| November 1, 1991
Barry Skokowski, Sr.
Deputy Commissioner
Department of Community Affairs
CN 800
Trenton, New Jersey 08625-0800
Re: 91-0135:
Scope of Local Government Officers
and Employees Prohibited From Representing
a Party Before a Local Government Agency,
Pursuant to the Local Government Ethics Law.
Dear Deputy Commissioner
Skokowski:
You have requested
advice as to the scope of local
government officers and employees prohibited from representing a
person or party, other than the local government, before any agency
in the local government in which he serves, as required by the
Local Government Ethics Law, N.J.S.A. 40A:9-22.5(h). Specifically
the advice sought is whether the prohibition of representation
extends only to members of the legal profession or whether it also
extends to other professionals such as a professional engineer or
an architect. For the below states reasons you are advised that
the prohibition of representation is not restricted to only members
of the legal profession. Rather, it extends to local government
officers and employees who stand in the place of another regarding
any cause, proceeding, application, or another matter pending
before any agency in the local government the officer or employee
serves.
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. 40:9-22.4. 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. The local board establishes 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. Further, a
local government officer or employee may request from the Local
Finance Board an advisory opinion as to whether certain conduct
would be a violation of the State Ethics Code. N.J.S.A. 40A:9-22.8.
Also, a municipal or county ethics board may render advisory
opinions for persons subject to its jurisdiction. N.J.S.A. 40A:9-22.17,
N.J.S.A. 40A:9-22.23.
One of the provisions
of the statutory code of ethics
provides:
No local
government officer or employee or
business organization in which he has an
interest shall represent any person or party
other than the local government in connection
with any cause, proceeding, application or
other matter pending before any agency in the
local government in which he serves. This
provision shall not be deemed to prohibit one
local government employee from representing
another local government employee where the
local government agency is the employer and
the representation is within the context of
official labor union or similar
representational responsibilities; [N.J.S.A.
40A:9-22.5(h)].
Thus, the Local
Government Ethics Law prohibits person subject to
the law from representing any person or party, other than the local
government, in any matter before any agency in the local government
he serves. An exception is provided to allow local government
employees to represent other local government employees in labor
relations matters. Ibid. Further, a local government officer or
employee is not prohibited from representing himself in a matter
before a local government agency in which he has a direct and
personal interest. N.J.S.A. 40A:9-22.5(k). Additionally, an
elected "local government officer" is not prohibited from
making an
inquiry for information on behalf of a constituent, as long as no
fee, reward, or other thing of value is promised to, given to, or
accepted by the officer or a member of his/her immediate family,
in
return for the inquiry. N.J.S.A. 40A:9-22.5(j).
The question
is the scope of the term "representation"
found in N.J.S.A. 40A:9-22.5(h). The term is undefined, but it is
commonly understood that to "represent" a person is to
stand in his
place. Black Law Dictionary 6th, Ed., p. 1301 (1990). It has been
suggested that only attorneys represent" parties in proceeding
before local agencies and that other professionals, e.g. engineers
and architects, do not "represent" parties before local
agencies.
This position is supported to some extent by the decision of Slimm
v. Yates, 236 N.J. Super. 558 (Chan. Div. 1989). In Slimm the
Court considered the propriety of a real estate agent appearing
before a local planning board on a subdivision application. The
Court stated that generally only lawyers are permitted to conduct
proceedings before an administrative agency. Slimm v. Yates,
supra, 236 N.J. Super. at 562. Accordingly, the Court concluded
that the real estate broker' s appearance before a local planning
board constituted the unlawful practice of law. Slimm v. Yates,
supra, N.J. Super. at 564. See also Committee on Unauthorized
Practice of Law, Opinion No. 13, 98 N.J.L.J. 17 (January 9, 1975),
(Appearance of non attorneys before Boards of Adjustment), and
Opinion No. 16, 98 N.J.L.J. 553 (June 20, 1975), (Appearance of
non
attorneys' before Planning Boards). The role of other
professionals in an agency proceedings is that of a witness for
the
applicant. Committee On Unauthorized Practice of Law, Opinion No.
21, 100 N.J.L.J. 1181 (December 22, 1977).
However, the
prohibition in the Local Government Ethics
Law is broader than representation in proceedings before local
government agencies. Also, prohibited are representation in any
cause, application, or other matter pending before any agency in
the local government. N.J.S.A. 40A:9-22.5(h). The statute does
not merely prohibit representation in legal proceedings in which
an
attorney would be necessary to provide such representation. Indeed,
it is not unusual for professionals, other than attorneys, to
submit applications and documents to local government agencies on
behalf of another for planning board approval, for zoning approval,
for a construction permit, or for a variety of other locally
required approvals. An attorney is not necessary to submit these
types of applications. Committee on Unauthorized Practice of Law,
Opinion No. 16, supra. For instance, it is common for a lay person
to engage a professional, other than an attorney, to complete and
submit the application and associated construction plans necessary
to obtain a construction permit or a certificate of occupancy. The
Uniform Construction Code Act recognizes that someone other than
the building owner may submit an application for a construction
permit, N.J.S.A. 52:27D-130 (agent, engineer, or architect).
Further, it may reasonably be expected that if there are technical
problems or questions associated with the application the owner's
agent, engineer, or architect will deal directly with the municipal
construction official to resolve the problem or question.
Undoubtedly, there are other examples where a professional, other
than an attorney, will act on behalf of the applicant to submit
an
application to a local government agency, to resolve any questions
or difficulties associated with the application, or to represent
an
individual in his dealings with local government officials.
One of the specific
purposes of the Local Government
Ethics Law is to avoid perceived conflicts between the local
government officer's or employee's private interests and his public
duties. N.J.S.A. 40A:9-22.2(c). The prohibition of N.J.S.A.
40A:9-22.5(h) are related directly to this legislative purpose.
To
conclude that the prohibition of "representation" by local
government officers or employees is restricted to only attorneys
is
to construe the Act in a manner not contemplated by the
Legislature. Perceived conflicts of interest are not limited to
local government officers and employees who are attorneys. Indeed,
this office in interpreting the State Conflict of Interests Law,
N.J.S.A. 52:13D-12 et seq., has previously advised the State
Executive Commission on Ethical Standards that the prohibition of
representation of the casino industry by certain former State
employees extended to accountants and the accounting firms that
employed the accountants. See Attorney General Opinion, M81-4815
(February 16, 1982) (Attached.) The opinion concluded that the
serving of casino interests by an accounting firm constituted
representation. Ibid. Similarly, within the context of the Local
Government Ethics Law "representation" also includes any
circumstances where an individual or a business organization in
which he has an interest, stands in the place of another or acts
in
a representative capacity.
For the above
stated reasons, you are advised that any
local government officer or employee or business organization in
which he has an interest, is prohibited from representing a person
or party, other than the local government or his own personal
interests, in connection with any cause, proceeding, application
or
other matter pending before any agency in the local government
agency. This restriction applies whether the local government
officer or employee is an attorney or not. Further, within the
context of the Local Government Ethics Law "representation"
is
intended to include circumstances in which the local government
officer or employee stands in the place of another regarding any
cause, proceeding, application, or other matter pending before a
local agency in the local government he serves. It should be noted
that the determination as to whether a person is in violation of
N.J.S.A. 40A:9-22.5(h) is a fact sensitive determination. Further,
the Local Government Ethics Law provides a mechanism by which a
local government officer or employee may seek an advisory opinion
from the Local Finance Board, or if appropriate from the municipal
or county ethics board, as to whether certain conduct would be in
violation of the State Ethics Code. Individuals should be
encouraged to seek an advisory opinion if they have any doubts as
to whether their proposed activity violates N.J.S.A. 40A:9-22.5(h).
Very
truly yours,
ROBERT
J. DEL TUFO
ATTORNEY GENERAL
By:___________________________________
John J. Chernoski
Senior Deputy Attorney General
JJC/dey
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