| March 4, 1993
Barry Skokowski,
Sr.
Deputy Commissioner
Department of Community Affairs
CN 800
Trenton, New Jersey 08625-0800
Re: 93-0023:
Whether a Local Ethics Board may
require additional information to be included on
the Annual Financial Disclosure Statement or to
Prescribe a Financial Disclosure Statement Form.
Dear Deputy Commissioner
Skokowski:
You have requested
advice as to whether a local ethics board
may require "local government officers" to include additional
information on the annual financial disclosure statement form
beyond what is required by the Local Government Ethics Law,
N.J.S.A. 40A:9-22.1 et seq., or to prescribe a financial disclosure
statement form. For the below stated reasons you are advised that
a local ethics board may not require a "local government officer"
to provide additional information on the annual financial
disclosure statement form beyond what is required by the Local
Government Ethics Law and a local ethics board may not prescribe
a
financial disclosure statement form.
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 Local Finance Board
is required to prescribe a financial disclosure form that "local
government officers" are required to annually file. N.J.S.A.
40A:9-22.6(b).
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 additional information to be con-tained on the annual
financial disclosure form or to prescribe a financial disclosure
statement form. 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. However, the Legislature
in specific terms 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 additional
information to be included on the annual financial disclosure
statement or to prescribe a financial disclosure statement form.
Rather, the Legislature has spe-cifically delegated to the Local
Finance Board the responsi-bility to prescribe the financial
disclosure statement form that all "local government officers"
must
annually complete. This form is intended to gather from "local
government officers" the information that the Legislature has
required disclosure. To the extent that it is necessary to include
on the form, requests for certain identification information (e.g.
name, governmental position, local government served, etc.), the
Local Finance Board in prescribing the form has such authority in
order to effectuate the legislative purpose of effective financial
disclosure by "local government officers". N.J.S.A. 40A:9-22.7(g),
see also Matter of Loans of New Jersey Property Liability, 124
N.J. 69, 79 (1991).
Further, one
of the purposes of the Local Government Ethics
Law is to provide for the uniform application of the Law, including
the financial disclosure requirements. N.J.S.A. 40A:9-22.2(e). To
promote uniformity, as noted above, the Local Finance Board is
charged with prescribing the financial disclosure statement form.
To permit each individual local ethics board to require additional
information to be disclosed by "local government officers"
or to
prescribe its own local financial disclosure statement form, does
not promote uniformity.
For the above stated reasons, you are advised that, absent a
legislative change, a local ethics board is without authority to
require "local government officers" to provide additional
information on the annual financial disclosure statements and a
local ethics board may not prescribe a disclosure statement form.
Rather, the Legislature in enacting the Local Government Ethics
Law
has specifically indicated the information that is required to be
included on the financial disclosure statements and specifically
delegated to the Local Finance Board the authority to prescribe
the
form of these statements.
Very
truly yours,
ROBERT
J. DEL TUFO
ATTORNEY GENERAL OF NEW JERSEY
By:_________________________________
John J. Chernoski
Deputy Attorney General
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