Local Government Ethics Law Opinions of the Office of the Attorney General Subject: Appointment of the Members of Local Ethics Boards in Faulkner Act Municipalities. 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. *** June 5, 1992 Barry Skokowski, Sr. Deputy Commissioner Department of Community Affairs CN 800 Trenton, New Jersey 08625 Re: 92-0074: Appointment of the Members of Local Ethics Boards in Faulkner Act Municipalities. Dear Deputy Commissioner Skokowski: You have requested advice as to who is the proper appointing authority of the members of a municipal ethics board, created pursuant to the Local Government Ethics Law, N.J.S.A. 40A:9-22.1 et seq., in municipalities organized pursuant to the Optional Municipal Charter Law (Faulkner Act), N.J.S.A. 40:69A-1 et seq. For the reasons stated below you are advised that in Faulkner Act municipalities with a population greater than 100,000, the proper appointing authority of the members of a municipal ethics board is the mayor, with the advice and consent of council. In Faulkner Act municipalities with a population of 100,000 or less, you are advised that the proper appointing authority of the members of a municipal ethics board is the municipal council. The purpose of the Local Government Ethics Law is to provide a State-wide ethical code applicable to persons who serve in local government. N.J.S.A. 40A:9-22.1. The Code of Ethics is
enforced by the Local Finance Board in the Department of Community Affairs. N.J.S.A. 40A:9-22.4. However, a county or municipality has the option to establish a local ethics board. N.J.S.A. 40A:9-22.13(a), N.J.S.A. 40A:9-22.19(a). The local ethics board consists of six members who are residents of the county or municipality, as appropriate. Ibid. Once established, the local ethics board is required to promulgate by resolution a code of ethics for all local government officers and employees serving the jurisdiction. N.J.S.A. 40A:9-22.15, N.J.S.A. 40A:9-22.21. The local board has the option to adopt either the State code or a more restrictive code. Ibid. The local ethics board has responsibility to review and determine alleged violations of the local code of ethics, to enforce the local code, and to render advisory opinions. Ibid., see also Attorney General Opinion No. 91-0136 (May 19, 1992) and Attorney General Opinion No. 92-0061 (May 27, 1992) for a detailed discussion of the responsibilities of a local ethics board. In turning to the appointing process of the members of a municipal ethics board, the Local Government Ethics Law provides that each municipality may, by ordinance, establish a municipal ethics board. N.J.S.A. 40A:9-22.19(a). Further, "[t]he members of the ethics board shall be appointed by the governing body of the municipality." Ibid. The Local Government Ethics Law, N.J.S.A. 40A:9-22.3(c), defines the term "governing body" as "in the case of a municipality, the commission, council, board or body, by whatever name it may be known, having charge of the finances of the municipality..." The legislative authority of a municipality has charge of municipal finances. See, N.J.S.A. 40A:2-1 et seq. (Local Bond Law), N.J.S.A. 40A:4-1 et seq. (Local Budget Law), and N.J.S.A. 40A:5-1 et seq. (Local Fiscal Affairs Law); cf. Amato v. Bd. of Chosen Freeholders, 240 N.J. Super. 313 (App. Div. 1990) (The county's legislative body has the authority to introduce, approve, amend and adopt the budget pursuant to the Local Budget Law.) Accordingly, one would initially conclude that the legislative body of the municipality is the proper appointing authority of the members of the municipal ethics board. How-ever, the Faulkner Act, N.J.S.A. 40:69A-43(f), provides as follows: Whenever in a municipality with a popula-tion greater than 100,000, according to the latest federal decennial census, the governing body is authorized by any pro-vision of general law to appoint the mem-bers of any board, authority or commission, such power of
appointment shall be deemed to vest in the mayor with the advice and consent of the council. In all other municipalities, whenever the governing body is authorized by any provision of general law to appoint the members of any board, authority or commission, such power of appointment shall be deemed to vest in the mayor with the advice and consent of the council, unless the specific terms of that general law clearly require a different appointment procedure or appointment by resolution, in which case the appointment shall be by the council. The term "general law" is defined by the Faulkner Act, N.J.S.A. 40:69A-28, as:...any law or provision of law, not inconsistent with this act, heretofore or hereafter enacted which is by its terms applicable or available to all municipalities... Thus, the Local Government Ethics Law would be deemed a "general law" for purposes of the Faulkner Act. The result of this determination is that in a Faulkner Act municipality with a population of more than 100,000, the power to appoint the members of the municipal ethics board would vest in the mayor, subject to the advice and consent of council. N.J.S.A. 40:69A-43(f). Regarding Faulkner Act municipalities with a popula-tion of 100,000 or less, an examination of the Local Government Ethics Law is necessary to determine whether the specific terms of the Law clearly provide 1) a different appointment proce-dure, or 2) appointment by resolution. If the Local Government Ethics Law provide for either method of appointment, the municipal council would exercise the power to appoint the members of the municipal ethics board. N.J.S.A. 40:69A-43(f). The Local Government Ethics Law does not provide for the appointment of the members of the municipal ethics board "by resolution." Accordingly, the "resolution" provision of N.J.S.A. 40:69A-43(f) would be inapplicable. In turning to whether "the specific terms of that general law clearly pro-vides a different appointment procedure," as noted previously the Local Government Ethics Law defines in specific terms "governing body" to be "in the case of municipality, the commission, council, board or body, by
whatever name it may be known, having charge of the finances of the municipality." N.J.S.A. 40A:9-22.3(c). The question is whether the specific definition of "governing body" in the Local Government Ethics Law, "clearly provides a different appointment procedure," in which case the power of appointment would be exercised by the municipal council. The Court in Corrigan v. Palkoski, 213 N.J. Super. 316 (Law Div. 1986), considered a similar question. Specific-ally, the Court examined whether, in a Faulkner Act munic-ipality, the mayor or council was authorized to appoint the members of the zoning board of adjustment. The Court examined the legislative history of N.J.S.A. 40:69A-43(f) and determined that the statute was not intended to apply to zoning boards of adjustment. Corrigan v. Palkoski, supra, 213 N.J. Super. at 321 to 323. In the alternative, the Court also focused on whether the specific terms of the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq., clearly required a different appointment procedure for members of the zoning board of adjustment. Corrigan v. Palkoski, supra, 213 N.J. Super. at 322 to 323. The Court noted that the Faulkner Act provides that the mayor shall be the appointing authority "if the general law merely authorized appointment by the 'governing body.' The purpose is to give clear and definitive meaning to the term 'governing body' when it is used in that generic sense." Corrigan v. Palkoski, supra, 213 N.J. Super. at 323. The Court indicated that Municipal Land Use Law defined "governing body" in specific terms to be "the chief legislative body" and that the Municipal Land Use Law provided that the "governing body" was to determine by ordinance the method of appointment for members of the board of adjustment. Ibid. Accordingly, the Court concluded a "different appointment procedure" was established by the Municipal Land Use Law and that therefore, the mayor did not exercise appointing authority of the members of the board of adjustment. Ibid. While the Local Government Ethics Law does not con-tain language that the members of the municipal ethics board are to be appointed in a manner prescribed by the council, the Law does give a specific meaning to the term "governing body." This definition is specific and a not a generic term. Accord-ingly, the Local Government Ethics Law provides a "different appointment procedure" for the members of the municipal ethics board. Therefore, the mayor of a Faulkner Act municipality with a population of 100,000 or less does not exercise the appointing authority of the members of the municipal ethics board. For the above stated reasons you are advised that in a
Faulkner Act municipality with a population greater than 100,000, the proper appointing authority of the members of the municipal ethics board is the mayor, with the advice and con-sent of the council. In other Faulkner Act municipalities the proper appointing authority of members of a municipal ethics board is the municipal council. Very truly yours, ROBERT J. DEL TUFO ATTORNEY GENERAL By: John J. Chernoski Senior Deputy Attorney General