| March 4, 1993
Barry Skokowski,
Sr.
Deputy Commissioner
Department of Community Affairs
CN 800
Trenton, New Jersey 08625-0800
Re: 93-0022:
Whether a Local Ethics Board may
Require "Local Government Employees" to file
Financial Disclosure Statements
Dear Deputy Commissioner
Skokowski:
You have requested
advice as to whether a local ethics board
may require "local government employees" to file annual
financial
disclosure statements. For the below stated reasons you are
advised that pursuant to the Local Government Ethics Law, N.J.S.A.
40A:9-22.1 et seq., the requirement for filing annual financial
disclosure forms applies only to "local government officers"
and a
local ethics board is without authority to extend the requirement
for filing financial dis-closure statements to "local government
employees."
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
standard governing the ethical conduct of local government officers
and employees and requiring annual financial disclosure by local
government officers. N.J.S.A. 40A:9-22.2(e). To effect this
purpose the Legislature has established a statewide Code of Ethics
applicable to local government officers and employees. N.J.S.A.
40A:9-22.5. In the absence of action by the local government to
establish a local ethics board, the Code of Ethics is enforced by
the Local Finance Board in the Department of Community Affairs.
N.J.-S.A. 40A:9-22.4. Further, the Local Finance Board exercises
appellate jurisdiction over the decisions of the local ethics
boards. N.J.S.A. 40A:9-22.18, N.J.S.A. 40A:9-22.24.
A local government
may elect to administer and enforce the
Code of Ethics established by the Local Government Ethics Law.
N.J.S.A. 40A:9-22.13, N.J.S.A. 40A:9-22.19. Specifically, the
local government may establish a local ethics board. N.J.S.A.
40A:9-22.13(a), N.J.S.A. 40A:9-22.19(a). The local ethics board
is
required to promulgate by resolution a code of ethics for all
"local government officers and employees" serving the
local
government. The ethics code promulgated by the local ethics board
shall either be identical to the State ethics code provided by
N.J.S.A. 40A:9-22.5 or more restrictive than the State ethics code,
subject to the approval of the Local Finance Board. N.J.S.A.
40A:9-22.15, N.J.S.A. 40A:9-22.21.
In addition to
adhering to the ethical requirements set forth
by the State code or any applicable local code, 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
the officer's source of income, certain business interests, and
real estate holdings in New Jersey. Ibid. The requirement for
filing an annual financial dis-closure statement is applicable only
to "local government officers" and not to "local
government
employees." Ibid.
While the Local
Government Ethics Law specifically permits a
local ethics board to promulgate a code of ethics more re-strictive
than the State code of ethics, the Law does not similarly permit
a
local ethics board to go beyond the legis-lative mandate and
require persons, other than "local govern-ment officers",
to file
annual financial disclosure statements. In Attorney General
Opinion No. 91-0136 (May 19, 1992) we stated that the Local
Government Ethics Law had preempted the field of local ethics and
that a local government may not regulate the area in a manner
inconsistent with the State law.
It follows that
a local ethics board may not similarly ex-ceed
the legislative mandate. While the requirement for local
government officers to file annual financial disclosure is one of
the purposes of the Local Government Ethics Law, the dis-closure
requirement is separate and distinct from the Code of Ethics.
N.J.S.A. 40A:9-22.5, N.J.S.A. 40A:9-22.6. The Legislature in
specific terms has permitted a local ethics board to promulgate
a
local code of ethics more restrictive than the State code. N.J.S.A.
40A:9-22.15, N.J.S.A. 40A:9-22.21. The Legislature did not
similarly permit a local ethics board to require "local government
employees" to file financial disclosure forms.
Further, one
of the purposes of the Local Government Ethics
Law is to provide for the uniform application of the Law. N.J.S.A.
40A:9-22.2(e). To permit each individual local ethics board to
extend the requirements of the Law, beyond what the Legislature
has
specifically authorized, does not promote the uniform application
of the Local Government Ethics Law.
For the above stated reasons, you are advised that, absent a
legislative change, a local ethics board is without authority to
require "local government employees" to file financial
disclosure
statements. Rather, the Legislature in enacting the Local
Government Ethics Law has limited the requirement for filing of
financial disclosure statements to "local government officers."
Very truly yours,
ROBERT
J. DEL TUFO
ATTORNEY GENERAL OF NEW JERSEY
By:_________________________________
John J. Chernoski
Deputy Attorney General
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