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Barry Skokowski, Sr.
Deputy Commissioner
Department of Community Affairs
CN 800
Trenton, New Jersey 08625-0800

Re: 91-0090: County Prosecutors as "Local
Government Officers" Pursuant to the
Local Government Ethics Law.

Dear Deputy Commissioner Skokowski:

You have asked whether county prosecutors are "local
government officers" pursuant to the Local Government Ethics Law,
N.J.S.A. 40A:9-22.1 et seq. For the following reasons, you are
advised that county prosecutors are "local government officers"
under the Local Government Ethics Law and therefore subject to its
terms, particularly the requirement of filing a financial
disclosure statement.

The Local Government Ethics Law was enacted on February
20, 1991 and became effective 90 days thereafter on May 21, 1991.
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:9-22.5. This Code of Ethics is enforced
by the Local Finance Board. N.J.S.A. 40A:9-22.4. However, a
county or municipality may establish a county or municipal ethics
board to enforce the code of ethics. N.J.S.A. 40A:9-22.13,
N.J.S.A. 40A:9-22.19. A county or municipal ethics board
establishes the local code of ethics. N.J.S.A. 40A:9-22.13,
N.J.S.A. 40A:9-22.19. 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:9-22.13, N.J.S.A. 40A:9-22.19.

In addition to adhering to the ethical guidelines set
forth in the law, a "local government officer" is required to file
annually a financial disclosure statement, N.J.S.A. 40A:9-22.6,
which contains information about his or her sources of income,
certain business interests, and his or her real estate holdings in
New Jersey. Ibid. (The initial financial disclosure statement is
to be filed by August 19, 1991 and thereafter by April 30. Ibid.)
To be subject to the requirement of filing a financial disclosure
statement, one must satisfy the test of being a local government
officer of a local government agency. N.J.S.A. 40A:9-22.6.

The term "local government officer" is
defined as, any person whether compensated or
not, whether part-time or full-time: (1)
elected to any office of a local government
agency; (2) serving on a local government
agency which has the authority to enact
ordinances, approve development applications
or grant Zoning variances; (3) who is a member
of an independent municipal, county or
regional authority; or (4) who is a managerial
executive or confidential employee of a local
government agency, as defined in section 3 of
the "New Jersey Employer-Employee Relations
Act,'' P.L. 1941, c. 100 (C. 34:13A-3), but
shall not mean any employee of a school
district or member of a school board.
[N.J.S.A. 40A:9-22.3(g)].

Thus, a variety of persons serving in a "local government agency"
are included within the definition of "local government officer."

In order to understand who is a "local government
officer" the term "local government agency" should be examined. 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 one 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)].

The term "local government agency" encompasses a myriad of local
government bodies and individuals. The definition is very broad
and specifically excludes only purely advisory bodies and school
boards.

The threshold question to be resolved here is whether the
county prosecutor serves in a "local government agency." The
position of county prosecutor is established by the New Jersey
Constitution. N.J. Const. (1947), Art. VII, II, 1. A county
prosecutor is appointed by the Governor with the advice and consent
of the Senate, ibid, is a constitutional officer, Morss v. Forbes,
24 N.J. 341, 369 (1957), and holds an "office." State v. Winne, 12
N.J. 152, 169-170 (1953). The county prosecutor has broad
responsibilities to enforce the State's criminal laws. N.J.S.A.
2A:158-1, N.J.S.A. 2A:158-5. Further, the county prosecutor has
the authority to appoint assistant prosecutors, N.J.S.A. 2A:158-15,
county detectives, N.J.S.A. 2A:157-2, and other staff personnel to
assist him or her. N.J.S.A. 2A:157-19. See also In re Application
of Bigley, 55 N.J. 53 (1969).

In Morss v. Forbes, supra, the Supreme Court examined a
county prosecutor's claim that he was a member of the State's
Executive Branch. The Court concluded that the county prosecutor
"is primarily a local official." Morss v. Forbes, 24 N.J. at 373.
Further, the expenses incurred by the county prosecutor are paid by
the county. N.J.S.A. 2A:158-7. The authority of the county
prosecutor is limited to his or her own county and is local in :
nature. Passaic Cty. Prosecutor v. Passaic Cty. Bd. of Chosen
Freeholders, 159 N.J. Super. 258, 263-64 (App. Div. 1978). The
oath of the county prosecutor recognizes that he or she is
exercising his or her duties "in and for ... (his or her) county."
N.J.S.A. 2A:158-3. The county prosecutor's assistants and staff
personnel are considered county officials or employees. Passaic
Cty. Prosecutor v. Passaic Cty. Bd. of Chosen Freeholders, supra.
Further, when the Attorney General appoints an acting county
prosecutor the county continues to fund the prosecutor's office.
N.J.S.A. 52:17B-108.

It has been suggested that county prosecutors are "State
officers" and therefore by implication subject to the State's
Conflict of Interest Law, N.J.S.A. 52:13D-12 et seq. The Law
provides a code of ethics for State officers and employees,
N.J.S.A. 52:13D-23. Further, certain "public officers" and "public
employees" are required to file annual financial disclosure
statements. Executive Order No. 1 (1990) and Executive Order No.
9, (1990). Included within the scope of "public officers" and
"public employees" are certain specifically enumerated positions
and, in general, office holders in State departments and agencies.
Ibid. These individuals are also restricted from being employed or
having an interest in the casino industry for two years from the
date they terminate State service. N.J.S.A. 52:13D-17.2. Not
specifically included within the scope of the State Conflict of
Interest Law or the Executive Order is the county prosecutor. If
indeed the county prosecutor was subject to the State Conflict of
Interest Law, it can be assumed that the Governor would have
specifically included this important governmental position within
the scope of his Executive Orders. This is a further indication
that a county prosecutor is a "local official" rather than a "State
official." Based on the above, it is our view that the office of
county prosecutor is an office within a county and that the office
of county prosecutor is a "local government agency" for purposes of
the Local Government Ethics Law.

Having determined that the office of county prosecutor is
a "local government agency," it is necessary to determine if that
puts the county prosecutor in the category of a person serving in
a "local government agency" deemed to be a "local government
officer." Included as "local government officers" are 1) elected
local officials; 2) members of local bodies that have authority to
enact ordinances, approve development applications, or grant zoning
variances; and (3) members of independent local authorities;
N.J.S.A. 40A:9-22.3(g). The county prosecutor clearly is not
within the scope of these three classes of local government
officers.

The fourth and last category of "local government
officer" is a person "who is a managerial executive or confidential
employee of a local government agency, as defined in section 3 of
the 'New Jersey Employer-Employee Relations Act,' P.L. 1941, c. 100
(C. 34:13A-3), but shall not mean any employee of a school district
or member of a school district." N.J.S.A. 40A:9-22.3(g)(4). As the
Local Government Ethics Law makes specific reference to the
definitions contained in the Employer-Employee Relations Act, it is
necessary to examine the latter statute.

The Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et
seq., provides a mechanism for the resolution of labor disputes in
the private and public sectors. N.J.S.A. 34:13A-2. The Act is
administered by the State's Public Employment Relations Commission
(PERC). N.J.S.A. 34:13A-5.2. The Act defines "managerial
executives" of a public employer as,

persons who formulate management policies and
practices, and persons who are charged with
the responsibility of directing the
effectuation of such management policies and
practices, except that in any school district
this term shall include only the
superintendent or other chief administrator,
and the assistant superintendent of the
district. [N.J.S.A. 34:13A-3(f)].

"Confidential employees" of a public employer are defined as,

employees whose functional responsibilities or
knowledge in connection with the issues
involved in the collective negotiations
process would make their membership in any
appropriate negotiating unit incompatible with
their official duties. [N.J.S.A. 34:13A-3(g)].

The significance of "managerial executives" and
"confidential employees" under the Employer-Employee Relations Act
is that these individuals are excluded from membership in the local
collective bargaining unit comprising of local public employees.
N.J.S.A. 34:13A-5.3. The underlying purpose of this exclusion is
that "managerial executives" and "confidential employees" have
access to highly confidential labor relations information which
place persons in these positions in an intolerable conflict of
loyalties if they were to be part of a collective bargaining unit.
Wayne Tp.
v. AFSME, Council 52, 220 N.J. Super. 340, 346 (App. Div. 1987). In
incorporating a labor relations standard into the Local Government
Ethics Law, the Legislature was attempting to adopt an approach
which would help identify persons of a high level with policy-making responsibilities.

Neither the Employer-Employee Relations Act nor PERC's
regulations, N.J.A.C. 10:1-1 et seq., provide an enumeration of
positions in local government which are deemed "managerial
executive" or a "confidential employee." Rather, the determination
of which positions are "managerial executive" or "confidential
employee" are case-by-case judgments. See, e.g., In the Matter of
Township of Clark, 11 NJPER 283 16104 (1985), (Township
construction official was not a managerial executive). However,
PERC in its decisions has provided general guidance in making the
determination as to whether a person is a "managerial executive" or
"confidential employee."

A "managerial executive" is a person "who formulates
management policies or practices and persons ... charged with the
responsibility of directing the effectuation of such management
policies and practices...." N.J.S.A. 34:13A-32.3(f). PERC has
established guidelines for determining whether a person formulates
management policy and directs its effectuation.

A person formulates policies when he develops
a particular set of objective designed to
further the mission of the governmental unit
and when he selects a course of action from
among available alternatives. A person
directs the effectuation of policy when he is
charged with developing the methods, means,
and extent of reaching a policy objective and
thus oversees or coordinates policy
implementation by line supervisors. Simply
put, a managerial executive must possess and
exercise a level of authority and independent
judgment sufficient to affect broadly the
organization's purposes or its means of
effectuation of these purposes. Whether or
not an employee possesses this level of
authority may generally be determined by
focusing on the interplay of three factors:
(1) the relative position of that employee in
his employer's hierarchy; (2) his functions
and responsibilities; and (3) the extent of
discretion he exercise. [Boro of Montvale, 6
NJPER 507, 508-09 011259 (1980)].

Thus, the determination as to whether a person is a
"managerial executive" requires an examination of the person's
position in the local agency's hierarchy, his or her job function
and responsibilities, and the amount of discretion exercised by the
individual. The analysis of these three factors is very often a
position-by-position determination.

The determination as to whether a person is a
"confidential employee" also requires an individualized
determination. PERC has narrowly construed the term "confidential
employee." County of Essex, 17 NJPER 256, 257 22118 (1991). The
"key" to status as a confidential employee "is an employee's access
to, and knowledge of, material used in labor relations processes
including contract negotiations, contract administration, grievance
handling and the preparation of these processes." Ibid.
Specifically, PERC makes this case-by-case analysis as follows:

We (PERC) scrutinize the facts of each case to
find for whom each employee works, what he
does, and what he knows about collective
negotiations issues. Finally, we determine
whether the responsibilities or knowledge of
each employee would compromise the employer's
right to confidentiality concerning the
collective negotiations process if the
employee was included in a negotiating unit.
[State of New Jersey, 11 NJPER 507, 510 16179
(1985)].

Thus, a "confidential employee" has access to confidential
in-formation of the employer which is relevant to the labor relations
of the local government agency.

In examining PERC's guidelines and the statutory duties
of the county prosecutor, one could conclude that a county
prosecutor is per se a "managerial executive" and "confidential
employee." (The county prosecutor is responsible for the
preparation of a budget for the office and is empowered to take
necessary action to challenge the level of county funding if he
believes it to be inadequate." Application of Bigley, supra.
Further, the county prosecutor is generally responsible for labor
relations matters in the office. Zamboni v. Stamler, 194 N.J.
Super. 598 (Law Div 1984), affirmed 199 N.J. Super. 378 (App. Div.
1985)). However, the Employer-Employee Relations Act defines these
terms as "managerial executives" and "confidential employees" "of
a public employer." N.J.S.A. 34:13A3(f)(g). A "public employer"
includes "the several counties and municipalities ... or any other
political subdivision of the State ... or any special district, or
any authority, commissioner, board, or any branch or agency of the
public service." N.J.S.A. 34:13A-3(c). For purposes of the
Employer-Employee Relations Act the county prosecutor is a "public
employer." Bergen Cty. of Chosen Freeholders v. Bergen Cty.
Prosecutor, 172 N.J. Super. 363 (App. Div. 1980); In re Mercer Cty.
Bd. of Chosen Freeholders v. Mercer Cty. Prosecutor, 172 N.J.
Super. 411 (App. Div. 1980).

Thus, an argument could be fashioned that a county
prosecutor is neither a "managerial executive" nor a "confidential
employee" since he or she is the "public employer" of these
individuals. The result of this argument is that the "managerial
executives" and "confidential employees" of the county prosecutor,
his or her subordinates who work under his or her direction, would
be "local government officers," while the prosecutor would not be
a "local government officer."

However, statutes are to be read sensibly rather than
literally and interpretations which lead to an unreasonable or
absurd result are to be avoided. International Flavors &
Fragrances, Inc. v. Div. of Taxation, 7 N.J. Tax 652, 654-55 (App.
Div. 1985), affirmed 102 N.J. 210 (1986). It is the purpose and
reason for the legislation which controls over a literal
interpretation of a statute. Henry v. Shopper's World, 200 N.J.
Super. 14, 18 (App. Div. 1985).

The office of county prosecutor is an entity. McQuillin
Municipal Corporations, 12.29, p. 194 (3rd Ed. 1990). It is the
office of county prosecutor that is the "public employer." The
purpose of the Local Government Ethics Law is, in part, to require
"local government officers" to comply with a code of ethics and to
require these officers to publicly disclose their financial
interests. N.J.S.A. 40A:9-22.1(e). To a large extent "local
government officers" are those individuals in local government who
exercise a high level of authority and independent judgment which
directly affects the policy and purposes of the agency and who have
detailed knowledge of confidential labor relations matters. The
county prosecutor is in fact the individual who exercises the
ultimate authority and independent judgment for the office of
county prosecutor and who determines labor relations policy for the
office. Accordingly, the county prosecutor is necessarily a
"managerial executive" and "confidential employee" for purposes of
the Local Government Ethics Law.

Further, the First Assistant Prosecutor and the Chief of
Detectives in the Office of County Prosecutor may also be
"managerial executives" or "confidential employees" and accordingly
"local government officers." However, this determination is
necessarily an individualized determination which requires an
analysis of the individual's duties, the individual's exercise of
independent judgment to effectuate the policies of the office of
county prosecutor, and the individual's access to confidential
labor relations information. (See Attorney General Opinion No. 91-0093
for a detailed examination of the scope of the individualized
determination).

For the foregoing reasons you are advised that the office
of county prosecutor is a "local government agency" for purposes of
the Local Government Ethics Law, N.J.S.A. 40A:9-22.1 et seq., and
that a county prosecutor is a "local government officer" for
purposes of the Law and, therefore, must file a financial
disclosure statement.

Very truly yours,

ROBERT J. DEL TUFO

By:___________________________________
JOHN J. CHERNOSKI
Senior Deputy Attorney General

JJC:sm

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