This memorandum presents a comprehensive overview of the State Ethics Commission's decisions, policies and guidelines concerning the post-employment provisions of the Conflicts Law. Presented below are general explanations of the statutory provisions as well as summaries of past Commission cases. The case presentations are designed only to provide examples of post-employment issues that have been addressed by the Commission. Specific questions regarding a particular situation should be addressed directly to the Commission. The sections of the Conflicts Law covering post-employment are N.J.S.A. 52:13D-17, the general prohibition, and 17.2(c), the casino post-employment restriction. In addition, the Uniform Ethics Code contains a one-year ban on certain State officials' interactions with their former agencies.

N.J.S.A. 52:13D-17 provides:

No State officer or employee or special State officer or employee, subsequent to the termination of his office or employment in any State agency, shall represent, appear for, negotiate on behalf of, or provide information not generally available to members of the public or services to, or agree to represent, appear for, negotiate on behalf of, or provide information not generally available to members of the public or services to, whether by himself or through any partnership, firm or corporation in which he has an interest or through any partner, officer or employee thereof, any person or party other than the State in connection with any cause, proceeding, application or other matter with respect to which such State officer or employee or special State officer or employee shall have made any investigation, rendered any ruling, given any opinion, or been otherwise substantially and directly involved at any time during the course of his office or employment. Any person who willfully violates the provisions of this section is a disorderly person, and shall be subject to a fine not to exceed $1,000 or imprisonment not to exceed six months, or both.

In addition, for violations occurring after the effective date of P.L.2005, c.382, any former State officer or employee or former special State officer or employee of a State agency in the Executive Branch found by the State Ethics Commission to have violated any of the provisions of this section shall be assessed a civil penalty of not less than $500 nor more than $10,000, which penalty may be collected in a summary proceeding pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.).

N.J.S.A. 52:13D-13(g) defines "interest" as:

"Interest" means (1) the ownership or control of more than 10% of the profits or assets of a firm, association, or partnership, or more than 10% of the stock in a corporation for profit other than a professional service corporation organized under the "Professional Service Corporation Act," P.L. 1969, c.232 (C. 14A:17-1 et seq.); or (2) the ownership or control of more than 1% of the profits of a firm, association, or partnership, or more than 1% of the stock in any corporation, which is the holder of, or an applicant for, a casino license or in any holding intermediary company with respect thereto, as defined by the "Casino Control Act," P.L. 1977, c.110 (C. 5:12-1 et seq.). The provisions of this act governing the conduct of individuals are applicable to shareholders, associates or professional employees of a professional service corporation regardless of the extent or amount of their shareholder interest in such a corporation.

Application of Section 17 - General Post-Employment Prohibition
Specific Cause, Proceeding, Application or Other Matter

Section 17 prohibits a former State officer or employee or special State officer or employee from representing, appearing for, negotiating on behalf of, providing information or services not generally available to the public or agreeing to perform any of those activities for any party, other than the State, in connection with those causes, proceedings, applications or other matters in which the officer or employee had made any investigation, rendered any ruling, given any opinion or been otherwise substantially and directly involved while in State employment. There is no time limit on this prohibition.

It is important to note that these restrictions apply to specific causes, proceedings, applications or other matters. This restriction does not extend to "determinations of general applicability or the preparation or review of legislation which is no longer pending before the Legislature or the Governor." In addition, the Commission determined In the Matter of Walter J. Maibach, Case No. 179-93, that a regulation enacted pursuant to rulemaking authority is analogous to legislation and, in accordance with the definition of section 13(h), is not a "matter" when it is no longer pending.

Whether a cause, proceeding, application or other matter at issue in a post-employment question is categorized as specific or general is a determination made by the Commission on a case-by-case basis. Questions about the nature of matters with which employees had involvement during the course of their official duties should be directed to the Commission.

Substantial and Direct Involvement

In certain situations it may be difficult to determine whether a former State officer or employee or special State officer or employee was "substantially and directly involved" in a certain matter or whether such officer or employee had merely been technically or formally involved. Such determinations are made as individual cases arise. In considering whether a former State employee had substantial and direct involvement in a matter, the Commission has typically reviewed such factors as whether the individual had supervisory responsibility, provided input, submitted reports, signed contracts on behalf of the agency, attended meetings, approved applications, had access to confidential information, or was directly involved in decisionmaking.

Providing Information Not Generally Available to the Public

Section 17 prohibits former State officers and employees or special State officers or employees from providing information not generally available to the public. The Commission normally solicits input from the former officer's or employee's agency and also considers whether the information is available under the Open Public Records Act, N.J.S.A. 47:1A-1 et seq.

Application of Restriction to Partnership, Firm or Corporation

The restrictions contained in the Conflicts of Interest Law apply to the partnership, firm or corporation under the following circumstances: (1) if the former State officer or employee or special State officer or employee is a shareholder, associate or professional employee of a firm organized as a professional service corporation or (2) if the former State officer or employee or special State officer or employee owns or controls more than 10% of the stock of a corporation or more than 10% of the profits or assets of a firm, association or partnership.

The post-employment restrictions extend, therefore, to former State officers or employees and special State officers or employees personally and to any employees or officers of any professional service corporation with which he/she is employed or associated or is a shareholder. In addition, the restriction also extends to those employees or officers of partnerships, firms or corporations in which the former State officer or employee or special State officer or employee has more than 10% ownership or control. If a former State officer or employee or special State officer or employee is employed by a company in which he/she does not have more than a 10% interest, and the company is not a professional service corporation, the restrictions contained in the Conflicts Law pertain to him/her personally but do not extend to the corporation by which he/she is employed.

Penalty

Section 17 of the Conflicts Law was amended in 2006. For violations occurring after the effective date of the amendment, March 15, 2006, any former State officer or employee or former special State officer or employee of a State agency in the Executive Branch found by the Commission to have violated any of the provisions of section 17 shall be assessed a civil penalty of not less than $500 nor more than $10,000.

In addition, the fine for a violation of section 17 that is punishable as a disorderly persons offense was increased from $500 to $1,000.

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Sample General Post-Employment Cases Addressed By The Commission
Employment With a Firm With Which State Officer or Employee Has Contact in His/Her Official Capacity

The Commission has addressed the issue of employment with a firm with which a State officer or employee or special State officer or employee has contact in his/her official capacity on numerous occasions. Listed below are some examples.

In 1979, the State employee, a Highway Supervisor, Division of Design at the Department of Transportation ("DOT") requested permission to accept a position with a firm with which he came in contact in his official capacity. The Division of Design was responsible for all phases of projects involving bridges, drafted the actual contract agreement, supervised its administration, and acted as liaison between the consultant and the Department. The actual choice of the consulting firm was the responsibility of the Contract Selection Committee which was separate and apart from the Division of Design. The employee was not a member of the Contract Selection Committee.

The Commission determined that it would not be a conflict of interest for the employee to accept a consultant position with the firm. He was, however, permanently restricted from representing, appearing for or negotiating on behalf of the firm on any matter in which he had been substantially and directly involved during his State employment. The Commission requested that as a member of the consulting firm, he refrain from working on any bridge projects that were before the DOT while he was a State employee. There were no restrictions on his participation on behalf of the consulting firm on new matters. In the Matter of Gary Case, Commission Case No. 763-79.

In 1980, a Department of Energy employee received an offer of employment from a subcontractor with whom she had interaction in her official capacity. The interaction included accompanying the subcontractor on "walk throughs" of institutions applying for grants from the Department and auditing and monitoring the status of grant applications.

The Commission reviewed the matter under the section 17 post-employment restriction and also considered whether the employee had exercised an unwarranted privilege prohibited by section 23(e)(3) of the statute. The Commission determined that although the employee had some involvement and contact with the subcontractor in her official capacity, there did not appear to have been any substantial and direct involvement in a specific matter by the employee during the course of her employment. As to the unwarranted privilege provision, the Commission determined that since the employee did not solicit the position with the subcontractor but rather was approached by the subcontractor and immediately contacted her supervisor regarding the offer of employment, no unwarranted privilege existed. In the Matter of Frances Kelly, Commission Case No. 875-80.

In 1990, the Commission considered a situation in which the State employee was offered a position as vice-president of Facilities Maintenance for a construction management and development company. As a State employee, the individual had been an engineer in the Bureau of Lease Construction, Department of the Treasury, and had been involved in monitoring construction at 2 of the 14 properties owned by the company and leased to the State.

The Commission discussed whether there was an improper "revolving door" appearance to the employee being offered the position. Upon learning that the development company had solicited the employee for the vice-president position and that the employee had not sought the position, the Commission considered the appearance issue to be resolved. The Commission then determined that section 17 did not bar the employment with the development company but that the employee could not represent the company with respect to the two properties with which he had involvement as a State employee. In the Matter of Lewis Ischinger, Commission Case No. 5-90.

Matters Pending Before Former Employee's Former Agency

Former State officers and employees or special State officers or employees are not prohibited from working on matters that originated in their former agencies subsequent to their leaving State service so long as they had no substantial and direct involvement in those matters.

In 1974, the former Acting Director of the Division of Water Resources in the Department of Environmental Protection ("DEP") requested an opinion from the Commission as to whether he could accept employment with a consulting firm that had several matters before the Division. These matters included a stream encroachment permit, two water pollution control permits, a loan offer and grant offer.

The Commission determined that since the Acting Director's signature appeared as approving the two water pollution control permits, the loan offer and the grant offer, he was precluded from becoming involved in those matters during his employment with the firm. Because he was not involved with the stream encroachment permit, the Commission found that it did not fall with the section 17 prohibition. Advisory Opinion No. 23.

In 2001, the Commission considered whether the former Administrator, Office of Finance and Management, Division of Solid Waste, DEP, was permitted to represent ABC in connection with efforts to obtain a solid waste facility permit to operate a transfer station.

In 1994, XYZ had filed an application with the Division for a solid waste facility permit to expand its then operating transfer station and materials recovery facility. Staff who reported to the former Administrator reviewed the application and prepared a draft permit. A public hearing on the draft permit was held in July; the former Administrator acted as the hearing examiner. In August, the final permit was issued under the former Administrator's signature, with an expiration date of August 2000. In 1995, the permit was further modified to include a recycling operation. The modification was issued under the former Administrator's signature; his employment with the Division and with the State terminated in March 1997.

XYZ filed a permit renewal application in the spring of 2000 and that application was pending with the Division at the time of the Commission's review. ABC was in the process of purchasing the assets of XYZ and wished to become the owner/operator of the transfer station. The former Administrator, or the firm with which he was currently associated, wanted to represent ABC in its efforts to obtain a solid waste facility permit to operate the transfer station.

The Commission determined that the ABC permit application was a new matter for the purposes of section 17. The XYZ permit was not transferable. When the sale of XYZ's assets to ABC took place, the existing permit would be revoked and ABC would then be required to comply with DEP regulations applicable to new permits. In the Matter of Robert C. Ciolek, Case No. 39-01.

Employment by Entities Contracting With Former Agency

In 1972, the former Chief of the Bureau of Financial Aid at the Department of Community Affairs ("DCA") requested permission to accept employment with the City of Orange, whose program he was responsible for coordinating during his tenure at the DCA. The employee made the contract arrangements with the city for funding from DCA; however, he did not sign off on the pending contracts.

The Commission determined that the former employee made the contract arrangement for funding by the DCA and that such activity on the part of the employee constituted direct involvement within the meaning of section 17. All monies for administering the municipality's program came from the DCA. Advisory Opinion No. 2.

Subsequent to the rendering of Advisory Opinion No. 2, the contract in which the former Bureau Chief was originally involved expired. A new contract between Orange and the DCA was ready for execution. Orange wished to engage the former Bureau Chief under this new contract. The Commission sought advice from the Attorney General's Office. In Attorney General Opinion M72-0414, it was determined that the employment of the former Bureau Chief by Orange under a newly executed contract would not violate section 17. The Opinion noted that when the new contract is signed, the direct connection between the funded program and the former employee is severed. The Opinion further stated that "termination of the contract in which the former employee was directly involved appears to be the reasonable point at which the restriction upon the former employee's post-employment activities should also be terminated."

In subsequent cases, the Commission has affirmed its position that a new contract is a new matter for the purposes of the post-employment restriction. (In the Matter of Rose Zeltzer, Case No. 3-95, In the Matter of Michael Rowe, Case No. 2-96, In the Matter of Patricia A. Stolpe, Case No. 35-03).

In 1980, the Commission issued two advisory opinions dealing with employment by entities receiving funding from a former agency and distinguished the cases based on the "substantial and direct" involvement criteria articulated in the statute.

In the first instance, the Commission addressed a situation that involved an individual who worked for the State Law Enforcement Planning Agency ("SLEPA") as a Senior Planner. During the course of his employment, he had official associations with a County Director of a Planning Board who was anxious to participate in a SLEPA Planning Program. The Senior Planner advised the Director to send a letter to SLEPA stating the county's interest in the program, which the Director did. Several months subsequent to receiving information from SLEPA, the Director submitted an application seeking SLEPA funding for his County Planning Program. The Senior Planner then assisted the Director in completing the application by providing data relative to the program and, in particular, to the county's personnel and financial needs. The Senior Planner then became interested in the position that was funded by the SLEPA grant.

The Commission determined that since the individual was substantially and directly involved in the awarding of the SLEPA grant, he was precluded from such employment due to the post-employment restriction. Advisory Opinion No. 37.

The Commission considered two related requests for advice involving former SLEPA employees who had accepted or desired to accept positions of employment with county agencies receiving SLEPA grants. The individuals, in their capacities as State employees, had no involvement in processing or otherwise acting upon the grant applications of the county agencies that later became their employers.

The Commission determined that the employment was not proscribed as the former State employees were not substantially and directly involved in these matters during the course of their State employment. The Commission determined that, in and of itself, a grantor-grantee relationship between an individual's former State agency and his subsequent non-State employer normally does not give rise to a prohibited post-employment situation within the framework of section 17. The Commission noted that, of course, the applicability of the post-employment restriction of the Conflicts Law to any given sets of facts and circumstances ultimately can be determined only by direct inquiry to the Commission. Advisory Opinion No. 39.

Multi-faceted Projects

The Commission has considered a number of cases involving multi-faceted projects that are of long duration or sequential in development and has declined to segment the projects for the purposes of the post-employment restriction.

In 1998, the Commission was asked whether modifications to an RFP constituted a new matter for the purposes of the post-employment restriction. The former employees acknowledged that they were substantially and directly involved with the original RFP during their State employment. However, they advanced the position that the modified RFP was a new matter because the earlier RFP intended that the work be accomplished through the mandatory use of a particular system. The use of that system was not mandatory in the later RFP on which they bid. The Commission found that the utilization of alternate methodologies to accomplish project goals does not constitute a new matter for the purposes of the post-employment restriction. In the Matter of Linda Anselmini and Lora Levosky, Commission Case No. 22-98.

In 1999, the Commission considered whether the former State employee's post-employment activities in connection with the closure of several contaminated sites were violative of section 17. The Commission determined that the former employee was substantially and directly involved in the closure while he was a DEP employee based on a sizable record indicating his participation in meetings and correspondence dealing with specifics of the closure. With respect to the matter, the Commission had to determine whether the matter involved the entire closure process or whether the closure process should be segmented based on changes in regulations and modifications in the technologies applied to the site. After an extensive review, the Commission determined that the closure process should not be segmented for the purposes of the post-employment restriction and, thus, determined that section 17 precluded the former employee's involvement in the closure on behalf of his employer. In the Matter of Kenneth Siet, Commission Case No. 6-99,

In 2004, a former State employee requested that the Commission consider whether his previous involvement in a 1996 Landfill Closure/Post Closure Plan ("1996 Plan") during his tenure with the DEP precluded him, or the law firm with which he was now associated, from representing a party other than the State in litigation stemming from the closure.

The employee's position was that the 1996 Plan had been superseded by a 2002 Plan, with which he had had no involvement, and, thus, the post-employment prohibition did not apply. The Commission viewed the 2002 Plan as a revision to the 1996 Plan, not as a new matter. Because the former employee was substantially and directly involved in the 1996 Plan, the Commission determined that he was precluded from having any involvement in the landfill closure. The former employee had no ownership or shareholder interest in the law firm, and the firm was not organized as a professional service corporation; therefore, the restriction on the former State employee did not apply to the firm. In the Matter of Robert C. Ciolek, Commission Case No. 13-04.

One-Year Ban - Certain State Officials

In accordance with the recommendation of the Special Counsel for Ethics Review and Compliance, the Uniform Ethics Code specifies that for one year after the termination of the State office or employment of any of the individuals noted below, he/she shall not represent, appear for, or negotiate on behalf of, or agree to represent, appear for, or negotiate on behalf of any person or party other than the State with or before any officer or employee of the State agency in which he/she served. The provisions of this subsection shall not apply to any partnership, firm or corporation in which he/she has an interest or is employed, or to any partner, officer, director or employee of such partnership, firm or corporation. Nothing contained in this section prohibits a State agency from contracting with a former State officer or employee to act on behalf of the State.

The one-year ban applies to any head, deputy head or assistant head of any principal department, board, commission or authority, the Superintendent of State Police, the Governor's Chief of Staff, Chief of Management and Operations, Chief of Policy and Communications, Chief Counsel, Director of Communications, Policy Counselor, and any deputy or principal administrative assistant to any of the aforementioned members of the staff of the Office of the Governor.

In addition to the prohibition dealing with one's former agency, the governor and each head of a principal department in the Executive branch are prohibited, for one year after the termination of office or employment, from registering as a "governmental affairs agent," as that term is defined in N.J.S.A. 52:13C-20. N.J.S.A. 52:13C-21.4. This provision is not enforced by the State Ethics Commission.

Summary

In summary, the general post-employment restrictions do not prohibit a former State officer or employee or special State officer or employee or any firm in which he/she has an interest from representing a party other than the State concerning:

- Determinations of general applicability.

- Preparation or review of legislation that is no longer pending before the
Legislature or the Governor.

- Regulations no longer pending before an agency since these are not
specific causes and are analogous to legislation.

- Any matter pending before any State agency, including the individual's former agency, if the former officer or employee or special State officer or employee was not "substantially and directly" involved in the matter while employed by the State.

- Accepting employment with entities that contract with the individual's former agency or any other State agency if the State officer or employee or special State officer or employee was not "substantially and directly" involved in the matter in question.

- Providing information generally available to the public.

- Accepting employment with a firm with which the State officer or
employee or special State officer or employee had contact in his/her
official capacity.

However, certain State officials are subject to additional one-year bans on their post-employment activities.

Seeking Future Employment

In the past, the Commission has determined that employees who have direct and substantial contact with any interested parties must refrain from circulating resumes or in any manner seeking employment with those individuals or entities while still in State service. If an employee is solicited for potential employment by an interested party, that solicitation must be disclosed immediately to the employee's management and to the departmental ethics liaison officer to avoid a situation where an employee may appear to be using his/her official position to gain an unwarranted advantage. Employees who do not have direct and substantial contact with interested parties may circulate resumes and enter into discussions regarding potential employment with those firms as long as they avoid a situation that may give rise to an unwarranted advantage. All employees are cautioned that discussions, interviews, and negotiations should not take place on State time. In the Matter of Theodore Fischer, Commission Case No. 83-88.

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Section 17.2(C) - Casino Post-Employment Restriction
N.J.S.A. 52:13D-17.2(c) provides:

No person or any member of his immediate family, nor any partnership, firm or corporation with which such person is associated or in which he has an interest, nor any partner, officer, director or employee while he is associated with such partnership, firm or corporation, shall, within two years next subsequent to the termination of the office or employment of such person, hold, directly or indirectly, an interest in, or hold employment with, or represent, appear for or negotiate on behalf of, any holder of, or applicant for, a casino license in connection with any cause, application or matter, or any holding or intermediary company with respect to such holder of, or applicant for, a casino license in connection with any phase of casino development, permitting, licensure or any other matter whatsoever related to casino activity, except that:

(1) a member of the immediate family of a person may hold employment with the holder of, or applicant for, a casino license if, in the judgment of the State Ethics Commission, the Joint Legislative Committee on Ethical Standards, or the Supreme Court, as appropriate, such employment will not interfere with the responsibilities of the person and will not create a conflict of interest, or reasonable risk of the public perception of a conflict of interest, on the part of the person;

(2) an employee who is terminated as a result of a reduction in the workforce at the agency where employed, other than an employee who held a policy-making management position at any time during the five years prior to termination of employment, may, at any time prior to the end of the two-year period, accept employment with the holder of, or applicant for, a casino license if, in the judgment of the State Ethics Commission, the Joint Legislative Committee on Ethical Standards, or the Supreme Court, as appropriate, such employment will not create a conflict of interest, or reasonable risk of the public perception of a conflict of interest, on the part of the employee. In no case shall the restrictions of this subsection apply to a secretarial or clerical employee. Nothing herein contained shall alter or amend the post-employment restrictions applicable to members and employees of the Casino Control Commission and employees and agents of the Division of Gaming Enforcement pursuant to subsection b. (2) of section 59 and to section 60 of P.L.1977, c.110 (C.5:12-59 and C.5:12-60); and

Section 17.2(c) prohibits a "person" from holding, directly or indirectly, an interest in, or holding employment with, or representing, appearing for, or negotiating on behalf of, any holder of, or applicant for, a casino license in connection with any cause, application or matter, or any holding or intermediary company with respect to such holder of, application for, a casino license in connection with any phase of casino development, permitting, licensure or any other matter whatsoever related to casino activity. This prohibition extends for a period of two years. Section 17.2(c) was amended on December 20, 1993 to provide an exception for members of a "person's" immediate family. Under the amendment, a family member is permitted to hold employment with the holder of, or applicant for, a casino license, if the Commission determines that such employment will not create a conflict of interest or reasonable risk of the public perception of a conflict of interest. An amendment effective January 25, 1995 provides that a non-policy-making employee terminated as a result of a reduction in force may, prior to the end of the two-year period, accept employment with a casino license holder or applicant if the Commission determines that there is no actual conflict of interest or the public perception of a conflict.

Section 17.2(a) defines "person" as:

any State officer or employee subject to financial disclosure by law or executive order and any other State officer or employee with responsibility for matters affecting casino activity; any special State officer or employee with responsibility for matters affecting casino activity; the Governor; any member of the Legislature or full-time member of the Judiciary; any full-time professional employee of the Office of the Governor, or the Legislature; members of the Casino Reinvestment Development Authority; the head of a principal department; the assistant or deputy heads of a principal department, including all assistant and deputy commissioners; the head of any division of a principal department; any member of the governing body, or the municipal judge or the municipal attorney of a municipality wherein a casino is located; any member of or attorney for the planning board or zoning board of adjustment of a municipality wherein a casino is located, or any professional planner, or consultant regularly employed or retained by such planning board of zoning board of adjustment.

Section 13(i) defines "member of the immediate family" as:

the person's spouse, child, parent or sibling residing in the same household.

Application of Restriction to Partnership, Firm or Corporation

The restrictions contained in section 17.2(c) apply to "persons" and immediate family members not granted a waiver and to any partnership, firm or corporation with which such "person" is associated or in which he/she has an interest. The Conflicts Law defines "interest" as the ownership or control of more than 10% of the stock of a corporation or more than 10% of the profits or assets of a firm.

Effect of Restriction on Employment by Casino Association

In Advisory Opinion No. 41, the Commission determined that, under the application of section 17.2(c), a "person" may not become employed by the Casino Association of New Jersey ("Casino Association") immediately upon leaving State service.

The Casino Association is a non-profit corporation and holder of a non-gaming casino service industry license that operates as a trade association representing the collective interests of Atlantic City casino licensees. Among other things, the Association works to promote the common good of the industry and its members and to provide liaison between the industry and other parties, be they governmental, business, labor, social or civic.

In Advisory Opinion No. 41, the Commission noted that section 17.2 is a part of the Conflicts Law which has as its paramount objective to "ensure propriety and preserve public confidence." N.J.S.A. 52:13D-12(b). Section 17.2 supplements both the Casino Control Act and the Conflicts Law in fostering and maintaining this objective. It represents an additional step "to sanitize casino gambling and its potentially corrupting effect upon government." See Knight v. Margate, 88 N.J. 374, 392 (1981). It is the Commission's view that a technical interpretation of section 17.2(c) that would allow "persons" leaving State service to be employed by the Casino Association would be inconsistent with the overall objectives and purposes of the statute even though the Casino Association is not a casino license holder. Its membership is exclusively casino license holders and it acts to further the aggregate interests of those casino license holders in a number of areas, including interaction with State government. This is exactly the kind of relationship between State "persons" and the casinos that is intended to be regulated by the section 17.2(c) post-employment ban. Advisory Opinion No. 41.

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Sample Casino Post-Employment Cases Addressed By The Commission
In 1982, the Commission interpreted the "associated" language of section 17.2(c) to mean that, regardless of the business structure of the firm, any partnership, ownership or employment by a "person" or immediate family member with a firm that represents, in any capacity in any matter, a casino license holder brings that firm under the two-year restriction of the statute. In the Matter of a Former Casino Control Commission Accountant, Commission Case No. C15-80. Although the nature of the "associated" relationship is not defined by the statute, the Commission adopted the position that it includes partnership, ownership and employment relationships because of the internal sense of the provision which "refers to partners, officers, directors, and employees as those deemed associated with partnerships, firms or corporations within the meaning of its terms." Id.

In 1986, the Commission, building on its 1982 interpretation, determined that "persons" and law firms with which they were associated were prohibited from representing casino licensees or applicants in any circumstances whatsoever. In the Matter of Irwin Kimmelman, Commission Case No. C2-86. With regard to representing a holding or intermediary company with respect to a licensee or applicant, the representational prohibition is not so broad, applying only to any matters related to casino activity. Id.

In 1989, the Commission rendered a formal advisory opinion concerning whether an "of counsel" relationship associates a former State employee with a law firm for the purposes of the application of section 17.2(c). The Commission determined that the facts and circumstances of the proposed "of counsel" relationship would constitute an "association" and would subject the law firm to the provisions of section 17.2(c). Advisory Opinion No. 40.

In 1991, the Commission restated its interpretation of section 17.2(c) in connection with an analysis of the post-employment section of the Casino Control Act, N.J.S.A. 5:12-1 et seq. The Commission noted that:

Section 17.2(c) restricts not only the representation by a firm in which a ["person"] has an interest but also prohibits representation by a firm with which the ... "person" ... is "associated." In the Matter of Division of Gaming Enforcement Request for Advice, Commission Case No. 18-91.

In 1992, a former Casino Control Commission employee requested an opinion from the Commission regarding the application of the casino post-employment restriction to her situation. The former employee established a private practice and was interested in providing legal services to law firms on a independent contractor basis. Because the possibility existed that she would offer her services to an Atlantic City law firm representing casino licensees, she inquired as to the effect of section 17.2(c) on the arrangements that she would make.

The Commission determined that section 17.2(c) of the Conflicts Law did not preclude the former State employee from establishing the proposed independent contractor relationship with a law firm that represents holders of casino licenses. This ruling was limited to the circumstances of this case. The crucial question in this case was whether the services that the former employee proposed to provide for a law firm created an "association" with that law firm; such an association would subject a law firm as well as the former employee to the section 17.2(c) restriction. In the Matter of Susan Kessler, Commission Case No. 5-92.

In 1996, the Commission considered whether, under the application of section 17.2(c), a "person," or a law firm with which the person is associated, is permitted to represent a holding or intermediary company with respect to a New Jersey casino license holder or applicant in connection with casino development, permitting, licensure or any other matter related to casino activity, in a jurisdiction other than New Jersey.

The Commission determined that such representation is permitted. Part of the focus of the Legislature's statement of public policy in the Casino Control Act, N.J.S.A. 5:12-1(b), is that there must be "public confidence and trust in the credibility and integrity of the regulatory process and of casino operations" in New Jersey. The focus of the casino-related restrictions of the Conflicts Law also speak to eliminating any taint to the regulation of New Jersey casinos and do not reasonably reach to casino regulation in other jurisdictions. Request for Opinion, Casino Post-employment, Case No. 7-96.

Members of the Bar

Former State officers and employees who are also members of the bar must also adhere to the ethical standards adopted by the New Jersey Supreme Court:

Except as law may otherwise expressly permit, and subject to RPC 1.9, a lawyer who formerly has served as a government lawyer or public officer or employee of the government shall not represent a private client in connection with a matter: (1) in which the lawyer participated personally and substantially as a public officer or employee, or (2) for which the lawyer had substantial responsibility as a public officer or employee; or (3) when the interests of the private party are materially adverse to the appropriate government agency, provided, however, that the application of this provision shall be limited to a period of six months immediately following the termination of the attorney's service as a government lawyer or public officer. (RPC 1.11 (a)).

The scope of New Jersey's Conflicts of Interest Law is at least as broad as the rules covering attorney ethics. Requests for advice on the application of the Rules of Professional Conduct should be directed to the Supreme Court Advisory Committee on Professional Ethics.

April 2009

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