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Beth Gates, Chair Local Finance Board Department of Community Affairs CN 803 Trenton, New Jersey 08625-0803

Re: 95-0168: Members of a County Local Advisory Committee on Alcoholism and Drug Abuse, a County Alliance Steering Sub- committee, and a Municipal Alliance Committee as "Local Government Officers or Employees."

Dear Ms. Gates:

You have asked whether the members of a County Local Advisory Committee on Alcoholism and Drug Abuse, a County Alliance Steering Subcommittee, and a Municipal Alliance Committee, established pursuant to N.J.S.A. 26:2B-33, N.J.S.A. 26:2BB-8, and N.J.S.A. 26:2BB-9, respectively, are "local government officers or employees" 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 County Local Advisory Committee on Alcoholism and Drug Abuse, a County Alliance Steering Subcommittee, and a Municipal Alliance Committee are not per se "local government officers." Rather, except as noted herein, they are generally "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 Local Government Ethics Law is to provide a statewide 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.

County Local Advisory Committees on Alcoholism and Drug Abuse (hereinafter "LACADA"), County Alliance Steering Subcommittees, and a Municipal Alliance Committees are parts of an overall State program to achieve the goal of reducing alcoholism and drug abuse. L. 1989, c. 51. A State Alliance to Prevent Alcoholism and Drug Abuse has been established within the Governor's Council on Alcoholism and Drug Abuse to create a statewide network which is dedicated to a comprehensive and coordinated effort against alcoholism and drug abuse. N.J.S.A. 26:2BB-7. Further, this effort includes the Department of Health's Division of Alcoholism and Drug Abuse in the review and approval of a county's annual comprehensive plan for the provision of community services to meet the needs of alcoholics and drug abusers. N.J.S.A. 26:2B-33. The Governor's Council on Alcoholism and Drug Abuse pursuant to the statutory mandate,N.J.S.A. 26:2BB-4(j), has promulgated regula-tions to facilitate the implementation of a statewide comprehensive and coordinated effort against alcoholism and drug abuse. N.J.A.C. 17:40-1.1 et seq. LACADAs, County Alliance Steering Subcommittees, and Municipal Alliance Committees are participants in this statewide effort.

The governing body of each county is required to submit to the Division of Alcoholism and Drug Abuse and the Governor's Council on Alcoholism and Drug Abuse an annual comprehensive plan for the pro-vision of community services to meet the needs of alcoholics and drug abusers. N.J.S.A. 26:2B-33(a). Further, the governing body of each county is required to establish a LACADA. N.J.S.A. 26:2B-33(d). The LACADA is to be comprised of no less than 10 members, but no more than 16 members appointed by the governing body. Ibid. At least two members are to be recovering alcoholics and at least two members are to be recovering drug abusers. Ibid. Other members are the county prosecutor or his/her designee, and a wide range of public and private organizations involved in the treatment of alcohol and drug abuse and other individuals with an interest or experience in alcohol and drug abuse issues. Ibid. The LACADA is to assist the governing body in the development of the annual comprehensive plan, to review and approve the County Annual Alliance Plan for the expenditure of funds derived from the Drug Enforcement and Demand Reduction Fund (seeN.J.S.A. 2C:35-15), and to submit this Plan annually to the Division of Alcoholism and Drug Abuse and to the Governor's Council on Alcoholism and Drug Abuse. N.J.S.A. 26:2B-33(d),N.J.S.A. 26:2BB-8(d).

Each LACADA is required to establish a County Alliance Steering Subcommittee. N.J.S.A. 26:2BB-8. The members of the Subcommittee are to include, but not limited to, private citizens and representatives of the: LACADA; County Human Services Advisory Council; County Superintendent of Schools; existing County Council on Alcoholism; County Prosecutor's office; Family part of the Superior Court, Chancery Division; Youth Services Commission; County School Board Association; County health agency; County mental health agency; local businesses; County affiliate of the New Jersey Education Association, and other service providers. Ibid. Further, pursuant to the regulations of the Governor's Council on Alcoholism and Drug Abuse, a representative of the Parent-Teacher Association or Parent-Teacher Organization is to be a member of the Subcommittee. N.J.A.C. 17:40-2.2(b)(13). The members of the Subcommittee are appointed by the county LACADA. N.J.A.C. 17:40-2.2(c).

The functions of the Subcommittee include: the development and submission of a County Annual Alliance Plan for the expenditure of funds derived from the Drug Enforcement and Demand Reduction Fund; development of programs and fiscal guidelines consistent with the Governor's Council on Alcoholism and Drug Abuse for the awarding of funds to counties and municipalities for alcohol and drug Alliance activities; identification of a network of community leadership for the expansion, replication and development of successful community model programs, and coordination of projects among and within municipalities to assure cost effectiveness and to avoid fragmentation and duplica-tion. N.J.S.A. 26:2BB-8(b). Pursuant to the regulations of the Governor's Council on Alcoholism and Drug Abuse, additional functions of the Subcommittee include: establishment of a cooperative relation-ship with the County Youth Service committee; the provision of ongoing training to the Subcommittee and municipal-member alliance committees, and the development of a County Alliance Plan incorporating the Municipal Alliance Committee requests for Proposals to be annual submitted to the Governor's Council on Alcoholism and Drug Abuse. N.J.A.C. 17:40-2.3(a)(5),(6),(7).

The governing body of a municipality may appoint a Municipal Alliance Committee or join with one or more municipalities to appoint a Municipal Alliance Committee. N.J.S.A. 26:2BB-9. Members of the Municipal Alliance Committee may include: the chief of police; the president of the school board; the superintendent of schools; a student assistance coordinator; a representative of the parent-teacher associa-tion; a representative of the local bargaining unit for teachers; a representative of the Chamber of Commerce; a municipal court judge; representatives of local civic associations; representatives of local religious groups, and private citizens. Ibid. Pursuant to the reg-ulations of the Governor's Council on Alcoholism and Drug Abuse other members of the Committee may include: the governing body appointed representative; individuals who have been impacted by alcoholism and/or drug abuse; representatives of labor unions; representatives of the media; private citizens with an interest or experience in issues concerning alcohol and/or drug abuse, and representatives of public and private organizations involved in the treatment of alcohol and drug related problems. N.J.A.C.17:40-2.4(c)(1),(12) to (16). The members are appointed by the municipal governing body. N.J.A.C.17:40-2.4(c).

The Municipal Alliance Committee, in consultation with the LACADA shall identify alcoholism and drug prevention, education, and community needs. N.J.S.A. 26:2BB-9. The Committee shall also implement the State Alliance programs. Ibid. Additionally, the Committee is responsible for: organizing and coordinating efforts involving schools, law enforcement, business groups and other community organizations for the purpose of reducing alcoholism and drug abuse; in cooperation with local school districts, developing alcoholism and drug abuse educations programs in grades K through 12; in cooperation with local school districts, developing procedures for the intervention, treatment referral and discipline of students abusing alcohol or drugs, and developing alcoholism and drug abuse education support and outreach efforts for parents. N.J.A.C. 17:40-2.5(a)(1) to (13).

The initial inquiry is whether a County LACADA, a County Alliance Steering Subcommittee, and a Municipal Alliance Committee are "local government agencies." 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 with-in a county or municipality, and any independent local authority, including any entirely 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. A County LACADA is established by the county governing body to assist the county in development of the annual comprehensive plan, to review and approve the County Annual Alliance Plan for the expenditure of funds derived from the Drug Enforcement and Demand Reduction Fund, to submit the Plan annually to State authorities, and to establish and appoint members to the County Alliance Steering Subcommittee. This Subcommittee, among its many functions, develops the County Annual Alliance Plan, develops programs and fiscal guidelines for the awarding of funds for alcohol and drug Alliance activities, identifies a community leadership network, and provides ongoing training. A Municipal Alliance Committee is appointed by the municipal governing body to perform a wide variety of functions, including the identification of alcoholism and drug prevention, education, and community needs; developing, organizing and coordinating alcoholism and drug abuse programs. The various functions of a County LACADA, a County Alliance Steering Committee, and a Municipal Alliance Committee are more than "purely advisory." Accordingly, a County LACADA, a County Alliance Steering Subcommittee, and a Municipal Alliance Committee are "local government agencies" within the meaning of the Local Government Ethics Law. N.J.S.A. 40A:9-22.3(e).

Having concluded that a County LACADA, a County Alliance Steering Subcommittee, and a Municipal Alliance Committee are "local government agencies" subject to the Local Government Ethics Law, the next inquiry is whether the members of these bodies 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 any member of the Municipal Alliance Committee who is also a member of the municipal governing body, the members of these various bodies 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 local 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 Relation 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 who 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 employees. 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 implementation 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. 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 "confidential 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 (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 identify persons 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 employees" and therefore "local govern-ment officers", because their statutory duties mandated that they exercise significant policy-making responsibilities. Further, the Appellate Division in Dept. of Community Affairs v. Cook, 282 N.J. Super. 207, 209 (App. Div. 1995), concluded that the Legislature in defining the term "local government officer" intended to target persons having policy-making responsibilities. In examining the duties of the members of a County LACADA, a County Alliance Steering Subcommittee, and a Municipal Alliance Committee discussed above, the members exercise responsibilities in the specialized area of the development, coordination, and implementation of programs relating to alcohol and drug abuse awareness and education. While these responsibilities are important, these responsibilities do not appear to rise to the level of policy-making contemplated by the Legislature.

Accordingly, the members of a County LACADA, a County Alliance Steering Subcommittee, and a Municipal Alliance Committee 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 specific members of a particular LACADA, Steering Subcommittee, or Alliance Committee are "managerial executives" or "confidential employees", the statutes establishing these bodies does not lead to this per se conclusion. It should be noted that certain members of these bodies may be independently deemed "local government officers", e.g. a county prosecutor, a member of the governing body. These individuals have an independent obligation to comply with the Local Government Ethics Law provisions governing "local public officers" (e.g. annual financial disclosure), regardless of their membership on these bodies.

However, the members of a County LACADA, a County Alliance Steering Subcommittee, and a Municipal Alliance Committee are general-ly within the scope of the term "local government employees." This term is defined as "any person, whether compensated or not, whether part-time or full-time, employed by or serving on a local government agency who is not a local government officer, but shall not mean any employee of a school district." N.J.S.A. 40A:9-22.4(f). Therefore, except as noted in the accompanying footnote, the members of a County LACADA, a County Alliance Steering Subcommittee, and a Municipal Alliance Committee are subject to the statutory code of ethics pro-vided by the Local Government Ethics Law, N.J.S.A. 40A:9-22.5, or a county or municipal code of ethics, as appropriate, which is established in accordance with the Law, N.J.S.A. 40A:9-22.15, N.J.S.A. 40A:9-22.21, and which governs the conduct of "local government employees."

For the foregoing reasons, you are advised that a County Local Advisory Committee on Alcoholism and Drug Abuse, a County Alliance Steering Subcommittee, and a Municipal Alliance Committee, established pursuant to N.J.S.A. 26:2B-33, N.J.S.A. 26:2BB-8, and N.J.S.A. 26:2BB-9, are "local government agencies" for purposes of the Local Govern-ment Ethics Law, N.J.S.A. 40A:9-22.1 et seq., and that the members of the County LACADA, Steering Subcommittee, and Municipal Alliance Committee are not per se "local government officers" for purposes of the Law. Rather, except as indicated above, the members 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,

DEBORAH T. PORITZ ATTORNEY GENERAL OF NEW JERSEY

 

By:___________________________________ John J. Chernoski Deputy Attorney General

 

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