| June 19, 2000
Gregory Romano
Executive Director
State Agriculture Development Committee
P.O. Box 330
Trenton, New Jersey 08625-0330
Re: 00-0041--Whether
Members of County
Agriculture Development Boards are
Subject to the Local Government Ethics
Law.
Dear Mr. Romano:
You have asked
whether the members of a County Agriculture
Development Board, established pursuant to N.J.S.A. 4:1C-14, are
subject to the Local Government Ethics Law, N.J.S.A. 40A:9-22.1
et
seq., and, if so, whether the Ethics Law would prohibit a member
from applying for a farmland preservation program which requires
the action of the County Agriculture Development Board which he/she
is a member. For the reasons which follow, you are advised that
a
County Agriculture Development Board, established in accordance
to
N.J.S.A. 4:1C-14, is a "local government agency" pursuant
to
N.J.S.A. 40A:9-22.3(e) and therefore the voting members of the
Board would be subject to the Ethics Law as "local government
officers" and required to file the annual financial disclosure
statement. Further, the Local Government Ethics Law would not
prohibit a member of the County Agriculture Development Board from
applying for a farmland preservation program which application
would be considered by the Board that he/she serves. However, the
member would be required to recuse himself/herself from considering
his/her own application and any other similar applications while
his/her own application is pending before the County Agriculture
Development Board.
The purpose of
the Local Government Ethics Law is to provide
a statewide ethics code applicable to persons who serve "local
government agencies" as "local government officers"
or as "local
government employees" and to require "local government
officers" to
file annual financial disclosure statements. N.J.S.A. 40A:9-22.1
et seq. In the absence of action by the county or municipal
governing body 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:9-22.4.
The first inquiry
is whether a County Agriculture
Development Board is a "local government agency" for purposes
of
the Local Government Ethics Law. A "local government agency"
is
defined as,
any agency,
board, governing body, including
the chief executive officer, bureau, division,
office, commission or other instrumentality
within a county or municipality, and any
independent local authority, including any
entity created by more than once county or
municipality, which performs functions other
than of a purely advisory nature, but shall
not include a school board. [N.J.S.A. 40A:9-22.3(e).]
This term is very
all-inclusive and would include any local
government unit or body, except for purely advisory bodies and
school boards.
The Agriculture
Retention and Development Act, N.J.S.A. 4:1C-11
et seq., permits the governing body of a county to establish a
County Agriculture Development Board (hereinafter CADB). N.J.S.A.
4:1C-14(a). The Board members are appointed by the board of chosen
freeholders, county executive, or county supervisor, as the case
may be, and the membership consists of three non-voting members
(a
representative of the county planning board, a representative of
the local soil conservation district, and the county agent of the
New Jersey Cooperative Extension Service) and seven voting members,
four of whom shall actively be engaged in farming and three of whom
shall represent the general public. Ibid. The voting members are
required to be county residents. Ibid. The appropriate county
appointing authority may also appoint other advisory members to
the
board. N.J.S.A. 4:1C-14(c). The meetings of the CADB are subject
to the provisions of the Open Public Meeting Law. N.J.S.A. 4:1C-14(e).
The duties of
a CADB include the development and adoption of
agricultural retention and development programs, establishment of
minimum acreage requirements for municipal programs and other
farmland preservation programs, review and approval of petitions
for the formation of municipal programs and other farmland
preservation programs, review and approval of any requests for
financial assistance authorized by the Law, monitoring and making
of recommendations to the State Agriculture Development Committee
and the appropriate county and municipal governing boards regarding
government action that would threaten agricultural activities and
farmland preservation programs, and, at the request of a
municipality, requiring any person proposing non agricultural
development in an agricultural develop area to prepare and submit
an impact statement. N.J.S.A. 4:1C-15.
The Board also
makes recommendations to the County Planning
Board regarding the area that should be designated as an
agricultural development area. N.J.S.A. 4:1C-18. Further, if any
public body or public utility intends to acquire real property or
commence certain construction activity within an agricultural
development area, the Board is to receive notice of the proposed
activity. N.J.S.A. 4:1C-19(a). If the CADB finds that the
proposed action would cause unreasonably adverse effects on the
agricultural development area or State agricultural preservation
and development programs, the CADB may direct that no action be
taken for 60 days, during which time public hearings are conducted.
N.J.S.A. 4:1C-19(b). Also, landowners may enter into agreements
with a CADB to retain land in agricultural production for a period
of time and to convey a development easement on land to the board.
N.J.S.A. 4:1C-24(a). In regard to development easements, the CADB
reviews and evaluates the offer to sell based upon certain
statutory criteria. N.J.S.A. 4:1C-31. The Board also has the
authority to consider complaints filed by persons aggrieved by the
operation of a commercial farm and to issue findings of fact and
recommendations. N.J.S.A. 4:1C-10.1.
Thus, a CADB
is a board created by a county to exercise an
important and pivotal role in the implementation of the Agriculture
Retention and Development Act in the county. As discussed above,
the statutory responsibilities of a CADB go well beyond that of
"a
purely advisory nature" and a CADB is clearly a "local
government
agency" for purposes of the Local Government Ethics Law.
The next inquiry is whether the members of a CADB are "local
government officers" or "local government employees."
While both
local government officers and employees of a county are required
to
adhere to the statutory code of ethics or a more restrictive code
established by a county ethics board, only "local government
officers" are required to file the annual financial disclosure
statement. N.J.S.A. 40A:9-22.5, N.J.S.A. 40A:9-22.6, N.J.S.A.
40A:9-22.15.
"Local government officers" are 1) elected officials;
2)
members of local government bodies that have authority to enact
ordinances, approve development applications, or grant zoning
variances; 3) members of independent local authorities; and 4)
persons who are "managerial executives" or "confidential
employees." N.J.S.A. 40A:9-22.3(g). In contrast to a "local
government officer," a "local government employee"
is defined as
"any person, whether compensated or not, whether part-time,
employed by or serving on a local government agency who is not a
local government officer, but shall not mean an employee of a
school district." N.J.S.A. 40A:9-22.4(f). Thus, this definition
goes beyond the traditional definition of "employee" within
the
labor relations context and seeks to identify persons who serve
local government.
The members of
a CADB are not within the scope of the first
three classes of "local government officers." In Attorney
General
Opinion No. 91-0093 (September 20, 1991), we examined in detail
the
fourth category of "local government officers." Essentially
a
"managerial executive" is a person who formulates management
policies or who is charged with the responsibilities of directing
the effectuation of management policy. In contrast a "confidential
employee" is an individual who has access to confidential
information of the employer which is relevant to the labor
relations of the local government agency. We noted in the opinion,
that the Legislature in using these terms to define a "local
government officer" was attempting to adopt an approach that
would
identify persons of a high level with policy making
responsibilities. In applying these guidelines within the context
of the Local Government Ethics Law, we have previously opined that
while certain public officials may not be considered "employees"
in
a strict labor relations sense, the purpose of the Local Government
Ethics Law is to subject "policy makers" who serve local
government
to the requirements of the Law as "local government officers."
See
e.g. Attorney General Opinion No. 91-0090 (September 20, 1991)
(County Prosecutors); Attorney General Opinion No. 91-0092
(September 20, 1991) (Municipal Attorneys); See also, Dept. of
Community of Affairs v. Cook, 282 N.J. Super. 207, 209 (App. Div.
1995) (Board of Trustees of a Municipal Library). The result is
that these "policy makers" as "local government officers"
are
required to submit an annual financial disclosure statement.
N.J.S.A. 40A:9-22.6.
In considering
these principles as they apply to the voting
members of a CADB it is apparent that the voting members exercise
significant policy-making responsibilities and independent judgment
in the specialized area of farmland preservation including the
authority to expend public monies to purchase development
easements, temporarily halt some types of construction activity
within an agricultural development area, and consider complaints
against commercial farms. They would accordingly be deemed "local
government officers" for purposes of the Local Government Ethics
Law and required to file an annual financial disclosure statement.
In turning to
the three non voting members of a CADB, a
different conclusion results. These non voting members are a
representative of the county planning board, a representative of
the local soil conservation district, and the appropriate county
agent of the New Jersey Cooperative Extension Service. N.J.S.A.
4:1C-14(a). In Attorney General Opinion No. 91-0093, pp. 12-13
(September 20, 1991), we opined that ex officio government
officials serving on a "local government agency" would
not
generally be subject to the restrictions imposed upon "local
government officers" by the Local Government Ethics Law merely
because of their status as ex officio members. Rather, these
individuals would be subject to the ethical restrictions or
requirements imposed upon them as a result of the governmental
position or employment they hold, which resulted in their ex
officio appointment. Ibid. Thus, the representative of the County
Planning Board would independently be governed by the Local
Government Ethics Law, the County Agent as an employee of Rutgers
would be governed by the ethics code applicable to the officers
and
employees of this State University, and the representative of the
Soil Conservation District would generally be subject to the State
ethics code applicable to officers and employees of State agencies.
Having concluded
that the voting members of a CADB would be
deemed "local government officers" and subject to the
requirements
of the Local Government Ethics Law, the next question is whether
the Ethics Law would prevent a CADB member who is a farmer or a
farmland owner from applying for a farmland preservation program
which requires the action of the CADB. As noted previously, the
voting members of the CADB are required to be county residents and
four of the seven voting members are required to be "actively
engaged in farming" with a majority of these four members owning
farmland. N.J.S.A. 4:1C-14(a). Obviously the Legislature
concluded that farmers and farmers who are farmland owners are
essential in advancing the important State policy of farmland
preservation. The Legislature's decision to require that persons
of a particular occupation or profession be included as members
of
a governmental board is certainly not unusual. See e.g. N.J.S.A.
52:27D-305(a) (requiring a portion of the Council on Affordable
Housing membership to be new home builders); N.J.S.A. 8A:2-1(b)
(requiring a majority of the Cemetery Board to have experience in
the cemetery business). Rather, it is a legislative recognition
that these persons bring a particular insight in advancing an
important State policy. Indeed, the Ethics Law recognizes that in
implementing ethical standards some perceived conflicts of interest
may be legitimate and unavoidable in a democracy and that the Local
Finance Board is to be mindful that public officials and employees
cannot be expected to be without personal interests in the policies
of local government. N.J.S.A. 40A:9-22.4. Specifically, the
statutory code of ethics, N.J.S.A. 40A:9-22.5(k), provides that
[n]othing
shall prohibit any local government
officer or employee, or members of his
immediate family, from representing himself,
or themselves, in negotiations or proceedings
concerning his, or their, own interests.
Thus, the Legislature
has recognized that local government officers
and employees may have their own individual interests which require
them to interact with the very local government agency that they
serve and the Legislature has permitted such interaction. See also
Wyzykowski v. Rizas, 132 N.J. 509, 530-31 (1993).
Previously, this
Office considered the question of whether the
citizen members of the State Agriculture Development Committee
could participate in the farmland preservation program or sell
development rights to the county in which his/her farm was located.
Attorney General Opinion No. 84-6311 (September 14, 1988). The
opinion considered the State ethics law, N.J.S.A. 52:13D-12 et
seq., governing State officials and employees and common law
conflicts of interest principles in concluding that the citizen
members of the State Committee could participate in the farmland
preservation program and sell their farmland's development rights.
On the other hand, the opinion concluded that the citizen members
should recuse themselves from voting on their own applications or
on applications from the counties in which the members' properties
were located during the pendency of their own applications. The
latter conclusion was based on the fact that there are limited
financial resources available for farmland preservation programs
and that the public could perceive that a vote on other
applications, while the member's own application was pending, could
affect the availability of funds available to purchase the member's
own development rights.
The common sense
reasoning of this 1988 opinion continues to
be relevant today within the context of the Local Government Ethics
Law as it is applicable to the members of a CADB. Indeed, the
Local Government Ethics Law, N.J.S.A. 40A:9-22.5(k), permits local
government officers and employees to pursue their own individual
interests. However, the CADB's voting members must remain
cognizant that they are required to adhere to the ethics code of
the Local Government Ethics Law in their day-to-day implementation
of the State farmland preservation program within their respective
county and in certain circumstances they may be required to refrain
from taking action on a particular application or matter. While
we
have provided some general guidance that CADB members should not
vote on their own application or other applications while their
individual application is pending, the determination of whether
a
disqualifying interest exists in a particular case is extremely
fact sensitive and beyond the scope of this opinion to address in
detail. However, it should be noted that CADB members may request
advisory opinions from the Local Finance Board or the appropriate
county ethics board as to whether proposed conduct or action would
rise to the level of an ethics violation. N.J.S.A. 40A:9-22.8;
N.J.S.A. 40A:9-22.17.
For the foregoing reasons, you are advised that a County
Agriculture Development Board, established in accordance to
N.J.S.A. 4:1C-14, is a "local government agency" pursuant
to
N.J.S.A. 40A:9-22.3(e) and therefore the voting members of the
Board would be subject to the Ethics Law as "local government
officers" and required to file an annual financial disclosure
statement. Further, the Local Government Ethics Law would not
prohibit a member of the County Agriculture Development Board from
applying for a farmland preservation program which application
would be considered by the Board that he/she serves. Rather, the
member would be required to recuse himself/herself from considering
his/her own application and any other similar applications while
his/her own application is pending before the County Agriculture
Development Board.
Sincerely yours,
JOHN J. FARMER,
JR.
ATTORNEY GENERAL OF NEW JERSEY
By:______________________________
John J. Chernoski
Deputy Attorney General
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