| June 4, 1992
Barry Skokowski, Sr.
Deputy Commissioner
Department of Community Affairs
CN 800
Trenton, New Jersey 08625
Re: 92-0070: Members of a Municipal Local
Assistance Board as "Local Government Officers."
Dear Deputy Commissioner
Skokowski:
You have requested
advice as to whether the members of a
municipal local assistance board, organized in accordance with
N.J.S.A. 44:8-114 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 municipal local assistance board are not per se "local government
officers." Rather, they are "local government employees"
pursuant
to the Local Government Ethics Law and are subject to those
provisions of the Law applicable to "local government employees."
The purpose of
the Law is to provide a State-wide ethical
code applicable to persons who serve in local govern-ment and to
require "local government officers" to file annual financial
disclosure statements. N.J.S.A. 40A:9-22.1. 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).
In the absence of action by the county or municipal governing body
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.
The General Public
Assistance Law requires every
municipality to establish and administer a general assistance
program. N.J.S.A. 44:8-114. The general assistance program is
administered by a local assistance board in accordance with the
General Public Assistance Law and the regulations of the
Commissioner of the Department of Human Services. Ibid. The local
assistance board is composed of three to five persons appointed
by
the municipal chief executive officer upon approv-al of the
governing body. N.J.S.A. 44:8-115. The members serve without
compensation, but they are allowed expenses. Ibid. One member of
the board may be a member of the municipal governing body.
N.J.S.A. 44:8-116. The members serve terms ranging from one to
four years. Ibid. The board appoints the director of welfare, who
is the first executive and administrative officer of the board.
N.J.S.A. 44:8-117. The salary of the director is fixed by the
board with the approval of the governing body. Ibid. The director
carries out the day-to-day operation of the local general
assistance program. N.J.S.A. 44:8-118. Employees necessary to
administer the general assistance program are appointed in the same
manner as other municipal employees. N.J.S.A. 44:8-117.
The general assistance
program of the municipality is
subject to detailed regulations of the State's Department of Human
Services. N.J.A.C. 10:85-1.1 et seq., State v. Malone, 164 N.J.
Super. 47, 51 (Chan. Div. 1978). This includes the establishment
of qualifications for the local director of welfare, N.J.A.C.
10:85-2.2(d)(2), and the authority of the Department to approve
the
appointment or reappointment of the director, N.J.A.C. 10:85-2.2(d)(1).
Pursuant to the regulations the local assistance board
is responsible for the administration of the general assistance
program, the study of local employment possibilities, and to
generally act as a liaison to the local community regarding the
general assistance program. N.J.A.C. 10:85-2.2(g). Policy is set
by the State and binding upon the municipality. Attorney General
Formal Opinion No. 15, p. 4 (July 7, 1980). A local assistance
board "is involved solely in carrying out administrative
decisions." Ibid. The board is not a policy-maker. Ibid.
A "local
government agency" includes
[A]ny 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
entirety created by more than one county or
municipality, which performs functions other
than of 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. The definition is very broad and specifically
excludes only purely advisory bodies and school boards. A local
assistance board is established by a municipality for the purpose
of administering the General Public Assistance Law. Policy
determinations regarding the general assistance program are made
by
the State Department of Human Services. However, the Board's
function is more than purely advisory as it also conducts research,
engages in public education, and administers the general assistance
program in the municipality. Accordingly, a local assistance board
is a "local government agency" within the meaning of the
Local
Government Ethics Law. N.J.S.A. 40A:9-22.4(e).
Having concluded
that a local assistance board is a
"local government agency" subject to the Local Government
Ethics
Law, the next inquiry is whether the 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). Except for the member of
the
board who is also a member of the municipal governing body, the
board members are not within the first three classes of local
government officers.
The fourth and
last category of "local government
officer" is a person "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.'..., 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)(4). As the Local Government
Ethics
Law makes specific reference to the definitions contained in the
Employer-Employee Relations Act, it is necessary to examine the
latter Act. The Employer-Employee Relations Act, N.J.S.A. 34:13A-1
et seq., provides a mechanism for the resolution of labor disputes
in the private and public sectors. N.J.S.A. 34:13A-2. The Act is
administered by the State's Public Employment Relations Commission
(PERC). N.J.S.A. 34:13A-5.2.
The Act defines
"managerial executives" of a public
employer as
persons who
formulate management policies and
practices, and persons who are charged with
the responsibility of directing the
effectuation of such management policies and
practices.... [N.J.S.A. 34:13A-3(f)]
"Confidential
employees" of a public employer are defined as
employees
whose functional responsibilities or
knowledge in connection with the issues
involved in the collective negotiations
process would make their membership in any
appropriate negotiating unit incompatible with
their official duties. [N.J.S.A. 34:13A-3(g)]
The significance
of "managerial executives" and "confidential
employees" under the Employer-Employee Relations Act is that
these
individuals are excluded from membership in the local collective
bargaining unit comprising of local public em-ployees. N.J.S.A.
34:13A-5.3.
PERC has established
guidelines for determining whether
a person formulates management policy and direct its effectuation
and is accordingly a "managerial executive."
A person
formulates policies when he develops
a particular set of objectives designed to
further the mission of the governmental unit
and when he selects a course of action from
among available alternatives. A person
directs the effectuation of policy when he is
charged with developing the methods, means,
and extent of reaching a policy objective and
thus oversees or coordinates policy implemen-
tation by line supervisors. Simply put, a
managerial executive must possess and exercise
a level of authority and independent judgment
sufficient to affect broadly the
organization's purposes or its means of
effectuation of these purposes. Whether or
not an employee possesses this level of
authority may generally be determined by
focusing on the interplay of three factors:
(1) the relative position of that employee in
his employer's hierarchy; (2) his functions
and responsibilities; and (3) the extent of
discretion he exercises. [Boro. of Montvale,
6 NJPER 507, 508-09 (1980)]
Thus, the determination
as to whether a person is a
"managerial executive" requires an examination of the
person's
position in the local agency's hierarchy, his job function and
responsibilities, and the amount of individual discretion exercised
by the individual. The analysis of these three factors is very
often a position-by-position determination.
The determination
as to whether a person is a "con-
fidential employee" also requires an individualized determination.
PERC has narrowly construed the term "confidential employee."
County of Essex, 17 NJPER 256, 257 (1991). The "key" to
status as
a confidential employee "is an employee's access to, and knowledge
of, material used in labor relations processes including contract
negotiations, contract administration, grievance handling and
preparation of these processes." Ibid. Specifically, PERC makes
this case-by-case analysis as follows:
We (PERC)
scrutinize the facts of each case to
find for whom each employee works, what he
does, and what he knows about collective
negotiations issues. Finally, we determine
whether the responsibilities or knowledge of
each employee would compromise the employer's
right to confidentiality concerning the
collective negotiations process if the
employee was included in a negotiating unit.
[State of New Jersey, 11 NJPER 507, 510
(1985)]
Thus, a "confidential
employee" has access to confidential
information of the employer which is relevant to the labor
relations of the local government agency.
In Attorney General
Opinion No. 91-0093 (Septem- ber 20,
1991) we examined in detail the terms "managerial executives"
and
"confidential employees" in the context of the Local Government
Ethics Law. 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. We determined in Opinion No. 91-0093
and in other related Opinions that certain persons serving in
government were necessarily "managerial executives" or
"confidential employee" and therefore "local government
officers",
because their statutory duties mandated that they exercise
significant policy-making responsibilities. In examining the
duties of the members of a local assistance board discussed above,
the members exercise responsibilities in the administration of the
general assistance program in the municipality. However, as noted
previously, policy determinations regarding the general assistance
program are reserved to the State.
Accordingly,
the members of a local assistance board are
not necessarily "managerial executives" or "confidential
employees." However, the members of a local assistance board
are
within the scope of the term "local government employee."
Therefore, the members of a local assistance board are subject to
the statutory code of ethics provided by the Local Government
Ethics Law, N.J.S.A. 40A:9-22.5, or a local code of ethics which
is
established in accordance with the Law, N.J.S.A. 40A:9-22.21.
For the foregoing
reasons, you are advised that a local
assistance board established pursuant to N.J.S.A. 44:8-114 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., and that the members of
the commission are not per se "local government officers"
for
purposes of the Law. Rather, the members of the commission are
"local government employees" for purposes of the Law and
are
subject to the terms of the Local Government Ethics Law which
govern the conduct of "local government employees."
Very truly yours,
ROBERT
J. DEL TUFO
ATTORNEY GENERAL
By:__________________________________
John J. Chernoski
Senior Deputy Attorney General
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