| November 1, 1991
Barry Skokowski, Sr.
Deputy Commissioner
Department of Community Affairs
CN 800
Trenton, New Jersey 08625-0800
Re: 91-0132:
Board of Recreation Commissioners
as "Local Government Officers" pursuant to
the Local Government Ethics Law
Dear Deputy Commissioner
Skokowski:
You have requested
advice as to whether the members of a
Board of Recreation Commissioners, established pursuant to N.J.S.A.
40:12-1 et seq., are "local government officers" pursuant
to the
Local Government Ethics Law, N.J.S.A. 40A:9-22.1 et seq. For the
below stated reasons you are advised that the members of a Board
of
Recreation Commissioners are "local government officers"
pursuant
to the Local Government Ethics Law and therefore subject to its
terms, Particularly the requirement of filing a financial
disclosure statement.
In Attorney General
Opinion No. 91-0093 (September 20,
1991) we provided a general overview of the legislative history
and
purpose of the Local Government Ethics Law, the general scope of
local government agencies and local government officials that were
subject to the new Law. Essentially, the purpose of the Law is to
provide a State-wide ethical code applicable to persons who serve
in local government and to require "local government officers"
to
file annual financial disclosure statements. Generally, all local
government agencies, except purely advisory bodies and school
boards, are within the Scope of the Law. N.J.S.A. 40A:9-22.3(e).
Further, the term "local government officer" was intended,
in part,
to identify those individuals serving 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
a detailed knowledge of the agency's confidential labor relations
matters. N.J.S.A. 40A:9-22.3(g), see also Attorney General Opinion
No. 91-0093 (September 20, 1991).
A Board of Recreation
Commissioners is established
pursuant to N.J.S.A. 40:12-1 et seq. The Board may be established
by either a municipality or county. N.J.S.A. 40:12-1. The members
of the Board are appointed by the municipal mayor or chief
executive officer or the county freeholders. Ibid. The Board is
a part of the municipality or county which created it. Board of
Recreation of Rutherford v. Rutherford, 166 N.J. Super. 476, 482
(App. Div. 1979). The Board has broad authority regarding
municipal or county places of recreation. This authority includes
the powers to acquire property for recreational use,
N.J.S.A 40:12-3; to control the use of places of recreation,
N.J.S.A. 40:12-6; to establish rules for the use of places of recreation,
Ibid.; to regulate the conduct of persons who use places of recreation,
Ibid.; and to appoint and fix the salaries of a recreation
director, custodians, supervisors, and assistants. Ibid. While
the Board exercises considerable powers, it does not operate or
act
independently of the municipality or the county. Rather, the Board
essentially acts as a department of the municipality or county.
Board of Recreation Commissioners of Rutherford v. Rutherford, 166
N.J. Super. at 481. Thus, a Board of Recreation Commissioners is
a
"local government agency" pursuant 'to the Local Government
-
Ethics Law. N.J.S.A. 40A:9-22.3(e).
Having concluded
that the Board is a "local government
agency", the next inquiry is whether the Board members are
"local
government officers." Included as "local government officers"
are
1) elected officials; 2) members of local 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). The
members of
the Board of Recreation Commissioners are not within 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
which 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 "local government officer" was attempting to
adopt an
approach that would identify persons of a high level with policy
making responsibilities. To a large extent the determination of
whether an individual is a "managerial executive" or "confidential
employee" is often very individualized. However, in the opinion
we
found that certain persons serving in local government were
necessarily "managerial executives" or "confidential
employees",
because their statutory duties mandated that they exercise
significant policy making responsibilities. These individuals
included among others, a county prosecutor, a county sheriff, a
municipal attorney, and the members of Board of Trustees of a
county college, a municipal library, and a county regional library.
In examining the statutory duties of a Board of Recreation
Commissioners discussed above, the Board exercise significant
policy making responsibilities in the specialized area of the use
and control of the recreation lands of the municipality or county
and it is also directly involved in the labor relations matters
as
it concerns recreation personnel. Accordingly, the members of the
Board of Recreation Commissioners are necessarily "managerial
executives" and "confidential employees" for purposes
of the Local
Government Ethics Law.
It should be
noted that it is common for a municipality
or county to establish a committee or other body to advise the
governing body on recreational issues. These bodies may be
referred to as Recreation Commissions or Committees. As to whether
the members of these various bodies are "local government officers"
requires an individualized legal and factual determination detailed
in Attorney General Opinion No. 91-0093 (September 20, 1991). The
instant opinion is limited to the Boards of Recreation
Commissioners established pursuant to N.J.S.A. 40:12-1 et seq. and
it is not intended to address the variety of commissions,
committees, and other bodies created by a local governing body to
address recreational issues.
For the foregoing
reasons you are advised that a Board of
Recreation Commissioners, established pursuant to N.J.S.A. 40:12-1
et seq., is a "local government agency" for purposes of
the Local
Government Ethics Law, N.J.S.A. 40A:9-22.1 et seq., that the
members of the Board are "local government officers" for
purposes
of the Law and, therefore, must file a financial disclosure
statement.
Very
truly yours,
ROBERT
J. DEL TUFO
ATTORNEY GENERAL
By:___________________________________
John J. Chernoski
Senior Deputy Attorney General
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