| June 4, 1992
Barry Skokowski, Sr.
Deputy Commissioner
Department of Community Affairs
CN 800
Trenton, New Jersey 08625
Re: 92-0071: Members of a Municipal Environmental
Commission as "Local Government Officers"
Dear Deputy Commissioner
Skokowski:
You have requested
advice as to whether the members of a
municipal environmental commission, organized in accordance with
N.J.S.A. 40:56A-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 reasons stated below, you are advised that the members of
a municipal environmental commission 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 government 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 governing
body of a municipality may by ordinance es-tablish an environmental
commission for the protection, devel-opment, or use of the natural
resources located within the
municipality. N.J.S.A. 40:56A-1. The commission consists of
between five and seven members appointed by the mayor. Ibid. One
member of the commission shall be a member of the municipal
planning board. Ibid. The commission has the power to conduct
research into the use of open lands in the municipality, to co-ordinate
the activities of unofficial bodies organized for sim-ilar
purposes, and to engage in public education activities as it deems
necessary. N.J.S.A. 40:56A-2. Further, the commis-sion is to keep
an index of all open spaces and to make recom-mendations to the
planning board or governing body for inclu-sion in the master plan
and for the development and use of open spaces. Ibid.
Additionally, the commission may, subject to the approval of the
governing body, acquire real and personal property in the name of
the municipality for the purposes of conserving or utilizing open
spaces. N.J.S.A. 40A:56A-3. The municipal governing body may
appropriate funds for the expenses of the commission and the
commission may appoint clerks and other employees within the limits
of funds appropriate to it. N.J.S.A. 40A:56A-5.
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
municipal environmental commission is established by a municipality
for the purpose of protecting and developing open spaces in the
municipality. While the commission makes recommendations to the
municipality, its duties are more than purely advisory as it also
conducts research, engages in public education, and acquires open
spaces for use by the municipal-ity. Accordingly, a municipal
environmental commission 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 municipal environmental commission 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 applica-tions, or grant zoning
variances; 3) members of independent local authorities; and 4)
persons who are "managerial execu-tives" or "confidential
employees." N.J.S.A. 40A:9-22.3(g). Except for the member of
the
commission who is also a member of the municipal planning board,
the 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 em-ployee
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 defini-tions 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 effec-tuation of policy when he is
charged with developing the methods, means,
and extent of reaching a policy objective and
thus oversees or coordinates policy
implementa-tion by line supervisors. Simply
put, a managerial executive must possess and
ex-ercise 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 "mana-gerial executive" requires
an examination of the person's posi-tion
in the local agency's hierarchy, his job function and
responsibilities, and the amount of individual discretion exer-cised
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 "confiden-tial
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 in-cluding 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 con-cerning the
collective negotiations process if the
employee was included in a negoti-ating 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 (September 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 iden-tify persons of a high level with
policy-making responsibil-ities. 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 municipal environmental commission
discussed above, the members exercise responsibilities in the
specialized area of the development and use of open spaces.
However, these responsibilities are limited to research,
coordinating activi-ties, and public education. Further, their
determinations as to how open spaces should be used are merely
recommendations and their ability to acquire property is
specifically subject to municipal control.
Accordingly,
the members of a environmental commission are not
necessarily "managerial executives" or "confidential
em-ployees."
While a specific fact analysis suggested in Attorney General
Opinion No. 91-0093 (September 20, 1991) may result in the
determination that the members of a particular environ-mental
commission are "managerial executives" or "confidential
employees",
the statutes establishing environmental commissions does not lead
to this per se conclusion. However, the members of an
environmental commission are within the scope of the term "local
government employee." Therefore, the members of a municipal
environmental commission 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 municipal
environmental commission established pursuant to N.J.S.A. 40:56A-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., 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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