorney who is a public officer subject to the laws affecting public officers.) Further, the Local Government Ethics Law does not apply to every person who serves in local government. Excluded from the scope of the law are local government agencies which are purely advisory in nature. N.J.S.A. 40A:9-22.3(e). Thus, an individual who serves on an excluded local agency would not be subject to the State law. Accordingly, as the State has not preempted the field as it concerns the ethical conduct of these individuals, the local government's governing body may estab-lish or continue a local code governing the ethical conduct of persons who serve on a local agency which is purely advisory in nature. For the above stated reasons, you are advised that a local government's governing body may not adopt a local code of ethics applicable to persons who are "local government officers and employees." Rather, any local ethics code applicable to "local government officers and employees" must be promulgated by the local ethics board established pursuant to the Local Government Ethics Law in the manner provided by the Law. Very truly yours, ROBERT J. DEL TUFO ATTORNEY GENERAL By: John J. Chernoski Senior Deputy Attorney General