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Re: 91-0103: May the Local Finance Board discuss
and render advisory opinions requested pursuant
to the Local Government Ethics Law in Executive Session

Dear Deputy Commissioner Skokowski:

You have requested advice as to whether the Local Finance Board may discuss and render advisory opinions requested pursuant to the Local Government Ethics Law, N.J.S.A. 40A:9-22.1 et seq., in the Board's Executive Session rather than in Public Session. For the below reasons you are advised that the Local Finance Board may discuss and render advisory opinions requested pursuant to the Local Government Ethics Law in Executive Session.

The Local Government Ethics Law (Act) was enacted on February 20, 1991 and effective 90 days thereafter. 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 State's Local Finance Board.* N.J.S.A. 40A:9-22.4. As an alternative to enforcement by the Local Finance Board, a county or municipality may establish a county or municipal ethics board to enforce the Code of Ethics.
The Local Finance Board consists of eight members. N.J.S.A. 52:27D-18.1. The Director of the Division of Local Government Services is the chairman and the other members are appointed by the Governor for a term of five years. Ibid. The Board is required to meet regularly. N.J.S.A. 52:27BB-13.
N.J.S.A. 40A:9-22.13, N.J.S.A. 40A:9-22.19. A county or municipality may also establish a local code of ethics. 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.
A local government officer or employee, not governed by a municipal or county code of ethics may request from the Local Finance Board an advisory opinion as to whether any proposed con-duct or activity would constitute a violation of the Act's Code of Ethics. N.J.S.A. 40A:9-22.8. The Act provides that,
[a]dvisory opinions of the board shall not be made public, except when the board by the vote of two-thirds of all of its members directs that the opinion be made public. Public advisory opinions shall not disclose the name of the local government officer or employee unless the board in directing that the opinion be made public so determines. [Ibid.]
Thus, the Act provides that advisory opinions are not to be disclosed to the public unless the Board determines by a two-third vote to make the opinion public. Further, even if the opinion is to be made public, the identity of the person in question is not to be identified unless the identification of the person is directed by the Local Finance Board.
The meetings of the Local Finance Board are subject to the requirements of the Open Public Meetings Act, N.J.S.A. 10:4-6 et seg. See N.J.S.A. 10:4-8(a). The general rule is that meeting of public bodies should be opened to the public, except in
certain limited circumstances. N.J.S.A. 10:4-12. One of the exceptions to the general rule relate to "any material the disclosure of which constitutes an unwarranted invasion of individual privacy ... including but not limited to information relative to the individual's personal and family circumstances ... unless the individual concerned shall request in writing that the same be disclosed publicly." N.J.S.A. 10:4-12(3).

Previously the Attorney General examined this exception as it pertained to the rendering of advisory opinions by the Executive Commission on Ethics Standards. Attorney General F.O. 1977, No. 2. The Executive Commission is responsible for the administration and enforcement of a State Code of Ethics for State executive officials and employees. N.J.S.A. 52:13D-21. The Executive Commission is authorized "to render advisory opinions as to whether a given set of facts and circumstances would, in its opinion, constitute a violation (of the State Code of Ethics)." N.J.S.A. 52:13D-21(g). The Attorney General concluded that it is only when the individual's interests to privacy predominate over the public's interests to full disclosure, may the discussion of the advisory
opinions to made in closed session. Attorney General F.O. No.2. The Attorney General further concluded that the balancing of the individual's interests and the public's interests required a case-by-case analysis. Ibid.
However, in contrast to the State Ethics Law, the Legislature in enacting the Local Government Ethics Law has made this balancing determination. Specifically, the advisory opinions issued by the Local Finance Board are not to be publicly disclosed unless affirmatively determined by two-thirds of the members of the Local Finance Board. N.J.S.A. 40A:9-22.8. The State Ethics Law does not contain a similar provision. See N.J.S.A. 52:13D-21(g). Thus, as the advisory opinions rendered by the Local Finance Board are not to be disclosed, except in certain limited circumstances, it necessarily follows that the discussions of these advisory opinions are not to be conducted in open public session. To hold otherwise would lead to the result of the advisory opinions not being disclosed, while the Board's discussions of the advisory opinion would be conducted in open session. This situation would lead to the anomalous result of advisory opinions becoming public, despite the legislative determination that these advisory opinions are not subject to public disclosure. However, statutes will not be construed to lead to an absurd result. Davis v. Heil, 132 N.J. Su-per. 283, 293 (App. Div. 1975), affirmed 68 N.J. 423 (1975).
Further, even if the Local Finance Board elects to make public an advisory opinion, the Board's discussions and deliberative processes concerning the opinion need not necessarily be subject to public disclosure. The Board only renders an advisory o-pinion after it has discussed the matter. While a majority of the Board may render an advisory opinion, the opinion only becomes public upon a two-thirds vote of the Board's members. N.J.S.A. 40A:9-22.8. Also, the identity of the requestor is not be disclosed unless the Board in its decision to make an advisory opinion public determines also to reveal the identity of the requestor. Ibid. In these circumstances, the determination as to whether an advisory opinion shall be public occurs only after the Board has discussed the facts surrounding the opinion request, render an advisory opinion, made a determination that the opinion be made public, and made a determination to reveal the identity of the requestor. It follows that the events that occur prior to the public disclosure of the advisory opinion and identity of the requestor, must be con-ducted in executive session. To hold otherwise, would render the legislative intent in enacting the provisions of N.J.S.A. 40A:9-22.8 meaningless.

Therefore, for the foregoing reasons you are advised that the Local Finance Board may discuss and render advisory opinions requested pursuant to the Local Government Ethics Law, N.J.S.A. 40A:9-22.1 et seq., in Executive Session. This determination is consistent with the legislative intent that advisory opinions rendered pursuant to N.J.S.A. 40A:9-22.8 are generally not to be publicly disclosed.
Very truly yours,

ROBERT J. DEL TUFO ATTORNEY GENERAL

By
John J. Chernoski
Senior Deputy Attorney General

 

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