| September 20,
1991
Barry Skokowski, Sr.
Deputy Commissioner
Department of Community Affairs
CN 800
Trenton, New Jersey 08625-0800
Re: 91-0096:
Whether Municipal Court Judges
and Municipal Court personnel are subject
to the Local Government Ethics Law,
N.J.S.A. 40A:9-22.1 et seq.
Dear Deputy Commissioner
Skokowski:
You have requested
advice as to whether municipal court
judges and municipal court employees are subject to the Local
Government Ethics Law, N.J.S.A. 40A:9-22.1 et seq. For the reason
expressed below you are advised that municipal court judges and
municipal court employees are not subject to 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, 1991.
L. 1991, c. 29, 27. The purpose of the Act is to provide a
Statewide method for 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 sources of income, certain
business interests, and real estate holdings in New Jersey. Ibid.
(Initially financial disclosure statements are required to be filed
by August 19, 1991 and thereafter annually by April 30. Ibid.) To
be subject to the requirements 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 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. 194, 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 contrast to
the term "local government officer" is the
term "local government employee." This latter term is
defined as
"any person, whether compensated or not, whether part-time
or
full-time, employed by or serving on a local government agency who
is
not a local government officer but shall not mean any employee of
a school district." N.J.S.A. 40A:9-22.3(f).
The Act applies
to "local government officers" and "local
government employees" of a "local government agency."
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 initial question is whether a municipal court judge
and municipal court employee serve in a "local government agency."
The Legislature
is authorized to establish courts of
limited jurisdiction. N.J. Const. (1947), Art. VI, 1 111. The
Legislature has established municipal courts. N.J.S.A. 2A:8-1 et
seq. L. 1984, c. 264. With the enactment of this legislative
scheme then existing police, magistrate, and recorder's courts were
constituted and established as municipal courts. N.J.S.A. 2A:8-2.
Municipal court judges are appointed for a term of three years by
the municipal governing body. N.J.S.A. 2A:8-5. The judges of
municipal courts whose jurisdiction extends to more than one
municipality are nominated by the Governor and approved with the
advice and consent of the Senate. N.J. Const. (1947), Art. VI, 6,
111. The territorial jurisdiction of the municipal courts are
limited to the territorial limits of the municipality or in the
case of municipal court for two or more municipalities to the
territory embraced by the municipalities. N.J.S.A. 2A:8-20. The
governing body of the municipality or municipalities, as the case
may be, provide for a court clerk and other necessary clerical
personnel or other assistants and provide for their compensation.
N.J.S.A. 2A:8-13. Municipal court judges have been treated as
members of the judiciary and a part of the State's justice system.
Knight v. Margate, 86 N.J. 374, 385 (1981). Municipal court
judges, clerks of municipal courts, and municipal court employees
are bound by the Rules of the Supreme Court and may be removed by
the Supreme Court for violations of the Rules. Hughes v. Lipscher,
906 F.2d 961, 965 (3rd Cir. 1990). However, municipal court
judges, and the court's employees, are generally considered
municipal, rather than state, officers. 9A McQuillin, Municipal
Corporations, 27.01 p. 256 (3rd ed. 1986). In this regard,
municipal court judges are not part of the State's judicial
retirement system. N.J.S.A. 43:6A-5. Also, a predecessor to the
municipal court, a police court, was deemed a municipal office
rather than a state office. Perry v. Bianchi, 96 N.J.L. 113, 116
(Supreme Ct. 1921). The municipal court clerk and other municipal
court personnel may be included with other municipal employees in
the municipal employees bargaining unit established pursuant to
the
Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. Tp. of
Mine Hill, 17 NJPER 315 22139 (1991).
Thus, municipal
court judges and personnel are generally
considered local government officers and employees. However, as
they are part of the State's judicial system they are subject to
the supervision of the Supreme Court. Notwithstanding the fact
that municipal court judges and municipal court personnel are
subject to the control of the Supreme Court, the Court in the
absence of its own action, has accepted and adopted statutory
schemes touching upon the administration of the courts and
statutory schemes dealing with public employees whose duties are
intimately related to the judicial system. Passaic Cty. Probation
Officers' Ass'n v. Cty of Passaic, 73 N.J. 247, 255 (1977).
Therefore, the focus of this inquiry is whether the Legislature
intended to apply the Local Government Ethics Law to municipal
court judges and municipal court personnel and whether the Supreme
Court has previously taken its own action in this area.
The purpose of
the Local Government Ethics Law is, in
part, to ensure the public that local government officers and
employees are faithfully performing their duties and to establish
a method by which the ethical conduct of these persons can be
measured. N.J.S.A. 40A:9-22.1(d) and (e). Previously the
Legislature enacted a State Conflict of Interest Law, N.J.S.A.
52:27D-12 et seq., L. 1971, c. 182, which parallels the Local
Government Ethics Law in many respects. One part of this statutory
scheme restricts certain State executive and legislative officials
and full-time members of the judiciary and certain municipal court
judges from engaging in certain activity with the casino industry.
N.J.S.A. 52:13D-17.2. The Supreme Court in Knight v. Margate,
supra in upholding the restriction on members of the judiciary,
including municipal court judges, noted that it had the ultimate
authority to decide whether to accept or reject the legislative
enactment as it concerned members of the judiciary, including
municipal court judges.
The significance
of N.J.S.A. 52:13D-17.2, and the Court's
response thereto, is that the Legislature specifically included
the
judiciary within the statute's ambit. In contrast the Local
Government Ethics Law does not specifically include within its
ambit local government officers and employees who are members of
the State's judiciary. Notwithstanding the enactment of the Local
Government Ethics Law, these persons are and have been subject to
the Supreme Court's Code of Judicial Conduct and the Rules of
Court. This Code and the Rules of Court serve many of the purposes
of the Local Government Ethics Law. A municipal court judge is
prohibited from practicing before an agency of the municipality
he
serves. R. 1:15-1(b). Further, the Code of Judicial Conduct
generally requires judges, including municipal judges, to uphold
the integrity of the judiciary, to avoid impropriety or the
appearance thereof, and to perform his duties impartially, which
requires him to disqualify himself from proceedings if he or his
immediate family have a personal or financial interest in a matter.
Employees of the municipal court are also subject to the Supreme
Court's Rules. R. 1:1-1. Generally, they are prohibited from
holding or seeking public office, engaging in political activity,
and holding other employment without the Court's permission. R.
1:17-1, R. 1:17-3, R. 1:17-4. A municipal court judge is required
to ensure that court personnel observe the same standards of
fidelity and diligence that apply to him. Pressler, Rules Governing
the Courts, (1991), Commentary to Canon 3, Code of Judicial
Conduct, p. 277. Also, municipal court personnel are required to
comply with the various administrative directives of the Supreme
Court. Hughes v. Lipscher, supra 906 F.2d at 965-66. The
directives may include regulation of the personal activity of court
personnel. Ibid. For a violation of the Rule Code of Judicial
Conduct, or administrative directives, a municipal court judge and
municipal court personnel may be removed from office or
disciplined. Ibid.
In contrast,
the Code of Ethics established by the Local
Government Ethics Law also broadly requires local government
officers and employees to maintain integrity, to avoid impropriety,
and limits their appearance before municipal agencies. N.J.S.A.
40A:9-22.5(a) to (h). A violation of the State's Code of Ethics
may result in the disciplining or removal of the officer or the
employee. N.J.S.A. 40A:9-22.11.
The only substantial
difference between the Code of
Judicial Conduct and the requirements of the Local Government
Ethics Law is the financial disclosure requirements imposed upon
"local government officers" by the Ethics Law. The Supreme
Court
has determined that the Code of Judicial Conduct does not require
a judge to make a financial disclosure. Pressler, supra, Commentary
to Canon 5, Code of Judicial Conduct, p. 282. In addition, in
reviewing the definition of "local government officer"
contained in
the Local Government Ethics Law, we have determined that a
municipal court judge and court personnel are not "local government
officers." In deciding whether these individuals are "managerial
executives" or "confidential employees," and thus
are "local
government officers," would require an analysis into the inner
workings of the administration of the judicial branch of
government. See, Attorney General Opinion No. 91-0093. This
analysis may be an unwarranted inference in the affairs of the
judiciary. Further, a municipal ethics board may enact its own
local code of ethics. N.J.S.A. 40A:9-22.19. Subjecting members of
the judicial branch of government to potentially differing ethical
requirements, is contrary to the uniform regulation that the
Supreme Court applies to members of the judicial branch.
In view of the
Supreme Court's active regulation of the
ethical conduct of municipal court judges and employees and in the
absence of a specific legislative determination to include these
members of the State's judicial system within the scope of the
Local Government Ethics Law, you are advised that the Law is not
intended to apply to municipal court judges and municipal court
personnel. This conclusion recognizes the principles of comity
among the various branches of government and that the ethical
conduct of members of the judicial branch of government, whether
state or local officials, is subject to the regulation of the
Supreme Court.
However, it should
be noted that in some municipalities,
certain individuals, with the permission of the Supreme Court, may
serve both the municipal court and the municipality as dual office
holders, e.g. a full-time municipal secretary is assigned part-time
to work in the municipal court. These individuals are subject to
regulation by the Supreme Court and the Local Government Ethics
Law, as appropriate, regarding their respective positions. Thus,
the fact that a municipal employee is also a part-time employee
of
the municipal court will not exempt the employee from otherwise
complying with the Law.
For the above
stated reasons you are advised that
municipal court judges and municipal court employees are not
subject to the Local Government Ethics Law. Rather, the ethical
conduct of these individuals are subject to regulation by the
Supreme Court.
Very
truly yours,
ROBERT
J. DEL TUFO
By:___________________________________
John J. Chernoski
Senior Deputy Attorney General
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