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Re: 91-0093: Financial Disclosure Statements
Required by "Local Government Officers"
Pursuant to the Local Government Ethics
Law, L. 1991, c. 29.

Dear Deputy Commissioner Skokowski:

You have requested advice as to the type of positions
which are considered "local government officers." Such persons, as
opposed to "local government employees," are required to file a
financial disclosure form pursuant to the Local Government Ethics
Law, N.J.S.A. 40A:9-22.1 et seq. To a large extent this
determination is fact sensitive and must be made on a case-by-case
basis. Thus, it is not possible in this opinion to list every
"local government officer" subject to the Local Government Ethics
Law. However, contained below is an analysis of the definition of
the term "local government officer" and general guidance concerning
the interpretation of the term.

The Local Government Ethics Law was enacted on February
20, 1991. L. 1991, c. 29, 27. The purpose of the Act is to
provide a Statewide method for 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. This Code of Ethics is enforced
by the Local Finance Board. N.J.S.A. 40A:9-22.4. However, a
county or municipality may establish a county or municipal ethics
board to enforce the code of ethics. N.J.S.A. 40A:9-22.13,
N.J.S.A. 40A:9-22.19. The county or municipal ethics board
establishes the local code of ethics. N.J.S.A. 40A:9-22.13,
N.J.S.A. 40A:9-22.19. If the local code is not identical to the
State code, it is subject to the approval of the Local Finance
Board. N.J.S.A. 40A:9-22.13, N.J.S.A. 4OA:9-22.19.

In addition to adhering to the ethical guidelines set
forth in the law a "local government officer" is required to file
annually a financial disclosure statement, N.J.S.A. 40A:9-22.6,
which contains information about his sources of income, certain
business interests, and his real estate holdings in New Jersey.
Ibid. (Initially financial disclosure statements are required to
be filed by August 19, 1991 and thereafter annually by April 30.
Ibid.) To be subject to the requirements of filing a financial
disclosure statement one must satisfy the test of being a local
government officer of a local government agency.
N.J.S.A. 40A:9-22.6. The term "local government officer" is defined as,

any person whether compensated or not, whether
part-time or full-time: (1) elected to any
office of local government agency; (2) serving
on a local government agency which has the
authority to enact ordinances, approve
development applications or grant zoning
variances; (3) who is a member of an
independent municipal, county or regional
authority; or (4) 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," P.L. 194, c. 100 (C. 34:13A-3), 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)].

Thus, a variety of persons serving in a "local government agency"
are included within the definition of "local government officer."

In contrast to the term "local government officer" is the
term "local government employee." This latter 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:2-22.3(f).

The Act applies to "local government officers" and "local
government employees" of a "local government agency." A "local
government agency" is 'defined 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
September 20, 1991 independent local
authority, including any entity created by
more than one county or municipality, which
performs functions other than of a purely
advisory nature, but shall not include a
school board. [N.J.S.A. 40A: 9-22.3(e)).

The term "local government agency" encompasses a wide variety of
local government bodies and individuals. The definition is very
broad and specifically excludes only purely advisory bodies and
school boards. It is beyond the scope of this opinion to attempt
to list every "local government agency." However, we discern that
one intention of the Legislature in enacting the "Local Government
Ethics Law" was to complement the State Ethics Law, N.J.S.A.
52:13D-12 et seq., by providing an Ethics Law for local government
officials and employees. Thus, the general rule is that all
persons serving in State or local government are governed by either
the State Ethics Law or the Local Government Ethics Law, unless
specifically excluded by the terms of the applicable Law. The
determination as to whether a person serves in a "local government
agency" or "State agency" is position specific. Undoubtedly there
may be instances when this determination is not altogether clear.
While we have not examined all these potentially unclear situations
we have examined several. We have determined that the Office of
County Sheriff, the Office of County Prosecutor, the Boards of
Trustees of Municipal Free Public Library, the Boards of Trustees
of a Regional County Library, the County Library Commission, and
the Boards of Trustees of a County College are "local government
agencies" within the scope of the Local Government Ethics Law.
Other potentially unclear situations are best left to an individual
analysis.

ELECTED OFFICIALS

Included within the definition of "local government
office" are persons "elected to any office of a local government
agency." N.J.S.A. 40A:9-22.3(g). There are a myriad of locally
elected officials. While not all-inclusive, these elected
officials include the County Sheriff, N.J. Const. 1947, Art. VII,
II, 112; the County Clerk, Ibid; the County Surrogate, Ibid.;
County Freeholders, N.J.S.A. 40:20-23; a County Executive,
N.J.S.A. 40:41A-33; a Borough Mayor and Council Members, N.J.S.A.
40A: 60-2; a City Mayor and Council Members, N.J.S.A. 40A: 61-2; a
Town Councilman-at-Large (Mayor) and Council Members, N.J.S.A.
40A:62-2; Township Committee Members, N.J.S.A. 40A: 63-2; and Fire
District Commissioners, N.J.S.A. 40A:14-70. Also, any person
selected to fill a vacancy in an elected position would be deemed
to be an elected official. O'Connor v. Bristol County, 110 N.E.2d
492, 494-95 (Mass. 1953).

LOCAL GOVERNMENT OFFICERS SERVING ON AGENCIES
AUTHORIZED TO ENACT ORDINANCES, APPROVE
DEVELOPMENT APPLICATIONS, AND GRANT ZONING VARIANCES

The next category of "local government officers" are
individuals "serving on a local government agency which has the
authority to enact ordinances, approve development applications or
grant zoning variances." N.J.S.A. 40A:9-22.3(g)(2). Local
government agencies authorized to enact ordinances are the
legislative bodies of municipal corporations. Albigese v. City of
Jersey, 129 N.J. Super. 567, 569 (App. Div. 1974). The local
government agencies authorized to enact ordinances include, but are
not limited to the legislative bodies of the State's municipalities
and the Boards of Chosen Freeholders in the various Optional County
Charter forms of government, N.J.S.A. 40:41A-38 (County Executive
Plan), N.J.S.A. 4O:41A-52 (County Manager Plan), N.J.S.A. 40:41A-79
(County Supervisor Plan). Also, local boards of health are
authorized to enact ordinances. N.J.S.A. 26:3-64.

Persons serving on local government agencies empowered to
approve development applications or grant zoning variances are also
included within the definition of "local government officers." The
approval of development applications and the granting of zoning
variances is in part governed by the Municipal Land Use Law,
N.J.S.A. 40:55D-1 et seq. The "municipal agency" is authorized to
approve applications for development. N.J.S.A. 40:55D-10.3. A
"municipal agency" is defined as,

a municipal planning board or board of
adjustment, or a governing body of a
municipality when acting pursuant to
this act and any agency which is created
by or responsible to one or more municipalities
when such agency is acted pursuant to this act
(Municipal Land Use Law). [N.J.S.A. 40:55D-5].

Thus, a member of a municipal planning board, the board of
adjustments or any other agency, such as a regional planning
board, N.J.S.A. 40:55D-77 et seq., which exercises the authority
to approve development applications under the Municipal Land Use
Law would be deemed a "local government officer." However, it
will be necessary for each municipality to identify which of
these "municipal agencies" are authorized to approve applications
for development within the municipality.

At the county level, a county planning board may be
created to approve development applications. N.J.S.A. 40:27-7.1
et seq. Further, the county planning board may delegate its
authority to review and approve subdivision applications and site
plan applications to the county planning director and a member of
the county planning board. N.J.S.A. 40:27-6.8. However, it will
be necessary for each county to identify whether the county has
created a county planning board and whether the board has
delegated any of its approval authority.

The authority to grant Zoning variances is vested with
the local zoning board of adjustments. N.J.S.A. 4O:55D-70. A
local zoning board of adjustments consists of seven regular
members and not more than two alternate members. N.J.S.A.
40:55D-69. The members and alternate members of local zoning
boards of adjustments would be deemed a "local government
officer."

MEMBERS OF AUTHORITIES

Members of an independent municipal, county, or
regional authority are included within the definition of "local
government officer." N.J.S.A. 40A:9-22.3(g)(3). The term
"authority" is not defined by the Local Government Ethics Law.
However, statutes should be construed in harmony with other
statutory schemes. Lobada v. Clark Tp., 40 N.J. 424, 435 (1963).
The Legislature has previously enacted the Local Authorities
Fiscal Control Law, N.J.S.A. 4OA:5A-1 et seq., L. 1983, c. 313.
This legislation was enacted to strengthen the existing system of
State oversight of local financial operations. N.J.S.A. 4OA:5A-2;
Senate County and Municipal Government Committee Statement to
Assembly No. 144 enacted as L. 1983, c. 313. This legislation
is also administered by the Local Finance Board, N.J.S.A. 40A:5A-4,
N.J.S.A. 40A:5A-5.

The Act defines the term "Authority" as,

a body, public and corporate, created by one
or more municipalities or counties pursuant to
any law authorizing that creation, which law
provides that the public body so created has
at least the following powers:

(1) To adopt and use a corporate seal;

(2) To sue and be sued;

(3) To acquire and hold real or personal property
for its purposes; and

(4) To provide for and secure the payment of its
bonds or other obligations, or to provide for
the assessment of a tax on real property
within its district, or to impose charges for
the use of its facilities, or any combination
thereof;

but shall not include any public body for
which federal or State fiscal controls
differing from those imposed by this act have
been explicitly established by law, but only
to the extent of that difference. [N.J.S.A.
40A:5A-3).

Included within the scope of the Act are a wide variety of local
authorities.

The legislation is intended to... apply to all
autonomous public bodies ... (created) by
counties or municipalities, which are
empowered to issue bonds to impose facility or
service charges, or to levy taxes in their
districts. This would encompass most
autonomous local authorities (sewerage, water,
parking, port, recreation, county improvement,
etc.) and special tax districts (fire
districts, garbage districts, street light
districts, etc.). Authorities which are
subject to differing State or federal
financial restrictions are exempted, but only
to the extent of that difference. This would
exempt, for example, local housing authorities
which are dependent upon federal subsidies and
must adhere to federal requirements to qualify
for those subsidies. With respect to State
requirements, the Atlantic County Improvement
Authority for example, would be exempt to the
extent of the special State restrictions
imposed on its use of luxury tax funds.
(Senate County and Municipal Government
Committee Statement to Assembly No. 144
enacted as L. 1983, c. 313].

Thus, any "authority" which is an "authority" within the scope of
the Local Authorities Fiscal Control Law, N.J.S.A. 40A:5A-1 et
seq., would also be within the scope of the Local Government Ethics
Law, N.J.S.A. 40A:9-22.1 et seq., and the members of these
"authorities" would be considered as a "local government officer"
for purposes of the latter Act.

While not all-inclusive, the following "authorities"
would be considered as "local government agencies:" Beach Erosion
Control Districts, N.J.S.A. 40:68-27 et seq.; County Bridge
Commission, N.J.S.A. 27:19-26 et seq.; County Improvement
Authorities, N.J.S.A. 40:37A-1 et seq.; County Recreation
Authorities, N.J.S.A. 40:37B-1 et seq.; County Transportation
Authorities, N.J.S.A. 40:35B-1 et seq.; Fire Districts; N.J.S.A.
40A:14-70 et seq.; Incinerator Authorities, N.J.S.A. 40:66A-1 et
seq.; Local Housing Authorities, N.J.S.A. 55:14A-1 et seq.;
Municipal Port Authorities, N.J.S.A. 40:68A-29 et seq.; Municipal
Utility Authorities, N.J.S.A. 40:148-1 et seq.; Parking
Authorities, N.J.S.A. 40:11A-1 et seq.; Pollution Control Financing
Authorities, N.J.S.A. 40:37C-1 et seq.; Port Authorities, N.J.S.A.
40:68A-1 et seq.; Redevelopment Agencies N.J.S.A. 40:55C-1 et seq.;
Seaquarium Authorities, N.J.S.A. 40:54A-1 et seq.; Sewerage
Authorities, N.J.S.A. 40:14A-1 et seq.; Solid Waste Management
Authorities, N.J.S.A. 40:66A-32 et seq., and Water Districts,
N.J.S.A. 40:62-105.1 et seq.

MANAGERIAL EXECUTIVE
AND
CONFIDENTIAL EMPLOYEE

The 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.' P.L. 1941, c.l00 (C.
34:13A-3), but shall not mean any employee of a school district or
member of a school district." 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, except that in any school district
this term shall include only the
superintendent or other chief administrator,
and the assistant superintendent of the
district. [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)].

Under the Employer-Employee Relations Act, these
individuals are excluded from membership in the local collective
bargaining unit comprised of local public employees. N.J.S.A.
34:13A-5.3. The underlying purpose of this exclusion is that
"managerial executives" and "confidential employees" have access to
highly confidential labor relations information which places
persons in these positions in an intolerable conflict of loyalties
if they were to be part of a collective bargaining unit. Wayne Tp.
v. AFSCME, Council 52, 220 N.J. Super. 340, 346 (App. Div. 1987)
(Wayne Township Deputy Clerk a "confidential employee"). In
incorporating a labor relations standard into the Local Government
Ethics Law, the Legislature was attempting to adopt an approach
which would help identify persons of a high level with policymaking
responsibilities.

Neither the Employer-Employee Relations Act nor PERC's
regulations, N.J.A.C. 10:1-1.1 et seq., provide a "listing" of
those positions in local government which are deemed occupied by a
"managerial executive" or a "confidential employee." Rather, the
determination of who is a "managerial executive" or "confidential
employee" is fact sensitive. See e.g., In the Matter of Township
of Clark, 11 NJPER 283 16104 (1985), (Township construction
official not a managerial executive).

Where a local government agency has entered into a
collective bargaining agreement that agreement may exclude certain
individuals from the bargaining unit as a "managerial executives"
or "confidential employees." While not controlling, there is a
presumption that these "managerial executives" and "confidential
employees" are "local government officers" for purposes of the
Local Government Ethics Law. Further, this fact sensitive
determination does not remain static, as the classification or
nonclassification of certain positions as "managerial executives"
or "confidential employees" is subject to challenge and review by
PERC. See, Wayne Tp. v. AFSCME Council 52, supra. Thus, in the
event that PERC or the Appellate Division in reviewing a PERC
decision concludes that a particular position in a specific
municipality is included or excluded as a "managerial executive" or
a "confidential employee," this determination necessarily affects
the presumption of whether the incumbent is a "local government
officer" pursuant to N.J.S.A. 40A:9-22.3(g)(4) of the Local
Government Ethics Law.

However, while the Employer-Employee Relations Act is
applicable statewide, we are advised by PERC's staff that a
majority of the State's local government employees have not availed
themselves of the right to enter into collective bargaining
agreements. In the absence of a collective bargaining agreement it
is very difficult to determine specifically which persons are
deemed to be "managerial executives" or "confidential employees" in
a particular unit of local government. Therefore, it is
appropriate to examine whether PERC has provided any general
guidance to make this determination.

As previously indicated, a "managerial executive" is a
person "who formulates management policies or 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-32.3(f). PERC has established guidelines for
determining whether a person formulates management policy and
directs its effectuation.

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 or its means of
effectuation of these 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 exercise. (Boro. of Montvale, 6
NJPER 507, 508-09 11259 (1980)].

Thus, the determination as to whether a person is a "managerial
executive" requires an examination of the employee's position in
the local agency's hierarchy, the employee's job function and
responsibilities, and the amount of individual discretion exercised
by the employee. The analysis of these three factors is
necessarily a very individualized determination.

In examining the interplay of these three factors, PERC
has rendered numerous fact sensitive decisions determining that
certain individuals in certain positions were "managerial
executives:" Municipal Police Chief, City of Jersey City, 11 NJPER
16163 (1985); Borough Superintendent of Public Works, Boro. of
Madison, 11 NJPER 1116032 (1985); Assistant County Treasurer,
County of Union, Docket No. CU-32, PERC No. 48 (1970); Health
Officer, Town of Kearny, 14 NJPER 19282 (1988); Deputy Fire
Chiefs, City of Newark, 7 NJPER 12213 (1981); Deputy Chiefs of
Police, City of Newark, 7 NJPER 11214 (1981), Chief of Fire Signal
Operations and Chief of Fire Signal System Maintenance, City of
Newark, 10 NJPER 15243 (1984); and Borough Treasurer, Boro. of
Fairlawn, 17 NJPER 22018 (1990).

In contrast, PERC has determined that the following are
not "managerial executives:" Fire Marshal and Fire Inspector,
Cherry Hill Bd. of Fire Commissioners, 13 NJPER 18225 (1987);
Deputy Police Chief, Bayonne City Police Department, 13 NJPER
18199 (1987) and City of Newark, 12 NJPER 17192 (1986); Deputy
Fire Chiefs, Bloomfield Tp., 12 NJPER 17098 (1986); Construction
Official, Tp. of Clark, 11 NJPER 16104 (1985); Assistant Municipal
Engineer, Assistant Engineer, Assistant Project Coordinator,
Assistant Supervisor of Refuse Collection, Supervising Engineering
Draftsman and Chief Clerk, City of East Orange, 10 NJPER 15086
(1984); Lifeguard Captain, Avon Boro., 3 NJPER 373 (1977); Zoning
Officer, Boro. of Leania, 12 NJPER 17186 (1986); Chief Clerk of
County Welfare Board, Gloucester County Welfare Bd., 9 NJPER 14126
(1983); County Welfare Board's Field Office Supervisors, Essex
County Welfare Bd., 6 NJPER 11213 (1980); Police Sergeants, Tp. of
Hanover, Docket No. RO-49, E.D. No. 41 (1971); Library Director and
Tax Assessor, Town of Kearny, supra; Police Captains, Tp. of
Montville, 13 NJPER 18138 (1987); and Deputy Warden, Essex County
Bd. of Chosen Freeholders, 3 NJPER 1155 (1976).
As may be noted from the above, PERC has seemingly taken
inconsistent positions regarding certain positions, e.g., Deputy
Fire Chiefs and Deputy Police Chiefs. However, this
"inconsistency" reflects that the determination as to whether a
person is a "managerial executive" or not is a fact sensitive
determination. Accordingly, beyond the general guidance contained
above and in the absence of a collective bargaining agreement, the
determination of whether a person is a "managerial executive,"
requires a case-by-case analysis of the specific facts of each
position arguably occupied by a "managerial executive" or
"confidential employee."

In turning to "confidential employees" in the absence of
a collective bargaining agreement, the determination as to whether
a person is a "confidential employee" also requires a case-by-case
analysis. PERC has narrowly construed the term "confidential
employee." County of Essex, 17 NJPER 256, 257 22118 (1991). The
"key" to status as a confidential employee "is an employee's access
to, and knowledge of, materials used in labor relations processes
including contract negotiations, contract administration, grievance
handling and the 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 16179 (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 applying this case-by-case analysis the following have
been found to be "confidential employees:" Township Deputy Clerk,
Wayne Tp. v. AFSCME Council 52,supra; Fire Department
Administrative Assistant, Cherry Hill Bd. of Fire Commissioners, 13
NJPER 18225 (1987); Police Captain, Tp. of Springfield, 11 NJPER
16061 (1985); Secretary to County's Superintendent of Parks,
Middlesex County, 10 NJPER 15180 (1984); Personal Secretary to
City Engineer, City of East Orange, 10 NJPER 15086 (1984);
Assistant County Treasurer, County of Union, supra; Administrative
Secretary to County Director of Health Department, County of Essex,
14 NJPER 19279 (1988); Secretary to Township Chief of Police,
Monroe Tp., 13 NJPER 18039 (1986); Township Bookkeeping Machine
Operators, Tp. of Scotch Plains, 9 NJPER 14270 (1983); Assistant
County Attorneys assigned to Finance-Employment Section, Essex
County, 9 NJPER 14239 (1983); Clerk to Utilities Authority who
attended executive sessions of the Authority, Western Monmouth
Utilities Authority, 8 NJPER 13061 (1982); Library's Principal
Account Clerk and Secretary to Library Director, Linden Free Public
Library, 8 NJPER 13031 (1981); Town Clerk, Assistant Town Clerk,
and Town Treasurer, Town of Kearny, 14 NJPER 19282 (1988); and
Borough Clerk, Boro. of Fairlawn, supra.

The following have been found not to be "confidential
employees:" Township's Chief Loan Advisor, City of Orange Tp., 11
NJPER 16115 (1985); Director and Assistant Director of Public
Health Nursing Services, Jersey City, 6 NJPER 11132 (1980); Tax
Collector and Assistant Tax Collector, Town of Kearny, supra;
Library's Clerk Stenographer, Linden Free Public Library, supra.

Therefore, the determination as to whether a person is a
"managerial executive" or "confidential employee" requires a
case-by-case analysis. Accordingly, it is impossible in this opinion to
list every position in local government which the incumbent is a
"managerial executive" or a "confidential employee". However, we
have determined that certain positions in local government are
necessarily "local government officers" because the incumbents
clearly fall within the scope of the term "managerial executive"'
or "confidential employee." These positions include county
prosecutors, municipal attorneys, county sheriffs, members of the
boards of trustees of a municipal library or a county regional
library, and members of the boards of trustees of a county college.
It should be noted that in the case of the boards of trustees of
municipal library and the boards of trustee of a county college, an
ex officio member of each of these boards is' a school official.
N.J.S.A. 40:54-9 (a Board of Trustees of a Municipal Library
includes as an ex officio member the local superintendent of
schools, a school principal, or the president of the board of
education.); N.J.S.A. 18A:64A-8 (the county superintendent of
schools is a member of the Board of Trustees of a County College.)
These ex officio members and any other ex officio members of "local
government agencies," have no choice as to whether they will serve
on a "local government agency" in which they are an ex officio
member. In these circumstances, it would be inappropriate to
conclude that they are subject to the restrictions and requirements
imposed upon "local government officers". See Attorney General
Opinion 91-0039. Rather, these individuals are subject to those
ethical restrictions or requirements imposed upon them as a result
of position or employment they hold, which resulted in their ex
officio appointment. (e.g. the President of the School Board is
subject to the Local Board of Education's ethical restrictions.)
Accordingly, it is not appropriate to subject ex officio
individuals to a dual, and perhaps overlapping, ethical systems.

CONCLUSION

As discussed above, it is not possible to provide a
listing of every "local government officer" in a local government
agency. This determination to a large extent is a fact and legally
specific determination. In particular, except as noted above, a
case-by-case approach is necessary in determining who is a
"managerial executive" or a "confidential employee." If the Local
Finance Board has additional questions concerning whether a
specific position in local government is a "local government
officer," the matter should be brought to our attention.

Very truly yours,

ROBERT J. DEL TUFO
Attorney General

 

By:________________________________
John J. Chernoski
Senior Deputy Attorney General

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