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Re: 91-0134: Independent Local Government Agency
Attorneys as "Local Government Officers"
pursuant to the Local Government Ethics Law.

Dear Deputy Commissioner Skokowski:

You have requested advice as to whether an attorney who
is appointed to regularly provide advise and representation to an
independent "local government agency," is a "local government
officer" pursuant to the Local Government Ethics Law, N.J.S.A.
40A:9-22.1 et seq. For the below stated you are advised that an
attorney appointed to regularly provide advice and representation
to an independent "local government agency,: is a "local government
officer" pursuant to the Local Government Ethics Law and therefore,
subject to its terms, particularly the requirement of filing a
financial disclosure statement.

The Local Government Ethics Law was enacted on February
20, 1991 and became effective 90 days thereafter on May 21, 1991.
L. 1991, c. 29, 27. The purpose of the Act is to provide a
statewide method of 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).
(See Attorney General Opinion No. 91-0093 (September 20, 1991) for
a detailed description of the implementing provisions of the new
Law).

To be subject to the requirement 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 a 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. 1941, 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:9-22.3(f).

In order to understand who is a "local government
officer" the term "local government agency" should be examined. 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
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 myriad
of local government bodies and individuals. The definition is very
broad and specifically, excludes only purely advisory bodies and
school boards. Included as "local government agencies" are those
local agencies which operate independently of a county or
municipality. See Attorney General Opinion No. 91-0093 (September
20, 1991). (The opinion provides a partial enumeration of many
"local government agencies." The listing is not intended to be
all-inclusive). The members of independent local government
agencies are generally "local government officers." Ibid.

Attorneys may serve local government agencies in a
variety of capacities e.g. as a member of an agency, board,
governing body, etc.; as an employee, or as the principal legal
advisor to a local government agency. The focus of the instant
inquiry is upon the last type of activity. To a large extent the
municipal attorney or county counsel will often provide any
necessary legal advice or representation to a municipality's or
county's agencies. However, it is common for an attorney to be
appointed to represent a "local government agency," which operates
independently of the county or municipal.

We have previously determined that a municipal attorney,
is per se a "local government officer". See Attorney General
Opinion No. 91-0092 (September 20, 1991). This conclusion was
based on the determination that municipal attorneys by the nature
of their duties participate in the formulation of management
policies and exercise independent legal discretion affecting issues
of public concern. Indeed, members of the legal profession who do
no occupy traditional management positions are often considered
"policy makers". Gregory v. Ashcroft, ___ U.S. ___, 111 S.Ct.
2395, 2404, 115 L.Ed.2d 410, 427-428 (1991) (Judges were deemed to
be policy makers). An attorney who advises a public body "wields
considerable power and influence by virtue of his ability and
opportunity to interpret the law and advise on legal matters. The
force of his influence is subtle and pervasive." Lafayette v. Bd.
of Chosen Freeholders, 208 N.J. Super. 468, 474 (App. Div. 1986).
As such, we concluded that the office of municipal attorney was
necessarily a "managerial executive" and therefore a "local
government officer". Attorney General Opinion No. 91-0092
(September 20, 1991). Also, we concluded that municipal attorneys
by the nature of their position were intimately involved with the
municipality's labor relation matters. Therefore, municipal
attorney were deemed to be "confidential employees," and
accordingly "local government officers". Ibid.

There are numerous "local government agencies" which
operate as independent entities separate and distinct from a
municipality or county (e.g. fire districts, local housing
authorities, county improvement authorities.) These independent
agencies typically have broad powers necessary to effectuate their
statutory purposes including the power to employ staff and
professionals. See e.g. N.J.S.A. 40:14A-7(12) (Sewerage
Authorities). As previously noted, it is common for these
independent agencies to appoint counsel to provide necessary legal
advice and representation. An attorney whose skills are regularly
utilized to advise a local agency is generally considered to hold
an office. Planning Bd. Tp. of West Milford v. Tp. Counsels of
West Milford, 123, N.J. Super. 135, 142 (Law Div. 1973); Lehrhaupt
v. Flynn, 140 N.J. Super. 250 (App. Div. 1976), affirmed 75 N.J.
459 (1978). It follows for the reasons expressed in Attorney
General Opinion No. 91-0092 (September 20, 1991) that an attorney
appointed by an independent local government agency, to provide
regular legal advice and representation to the agency are deemed
"local government officers" for purposes of the Local Government
Ethics Law. This conclusion is consistent with the intent of
Senator Paul Contillo, the principal sponsor of the Local
Government Ethics Law. Scarinici, Ethics Enforcement: A New Role
for the Local Finance Board, Kraft & Mchanimon Municipal Bond News,
p. 2 (June 1991).

However, an attorney who regularly advises a local agency
as its "chief legal officer" must be contrasted with an attorney
who serves the agency in a special, limited capacity (e.g. special
labor counsel, bond counsel, or to handle a particular tort
action). This latter representation is more akin to an independent
contractor and, in our view, would not be subject to the new Ethics
Law. See Attorney General Opinion No. 91-0092 (September 20,
1991). In determining whether an attorney services a local agency
as its chief legal officer or in a special limited capacity, it is
appropriate to examine the resolution or other document which
authorized the appointment. These may be occasions when this
examination does not resolve the matter. In these circumstances
you should seek the guidance of this office.

Therefore, you are advised that an attorney appointed to
provide regular legal advice to an independent entity, which is a
"local government agency," is a "local government officer" for
purposes of the Local Government Ethics Law, N.J.S.A. 40A:9-22.1 et
seq., and is subject to the requirements of the Law, in particular
to the requirement of filing a financial disclosure statement.

Very truly yours,

ROBERT J. DEL TUFO
ATTORNEY GENERAL

By:___________________________________
John J. Chernoski
Senior Deputy Attorney General

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