| July 20, 1992
Barry Skokowski, Sr.
Deputy Commissioner
Department of Community Affairs
CN 800
Trenton, New Jersey 08625-0800
Re: 92-0109:
Emergency Management Coordinators and
Councils as "Local Government Officers" pursuant
to the Local Government Ethics Law
Dear Deputy Commissioner
Skokowski:
The question
has arisen as to whether the county and
municipal emergency management coordinators and the members of
local emergency management councils, appointed pursuant N.J.S.A.
App. A:9-40.1, N.J.S.A. App. A:9-42.1, and N.J.S.A. App. A:9-41
are
"local government officers" pursuant to the Local Government
Ethics
Law. For the reasons stated below you are advised that the county
and municipal emergency management coordinators are "local
government officers" pursuant to the Local Government Ethics
Law
and are therefore subject to its terms, particularly the
requirement of filing a financial disclosure statement. Further,
you are advised that the members of local emergency management
councils are "local government employees" subject to the
terms of
the Local Government Ethics Law. However, they are not per se
"local government officers" and therefore not required
to file a
financial disclosure statement.
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.
To protect the
health, safety, and welfare of the public
during an emergency the Legislature has established a comprehensive
scheme by which the State, counties, and municipalities, shall plan
for emergencies and implement emergency plans. N.J.S.A. App. A:9-30
et seq. At the local level every municipality and county is
required to appoint an emergency management coordinator. N.J.S.A.
App. A:9-40.1, N.J.S.A. App. A:9-42.1. The municipal and county
emergency management coordinators are appointed for a three year
term. Ibid. The municipal emergency management coordinator may be
removed by the Governor for cause. N.J.S.A. App. A:9-40.2. The
municipal coordinator is responsible for the planning, activating,
coordinating, and conducting of emergency management operations
within the municipality. N.J.S.A. App. A:9-40.4. The municipal
coordinator, when conditions warrant, may proclaim a state of local
disaster and issue and enforce orders necessary to implement
emergency management operations. N.J.S.A. App. A:9-40.5. The
appointment of a county emergency management coordinator is subject
to the approval of the State Director of Emergency Services.
N.J.S.A. App. A:9-42.1. Further, the county coordinator is subject
to the supervision and control of the Director and the coordinator
may be removed from office by the Director. Ibid. The county
coordinator is responsible for the development, coordination, and
activation of the county-wide mutual aid emergency management plan
and for the activation of such emergency management facilities and
services that are available from county government. N.J.S.A. App.
A:9-42.2. Additionally, the county coordinator has the authority
to declare a county-wide state of emergency and thereby implement
the county emergency management plan. Division of State Police
Directive No. 61 (November 19, 1986), Division of State Police
Directive No. 100 (June 12, 1986).
Also, each municipality
is required to create a local
emergency management council. N.J.S.A. App. A:9-41. The council
consists of fifteen members who are appointed by the municipal
appointing authority. Ibid. The municipal coordi-nator is an ex
officio member of the council and he serves as the chairperson.
Ibid. The duties of the council are to assist the municipality in
establishing the various local volunteer agencies needed to meet
the requirements of all local emergency management activities and
to establish an adequate organization to assist in supervising and
coordinating the emergency management activities of the local
municipality. Ibid.
The initial inquiries
are whether a local emergency
management council is a "local government agency" and
whether the
municipal and county emergency management coordinators are employed
by or serve a "local government agency." The Local Government
Ethics Law, N.J.S.A. 40A:9-22.3(e), defines "local government
agency" as
any 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
entity created by more than one county or
municipality, which performs functions other
than of purely advisory nature, but shall not
include a school board.
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. The local
emergency management councils are more than purely advisory bodies,
as they assist in the establishment and organization of the
emergency management activities of the municipality. N.J.S.A. App.
A:9-41. Accordingly, a local emergency council would be a "local
government agency" for purposes of the Local Government Ethics
Law.
In turning to the municipal emergency management coordinator, he
is
an ex officio member and the chairperson of the local emergency
management council. Ibid. Further, the coordinator is appointed
for a specific term by the municipality and he is deemed a
municipal officer. Sutkowski v. Jackson Tp., 184 N.J. Super. 198
(Law Div. 1981). The county emergency management coordinator is
appointed for a specific term by the county and he would similarly
be considered a county officer. It may vary from county to county
where a particular county emergent management coordinator is placed
in the county's organizational scheme, eg. in a bureau, division,
etc. However, the coordinator clearly serves the county as its
emergent management coordi-nator. It follows that the municipal
and county emergency management coordinators serve a "local
government agency."
The next inquiry
is whether the council members and the
municipal and county emergency management coordinators 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 inde-pendent local
authorities; and 4) persons who are "managerial executives"
or
"confidential employees." N.J.S.A. 40A:9-22.3(g). The
Council
members and coordinators 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 inde-pendent 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 deter-mined 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 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 "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
statutory duties of a local emergency council it establishes the
various volunteer agencies needed to meet the requirements of local
emergency management activities and establishes an adequate
organization to assist in the supervision and coordination of local
emer-gency management activities. However, these duties are
generally administrative in nature and do not rise to the level
of
policy-making.
Accordingly,
the members of a local emergency manage-ment
council are not necessarily "managerial executives" or
"confidential employees." 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 particular
municipal emergency management council are "manage-rial executives"
or "confidential employees", the statute establishing
the council
does not lead to this per se conclu-sion. However, the council
members are within the scope of the term "local government
employee." Therefore, the members of a municipal emergency
management council are subject to the stat-utory 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.
In turning to
the municipal and county emergency
management coordinators, they perform similar duties. As noted
previously, the municipal and county coordinators are general
responsible for the planning, activating, and coordinating of
emergency management operations within the municipality and county.
N.J.S.A. App. A:9-40.4, N.J.S.A. App. A:9-42.2. The municipal
coordinator may proclaim, in his discretion, a state of local
disaster and issue and enforce orders to implement emergency
management operations. N.J.S.A. App. 9-40.5. The county
coordinator may similarly declare a county-wide state of emergency.
Division of State Police Directive No. 61 (November 19, 1986),
Division of State Police Directive No. 100 (June 12, 1986). These
duties are significant and involve policy-making determinations.
Thus, the county and municipal emergency management coordinators
would be deemed "local government officers" pursuant to
the Local
Government Ethics Law.
For the foregoing
reasons you are advised that a local
emergency management council is a "local government agency"
for
purposes of the Local Government Ethics Law. Further, you are
advised that the members of a local emergency management council
are not per se "local government officers" for purposes
of the Law.
Rather, they are "local government employees" and are
subject to
the terms of the Local Government Ethics Law which govern the
conduct of "local government employees." However, the
county and
municipal emergency management coordinators are "local government
officers" for purposes of the Local Government Ethics Law and
therefore subject to its terms, particularly the requirement of
filing a financial disclosure statement.
Very truly yours,
ROBERT
J. DEL TUFO
ATTORNEY GENERAL
By:__________________________________
John J. Chernoski
Senior Deputy Attorney General
|
