| May 16, 1994
Beth Gates, Chair
Local Finance Board
Department of Community Affairs
CN 803
Trenton, New Jersey 08625-0803
Re: 94-0092:
May a Municipality enter into an interlocal
agreement with a county, pursuant to N.J.S.A. 40:8A-
1 et seq., for the enforcement and administration
of the Local Government Ethics Law, N.J.S.A. 40A:9-
22-1 et seq., within the municipality.
Dear Ms. Gates:
A question has
been raised as to whether a municipality may enter into an interlocal
agreement with a county, pursuant to the Interlocal Services Act,
N.J.S.A. 40:8A-1 et seq., for the enforcement and administration
of the Local Government Ethics Law, N.J.S.A. 40A:9-22-1 et seq.,
within the municipality. For
the following reasons, you are advised that the Interlocal Services
Act, N.J.S.A. 40:8A-1 et seq., permits a municipality to enter into
an interlocal agreement with a county for the enforcement and administration
of the Local Government Ethics Law. However, to avoid potential
confusion and problems in the enforcement and administration of
the Local Government Ethics Law, it is necessary for the Local Finance
Board to promulgate regulations to provide uniform standards for
interlocal agreements intended to enforce and administer
the Local Government Ethics Law.
The Local Government
Ethics Law was enacted on February 20, 1991 and became
effective 90 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. Also, the Local Finance Board
has authority
to adopt rules and regulations to implement the purposes of the
Local Government
Ethics Law. N.J.S.A. 40A:9-22.7(g).
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. 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. At a public hearing interested persons are given
an
opportunity to comment on the local code and as a result of the
public 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, it 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 Interlocal
Services Act, N.J.S.A. 40:8A-1 et seq., enables any local
unit to enter into a contract with any other local unit to enter
into a contract
with any other local unit "for the joint provision within their
several
jurisdictions of any service which any party to the agreement is
empowered to
render within its own jurisdiction." N.J.S.A. 40:8A-3. Further,
this Act
defines "local unit" as "a municipality, county,
school district or a regional
authority or district other than an interstate authority or district."
N.J.S.A.
40:8A-2(a). "Service" includes "any power, duties
and functions exercised or
performed by a local unit by or pursuant to law." N.J.S.A.
40:8A-2(d). Further,
the Interlocal Services Act is to be interpreted broadly to facilitate
and
promote interlocal agreements. N.J.S.A. 40:8A-10.
Statutes are
to be construed liberally as a whole to effect the declared
or clearly implied purposes of the Legislature. Hyland v. Ponzio,
159 N.J.
Super. 233, 238 (App. Div. 1978). Further, statutes will be construed
together
"as a unitary and harmonious whole insofar as that may be possible
in order that
each may be fully effective." Shusted v. Traenkner, 155 N.J.
Super. 23, 28 (Law
Div. 1977), see also North Bergen Tp. v. Lord, 131 N.J. Super. 280,
282 (App.
Div. 1974). Here the central purpose of the Interlocal Services
Act is to
encourage local governments to cooperate in the provision of services.
Implicit
in this grant of authority is the intention of the Legislature to
foster arrangements which rely on existing expertise outside of
the particular unit of
government or which provide services more economically. Accordingly,
in
construing the statutes as a whole, the Interlocal Service Act would
permit a
municipality to enter into an agreement with a county for the enforcement
and
administration of the Local Government Ethics Law. Additionally,
a municipality
or county could also enter into an interlocal agreement with another
municipality
or county for the enforcement and administration of the Local Government
Ethics
Law.
Notwithstanding
the above, one of the purposes of the Local Government
Ethics Law is to provide uniformity in the application of the Local
Government
Ethics Law. N.J.S.A. 40A:9-22.1(e). Further, the Local Finance
Board is
charged with the responsibility to adopt regulations for the implementation
of
the Act. N.J.S.A. 40A:9-22.7(g). Interlocal Agreements entered into
for the en-forcement and administration of the Local Government
Ethics Law without the
guidance and oversight of the Local Finance Board potentially creates
confusion
and problems in administering a uniform ethics code for the State's
local
government officers and employees and defeats the underlying purposes
of the
Local Government Ethics Law.
For example,
if an interlocal agreement is entered into by municipality X
for municipality Y to enforce and administer the Local Government
Ethics Law is
the local ethics code of municipality Y, which may exceed the requirements
of
the State ethics code, applicable to the local government officials
and employees
of municipality X? An argument could be made that the local ethics
code of
municipality Y was adopted to reflect the local concerns of the
citizens of
municipality Y and that it is inappropriate to subject the local
government
officials and employees of municipality X to these same standards.
Also, if
municipality X has previously adopted a local ethics code and an
interlocal
agreement is entered into with county A to enforce and administer
the Local
Government Ethics Law are the local government officers and employees
of
municipality X subject to the ethics code of municipality X or
county A?
Needless to say, the foregoing demonstrates the potential for confusion
and
problems in effectively implementing interlocal agreements to enforce
and
administer the Local Government Ethics Law.
In these circumstances,
it is necessary for the Local Finance Board to
first adopt regulations concerning the enforcement and administration
of the
Local Government Ethics Law by means of interlocal agreements. See,
e.g.
N.J.A.C. 5:23-4.6 et seq. (Commissioner of the Department of Community
Affairs
regulations concerning interlocal agreements to enforce and administer
the
Uniform Construction Code Act, N.J.S.A. 52:27D-119 et seq.) This
office is
available to assist the Local Finance Board in drafting proposed
regulations in
this regard.
Therefore, for
the above stated reasons you are advised that the Interlocal
Services Act, N.J.S.A. 40:8A-1 et seq., permits a municipality to
enter into an
interlocal agreement with a county for the enforcement and administration
of the
Local Government Ethics Law, N.J.S.A. 40A;9-22.1 et seq. However,
to ensure
uniformity of the Local Government Ethics Law throughout the State,
it is
necessary for the Local Finance Board to first adopt regulations
providing for
the implementation of interlocal agreements to enforce and administer
the Local
Government Ethics Law.
Very
truly yours,
DEBORAH
T. PORITZ
ATTORNEY GENERAL OF NEW JERSEY
By:___________________________________
John J. Chernoski
Deputy Attorney General
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