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Re: 91-0136: Whether the Governing Body of a
Municipality or County may adopt a Local
Code of Ethics

Dear Deputy Commissioner Skokowski:

You have requested advice as to whether the governing
body of a municipality or county may adopt a local code of ethics.
For the below stated reasons you are advised that with the
enactment of the Local Government Ethics Law, N.J.S.A. 40A:9-22.1
et seq., any local code of ethics governing persons who are "local
government officers and employees," as defined by the Law, must be
adopted by the municipal or county board of ethics in accordance
with the procedures provided by 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 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. In the absence of action by the
local government to establish a local ethics board, the Code of
Ethics is enforced by the Local Finance Board in the Department of
Community Affairs. N.J.S.A. 40A:9-22.4. Further, the Local
Finance Board exercises appellate jurisdiction over the decisions
of the local ethics boards. N.J.S.A. 40A:9-22.18, N.J.S.A. 40A:9-22.24.

A local government may elect to administer and enforce
the Code of Ethics established by the Local Government Ethics Law.
N.J.S.A. 40A:9-22.13, N.J.S.A. 40A:9-22.19. Specifically, the
local government may establish a local ethics board. N.J.S.A.
40A:9-22.13(a), N.J.S.A. 40A:9-22.19(a). A local ethics board
consists of six members. Ibid. Two of the members must be public
members. Ibid. No more than three members may be of the same
political party. Ibid. 90 days after the establishment of the
local ethics board, the board is required to promulgate by
resolution a code of ethics for all local government officers and
employees serving the local government. N.J.S.A. 40A:9-22.15,
N.J.S.A. 40A:9-22.21. The ethics code promulgated by the local
ethics board shall either be identical to the State code or more
restrictive. Ibid. Within 30 days of the promulgation of the local
code, the local ethics board is required to conduct a public
hearing. Ibid. As a result of the hearing the local ethics board
may amend or supplement the local code as it deems necessary.
Ibid. If the local code is not identical to the State code, the
local code is required to be submitted to the Local Finance Board
for approval. Ibid. The Local Finance Board is required to
approve or disapprove the local code within 60 days of its receipt
and if it fails to act within the time prescribed the local code is
deemed approved. Ibid. The local code takes effect 60 days after
approval of the Local Finance Board. Ibid. If the local code is
identical to the State code, the local code takes effect 10 days
after the public hearing. Ibid. The local ethics board has the
responsibility to review complaints of alleged violations of the
local code of ethics, to render advisory opinions, and to enforce
the local code. N.J.S.A. 40A:9-22.16. N.J.S.A. 40A:9-22.22.
Appeals of the decisions of the local ethics board are to the Local
Finance Board. N.J.S.A. 40A:9-22.18, N.J.S.A. 40A:9-22.24.

Thus, the Local Government Ethics Law establishes a
comprehensive scheme for the administration and enforcement of an
ethics code by the Local Finance Board or by a local ethics board.
The only responsibility of the local government's governing body is
to establish a local ethics board, to appoint its members, to
provide the board with necessary space, equip-ment, supplies, and
funding. N.J.S.A. 40A:9-22.14, N.J.S.A. 40A:9-22.20. In contrast,
the responsibility for the promulgation of the local ethics code
and its administration and enforcement rests with the local ethics
board. In these circumstances, a local governing body is not
responsible or involved in the promulgation of a local code of
ethics.

Related questions are whether a local governing body may
continue to administer and enforce a local code of ethics which
predates the enactment of a Local Government Ethics Law or whether
a governing body may establish a local code of ethics in a manner
not prescribed by the State law. The resolution of these dual
questions is dependent on whether the Local Government Ethics Law
has preempted the field of local ethics. The doctrine of preemp-
tion is based on the proposition that a local government unit may
not contradict a policy established by the Legislature. Overlook
Terrace Management v. Rent Control Bd. of West New York, 71 N.J.
451, 461 (1976). The threshold question is whether the subject
matter regulated by the local ordinance is the same as that
regulated by the State scheme. Ibid. If the answer is in the
affirmative the following inquiry is relevant.

1. Does the ordinance conflict with
state law, either because of conflicting
policies or operational effect, that is, does
the ordinance forbid what the Legislature has
permitted?

2. Was the state law intended expressly
or impliedly to be exclusive in the field?

3. Does the subject matter reflect a
need for uniformity?

4. Is the state scheme so pervasive or
comprehensive that it precludes coexistence of
municipal regulation?

5. Does the ordinance stand as an
obstacle to the accomplishment and execution
of the full purposes and objectives of the
Legislature? [Ibid.]

Concerning the first issue, the inquiry obviously
requires an examination of the specific ordinance in question.
However, a local code established outside the mechanism and
safeguards provided by the Local Government Ethics Law may result
in conflict with State policy. The second inquiry is whether the
State law was intended expressly or impliedly to be exclusive in
the field. The purpose of the Local Government Ethics Law is in
part to ensure that standards of ethical conduct and financial
disclosure requirements for local government officers and employees
be clear, consistent, uniform in their application, and enforceable
on a statewide basis. N.J.S.A. 40A:9-22.1(e). Thus, the intent of
the State Ethics Law is, expressly and impliedly, to be exclusive
in the field of regulating the ethical conduct of local government
officers and employees. Flowing from this determination is the
need for the uniform application of the law. Ibid. Further, the
State scheme provides the sole means to regulate the ethical
conduct of local government officers and employees, so that it
would preclude the coexistence of independent local regulation.
Finally, a local ordinance which also regulates the ethical conduct
of its officers and employees outside the State scheme would stand
as an obstacle to the purpose and objectives of the Legislature to
provide an ethical code applicable throughout the State.

To the extent that the Legislature permits a local ethics
board to impose more restrictive standards, the Local Finance Board
must be directly involved in approving the more restrictive scheme
and in reviewing, on appeal, the decision of a local ethics board
that an individual has violated the local code of ethics. Thus,
the State law provides for the establishment of a local ethics
code, but with the State exercising oversight of the creation and
administration of any established local ethics code. Accordingly,
the Local Government Ethics Law has preempted the field of local
ethics as it concerns the conduct of local government officers and
employees and a local government may not enact or enforce an
ethical code applicable to local government officers and employees
in a manner inconsistent with the State law.

It should be noted that the Local Government Ethics Law
does not preempt the jurisdiction of the various State professional
licensing authorities, e.g. the Supreme Court (Attorneys), State
Board of Architects, State Board of Professional Engineers, from
regulating the ethical conduct of its licensees. The jurisdiction
of these licensing authorities is a furtherance of the State's
police power to protect the public welfare and to ensure that the
licensee comply with certain professional standards. New Jersey
Chapter, American Institute of Planners v. N.J. State Bd. of
Professional Planners, 48 N.J. 581 (1967), cert. denied 389 U.S. 8,
88 S.Ct. 70, 19 L.Ed.2d 8 (1967). The converse is also true. The
existence of a regulatory authority which regulates the conduct of
its licensees, who may also be "local government employees or
officers" does not preempt the Local Government Ethics Law. In re
Mattera, 34 N.J. 259, 266 (1961) ("A single act of misconduct may
offend the public interest in a number of areas and call for an
appropriate remedy as to each hurt."); Joint Legislative Committee
on Ethical Standards v. Perkins, 179 N.J. Super. 352 (App Div.
1981), certif. denied 91 N.J. 195 (1982), and Wood v. Dept. of
Community Affairs, 243 N.J. Super. 187 (App. Div. 1990) (legis-
lator-lawyer subject to the State Conflicts of Interest Law);
Pillsbury v. Freeholders of Cty. of Monmouth, 133 N.J. Super. 526,
535 (Law Div. 1975), affirmed 140 N.J. Super. 410 (App. Div. 1976)
(attorney who is a public officer subject to the laws affecting
public officers.)
Further, the Local Government Ethics Law does not apply
to every person who serves in local government. Excluded from the
scope of the law are local government agencies which are purely
advisory in nature. N.J.S.A. 40A:9-22.3(e). Thus, an individual
who serves on an excluded local agency would not be subject to the
State law. Accordingly, as the State has not preempted the field
as it concerns the ethical conduct of these individuals, the local
government's governing body may estab-lish or continue a local code
governing the ethical conduct of persons who serve on a local
agency which is purely advisory in nature.

For the above stated reasons, you are advised that a
local government's governing body may not adopt a local code of
ethics applicable to persons who are "local government officers and
employees." Rather, any local ethics code applicable to "local
government officers and employees" must be promulgated by the local
ethics board established pursuant to the Local Government Ethics
Law in the manner provided by the Law.

Very truly yours,

ROBERT J. DEL TUFO
ATTORNEY GENERAL

 

By:___________________________________
John J. Chernoski
Senior Deputy Attorney General

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