| June 5, 1992
Barry Skokowski, Sr.
Deputy Commissioner
Department of Community Affairs
CN 800
Trenton, New Jersey 08625
Re: 92-0074:
Appointment of the Members of Local
Ethics Boards in Faulkner Act Municipalities.
Dear Deputy Commissioner
Skokowski:
You have requested
advice as to who is the proper
appointing authority of the members of a municipal ethics board,
created pursuant to the Local Government Ethics Law, N.J.S.A.
40A:9-22.1 et seq., in municipalities organized pursuant to the
Optional Municipal Charter Law (Faulkner Act), N.J.S.A. 40:69A-1
et
seq. For the reasons stated below you are advised that in Faulkner
Act municipalities with a population greater than 100,000, the
proper appointing authority of the members of a municipal ethics
board is the mayor, with the advice and consent of council. In
Faulkner Act municipalities with a population of 100,000 or less,
you are advised that the proper appointing authority of the members
of a municipal ethics board is the municipal council.
The purpose of
the Local Government Ethics Law is to
provide a State-wide ethical code applicable to persons who serve
in local government. N.J.S.A. 40A:9-22.1. 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. However, a county or municipality
has the option to establish a local ethics board. N.J.S.A. 40A:9-22.13(a),
N.J.S.A. 40A:9-22.19(a). The local ethics board consists
of six members who are residents of the county or municipality,
as
appropriate. Ibid. Once established, the local ethics board is
required to promulgate by resolution a code of ethics for all local
government officers and employees serving the jurisdiction.
N.J.S.A. 40A:9-22.15, N.J.S.A. 40A:9-22.21. The local board has
the option to adopt either the State code or a more restrictive
code. Ibid. The local ethics board has responsibility to review
and determine alleged violations of the local code of ethics, to
enforce the local code, and to render advisory opinions. Ibid.,
see also Attorney General Opinion No. 91-0136 (May 19, 1992) and
Attorney General Opinion No. 92-0061 (May 27, 1992) for a detailed
discussion of the responsibilities of a local ethics board.
In turning to the appointing process of the members of a
municipal ethics board, the Local Government Ethics Law provides
that each municipality may, by ordinance, establish a municipal
ethics board. N.J.S.A. 40A:9-22.19(a). Further, "[t]he members
of
the ethics board shall be appointed by the governing body of the
municipality." Ibid. The Local Government Ethics Law, N.J.S.A.
40A:9-22.3(c), defines the term "governing body" as "in
the case of
a municipality, the commission, council, board or body, by whatever
name it may be known, having charge of the finances of the
municipality...." The legislative authority of a municipality
has
charge of municipal finances. See, N.J.S.A. 40A:2-1 et seq. (Local
Bond Law), N.J.S.A. 40A:4-1 et seq. (Local Budget Law), and
N.J.S.A. 40A:5-1 et seq. (Local Fiscal Affairs Law); cf. Amato v.
Bd. of Chosen Freeholders, 240 N.J. Super. 313 (App. Div. 1990)
(The county's legislative body has the authority to introduce,
approve, amend and adopt the budget pursuant to the Local Budget
Law.)
Accordingly,
one would initially conclude that the
legislative body of the municipality is the proper appointing
authority of the members of the municipal ethics board. How-ever,
the Faulkner Act, N.J.S.A. 40:69A-43(f), provides as follows:
Whenever
in a municipality with a popula-tion
greater than 100,000, according to the latest
federal decennial census, the governing body
is authorized by any pro-vision of general law
to appoint the mem-bers of any board,
authority or commission, such power of
appointment shall be deemed to vest in the
mayor with the advice and consent of the
council. In all other municipalities,
whenever the governing body is authorized by
any provision of general law to appoint the
members of any board, authority or commission,
such power of appointment shall be deemed to
vest in the mayor with the advice and consent
of the council, unless the specific terms of
that general law clearly require a different
appointment procedure or appointment by
resolution, in which case the appointment
shall be by the council.
The term "general
law" is defined by the Faulkner Act,
N.J.S.A. 40:69A-28, as:
...any law
or provision of law, not
inconsistent with this act, heretofore or
hereafter enacted which is by its terms
applicable or available to all
municipalities....
Thus, the Local
Government Ethics Law would be deemed a "general
law" for purposes of the Faulkner Act. The result of this
determination is that in a Faulkner Act municipality with a
population of more than 100,000, the power to appoint the members
of the municipal ethics board would vest in the mayor, subject to
the advice and consent of council. N.J.S.A. 40:69A-43(f).
Regarding Faulkner
Act municipalities with a popula-tion
of 100,000 or less, an examination of the Local Government Ethics
Law is necessary to determine whether the specific terms of the
Law
clearly provide 1) a different appointment proce-dure, or 2)
appointment by resolution. If the Local Government Ethics Law
provide for either method of appointment, the municipal council
would exercise the power to appoint the members of the municipal
ethics board. N.J.S.A. 40:69A-43(f).
The Local Government
Ethics Law does not provide for the
appointment of the members of the municipal ethics board "by
resolution." Accordingly, the "resolution" provision
of N.J.S.A.
40:69A-43(f) would be inapplicable. In turning to whether "the
specific terms of that general law clearly pro-vides a different
appointment procedure," as noted previously the Local Government
Ethics Law defines in specific terms "governing body"
to be "in the
case of municipality, the commission, council, board or body, by
whatever name it may be known, having charge of the finances of
the
municipality." N.J.S.A. 40A:9-22.3(c). The question is whether
the specific definition of "governing body" in the Local
Government
Ethics Law, "clearly provides a different appointment procedure,"
in which case the power of appointment would be exercised by the
municipal council.
The Court in
Corrigan v. Palkoski, 213 N.J. Super. 316
(Law Div. 1986), considered a similar question. Specific-ally, the
Court examined whether, in a Faulkner Act munic-ipality, the mayor
or council was authorized to appoint the members of the zoning
board of adjustment. The Court examined the legislative history
of
N.J.S.A. 40:69A-43(f) and determined that the statute was not
intended to apply to zoning boards of adjustment. Corrigan v.
Palkoski, supra, 213 N.J. Super. at 321 to 323. In the
alternative, the Court also focused on whether the specific terms
of the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq., clearly
required a different appointment procedure for members of the
zoning board of adjustment. Corrigan v. Palkoski, supra, 213 N.J.
Super. at 322 to 323. The Court noted that the Faulkner Act
provides that the mayor shall be the appointing authority "if
the
general law merely authorized appointment by the 'governing body.'
The purpose is to give clear and definitive meaning to the term
'governing body' when it is used in that generic sense." Corrigan
v. Palkoski, supra, 213 N.J. Super. at 323. The Court indicated
that Municipal Land Use Law defined "governing body" in
specific
terms to be "the chief legislative body" and that the
Municipal
Land Use Law provided that the "governing body" was to
determine by
ordinance the method of appointment for members of the board of
adjustment. Ibid. Accordingly, the Court concluded a "different
appointment procedure" was established by the Municipal Land
Use
Law and that therefore, the mayor did not exercise appointing
authority of the members of the board of adjustment. Ibid.
While the Local
Government Ethics Law does not con-tain
language that the members of the municipal ethics board are to be
appointed in a manner prescribed by the council, the Law does give
a specific meaning to the term "governing body." This
definition
is specific and a not a generic term. Accord-ingly, the Local
Government Ethics Law provides a "different appointment procedure"
for the members of the municipal ethics board. Therefore, the
mayor of a Faulkner Act municipality with a population of 100,000
or less does not exercise the appointing authority of the members
of the municipal ethics board.
For the above stated reasons you are advised that in a
Faulkner Act municipality with a population greater than 100,000,
the proper appointing authority of the members of the municipal
ethics board is the mayor, with the advice and con-sent of the
council. In other Faulkner Act municipalities the proper
appointing authority of members of a municipal ethics board is the
municipal council.
Very truly yours,
ROBERT
J. DEL TUFO
ATTORNEY GENERAL
By:__________________________________
John J. Chernoski
Senior Deputy Attorney General
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