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: Scope of Local Government Officers and Employees Prohibited From Representing a Party Before a Local Government Agency 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. *** November 1, 1991 Barry Skokowski, Sr. Deputy Commissioner Department of Community Affairs CN 800 Trenton, New Jersey Re: : Scope of Local Government Officers and Employees Prohibited From Representing a Party Before a Local Government Agency, Pursuant to the Local Government Ethics Law. Dear Deputy Commissioner Skokowski: You have requested advice as to the scope of local government officers and employees prohibited from representing a person or party, other than the local government, before any agency in the local government in which he serves, as required by the Local Government Ethics Law, N.J.S.A. 40A:9-22.5(h). Specifically the advice sought is whether the prohibition of representation extends only to members of the legal profession or whether it also extends to other professionals such as a professional engineer or an architect. For the below states reasons you are advised that the prohibition of representation is not restricted to only members of the legal profession. Rather, it extends to local government officers and employees who stand in the place of another regarding any cause, proceeding, application, or another matter pending before any agency in the local government the officer or employee

2 serves. 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 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: This Code of Ethics is enforced by the Local Finance Board. N.J.S.A. 40: However, a county or municipality may establish a county or municipal ethics board to enforce the code of ethics. N.J.S.A. 40A: , N.J.S.A. 40A: The local board establishes a local code of ethics. N.J.S.A. 40A: If the local code is not identical to the State code, it is subject to the approval of the Local Finance Board. N.J.S.A. 40A: , N.J.S.A. 40A: Further, a local government officer or employee may request from the Local Finance Board an advisory opinion as to whether certain conduct would be a violation of the State Ethics Code. N.J.S.A. 40A: Also, a municipal or county ethics board may render advisory opinions for persons subject to its jurisdiction. N.J.S.A. 40A: , N.J.S.A. 40A: One of the provisions of the statutory code of ethics provides: No local government officer or employee or business organization in which he has an interest shall represent any person or party other than the local government in connection with any cause, proceeding, application or other matter pending before any agency in the local government in which he serves. This provision shall not be deemed to prohibit one local government employee from representing another local government employee where the local government agency is the employer and the representation is within the context of official labor union or similar representational responsibilities; [N.J.S.A. 40A:9-22.5(h)]. Thus, the Local Government Ethics Law prohibits person subject to the law from representing any person or party, other than the local government, in any matter before any agency in the local government

3 he serves. An exception is provided to allow local government employees to represent other local government employees in labor relations matters. Ibid. Further, a local government officer or employee is not prohibited from representing himself in a matter before a local government agency in which he has a direct and personal interest. N.J.S.A. 40A:9-22.5(k). Additionally, an elected "local government officer" is not prohibited from making an inquiry for information on behalf of a constituent, as long as no fee, reward, or other thing of value is promised to, given to, or accepted by the officer or a member of his/her immediate family, in return for the inquiry. N.J.S.A. 40A:9-22.5(j). The question is the scope of the term "representation" found in N.J.S.A. 40A:9-22.5(h). The term is undefined, but it is commonly understood that to "represent" a person is to stand in his place. Black Law Dictionary 6th, Ed., p (1990). It has been suggested that only attorneys represent" parties in proceeding before local agencies and that other professionals, e.g. engineers and architects, do not "represent" parties before local agencies. This position is supported to some extent by the decision of Slimm v. Yates, 236 N.J. Super. 558 (Chan. Div. 1989). In Slimm the Court considered the propriety of a real estate agent appearing before a local planning board on a subdivision application. The Court stated that generally only lawyers are permitted to conduct proceedings before an administrative agency. Slimm v. Yates, supra, 236 N.J. Super. at 562. Accordingly, the Court concluded that the real estate broker' s appearance before a local planning board constituted the unlawful practice of law. Slimm v. Yates, supra, N.J. Super. at 564. See also Committee on Unauthorized Practice of Law, Opinion No. 13, 98 N.J.L.J. 17 (January 9, 1975), (Appearance of non attorneys before Boards of Adjustment), and Opinion No. 16, 98 N.J.L.J. 553 (June 20, 1975), (Appearance of non attorneys' before Planning Boards). The role of other professionals in an agency proceedings is that of a witness for the applicant. Committee On Unauthorized Practice of Law, Opinion No. 21, 100 N.J.L.J (December 22, 1977). However, the prohibition in the Local Government Ethics Law is broader than representation in proceedings before local government agencies. Also, prohibited are representation in any cause, application, or other matter pending before any agency in the local government. N.J.S.A. 40A:9-22.5(h). The statute does not merely prohibit representation in legal proceedings in which an attorney would be necessary to provide such representation. Indeed, it is not unusual for professionals, other than attorneys, to submit applications and documents to local government agencies on behalf of another for planning board approval, for zoning approval,

4 for a construction permit, or for a variety of other locally required approvals. An attorney is not necessary to submit these types of applications. Committee on Unauthorized Practice of Law, Opinion No. 16, supra. For instance, it is common for a lay person to engage a professional, other than an attorney, to complete and submit the application and associated construction plans necessary to obtain a construction permit or a certificate of occupancy. The Uniform Construction Code Act recognizes that someone other than the building owner may submit an application for a construction permit, N.J.S.A. 52:27D-130 (agent, engineer, or architect). Further, it may reasonably be expected that if there are technical problems or questions associated with the application the owner's agent, engineer, or architect will deal directly with the municipal construction official to resolve the problem or question. Undoubtedly, there are other examples where a professional, other than an attorney, will act on behalf of the applicant to submit an application to a local government agency, to resolve any questions or difficulties associated with the application, or to represent an individual in his dealings with local government officials. One of the specific purposes of the Local Government Ethics Law is to avoid perceived conflicts between the local government officer's or employee's private interests and his public duties. N.J.S.A. 40A:9-22.2(c). The prohibition of N.J.S.A. 40A:9-22.5(h) are related directly to this legislative purpose. To conclude that the prohibition of "representation" by local government officers or employees is restricted to only attorneys is to construe the Act in a manner not contemplated by the Legislature. Perceived conflicts of interest are not limited to local government officers and employees who are attorneys. Indeed, this office in interpreting the State Conflict of Interests Law, N.J.S.A. 52:13D-12 et seq., has previously advised the State Executive Commission on Ethical Standards that the prohibition of representation of the casino industry by certain former State employees extended to accountants and the accounting firms that employed the accountants. See Attorney General Opinion, M (February 16, 1982) (Attached.) The opinion concluded that the serving of casino interests by an accounting firm constituted representation. Ibid. Similarly, within the context of the Local Government Ethics Law "representation" also includes any circumstances where an individual or a business organization in which he has an interest, stands in the place of another or acts in a representative capacity. For the above stated reasons, you are advised that any local government officer or employee or business organization in which he has an interest, is prohibited from representing a person

5 or party, other than the local government or his own personal interests, in connection with any cause, proceeding, application or other matter pending before any agency in the local government agency. This restriction applies whether the local government officer or employee is an attorney or not. Further, within the context of the Local Government Ethics Law "representation" is intended to include circumstances in which the local government officer or employee stands in the place of another regarding any cause, proceeding, application, or other matter pending before a local agency in the local government he serves. It should be noted that the determination as to whether a person is in violation of N.J.S.A. 40A:9-22.5(h) is a fact sensitive determination. Further, the Local Government Ethics Law provides a mechanism by which a local government officer or employee may seek an advisory opinion from the Local Finance Board, or if appropriate from the municipal or county ethics board, as to whether certain conduct would be in violation of the State Ethics Code. Individuals should be encouraged to seek an advisory opinion if they have any doubts as to whether their proposed activity violates N.J.S.A. 40A:9-22.5(h). Very truly yours, ROBERT J. DEL TUFO ATTORNEY GENERAL By: John J. Chernoski Senior Deputy Attorney General JJC/dey