Ethics Expert Disagrees
Monmouth County Republican Chairman John O. Bennett said that a State Supreme Court Opinion written in 2000 by Justice Daniel J. O’Hern that states that the positions of Borough Attorney and Borough Administrator may not be held by the same person does not apply to his job in Oceanport.
In re ADVISORY COMMITTEE ON PROFESSIONAL ETHICS, DOCKET NO. 18-98, the Court ruled 5-2, to affirm an ACPE opinion that Gregory C. Hart could not serve the Bergen County Borough of Old Tappan as both attorney and administrator.
We respect the wishes of the Borough to engage for its day to day management an attorney in whom it has reposed great trust and confidence. Likewise, we respect the attorney who is certain that his integrity would assure an unfettered exercise of judgment in either capacity. Yet we must fashion a rule that will apply equally as well in more demanding circumstances, as in a fast-growing suburban community. It asks too much for an individual to be able to give objective advice to the municipality without being materially limited by the “lawyer’s own interest” as the subject of the inquiry.
For these reasons, we hold that one attorney may not hold both the position of municipal attorney and clerk-administrator for the same municipality. As modified, the advisory opinion of the ACPE is affirmed.
In a phone interview on Tuesday, Bennett said he became aware of the Opinion after his appointment as Acting Administrator in Oceanport earlier this month, but that he did not believe it would prevent him from holding both positions on a permanent basis.
“The Opinion was advisory,” Bennett said, “it applies to that situation in Old Tappan and their ordinances that define the roles of attorney and administrator. If necessary, I can recommend that Oceanport adjust their ordinances.”
Bennett noted that a New Jersey Statute , NJSA 40:81-11, which the Court cited in the Opinion, only prohibits one person from holding the offices of Borough Attorney and Borough Auditor. The Statute allows for the same person to serve as borough attorney and borough administrator.
But in the Opinion, O’Hern wrote that the Supreme Court trumps the Legislature in matters of the “ethical propriety of an attorney’s conduct.”
Although N.J.S.A. 40:81-11 expressly allows the appointment of one person to the positions of attorney and clerk or manager, that is not the end of the inquiry. Resolution of the ethical propriety of an attorney’s conduct “is within the exclusive province of the Supreme Court.” Pickett v. Harris, 219 N.J.Super. 253, 260, 530 A.2d 319 (App.Div.1987). “[I]t is safe to say that generally, almost without exception, no branch of government has the power to authorize, either explicitly or implicitly, conduct by attorneys that violates the ethical standards imposed by the judiciary.” In re Opinion No. 621 of the Advis. Comm. on Prof’l Ethics, 128 N.J. 577, 590, 608 A.2d 880 (1992). Although such judicial power may interfere with governing a municipality, “[n]either the Legislature nor the Executive has any power to overrule attorney ethical standards promulgated by this Court.” Id. at 591, 608 A.2d 880 (citing In re Genser, 15 N.J. 600, 607, 105 A.2d 829 (1954)). For example, this Court has held that “[a]n attorney, his partner or associate may not be counsel to a municipality and to the county in which it is located” because of the regular interaction between the two governmental entities. In re Opinion No. 415 of the Advis. Comm. on Prof’l Ethics, 81 N.J. 318, 327, 407 A.2d 1197 (1979).
Seton Hall Law Professor Paula A. Franzese, one of the country’s leading experts in government ethics, thinks Oceanport and Bennett should make other arrangements. In a statement to MMM, Franzese said:
“There must be a separation of powers in this instance. The Borough Administrator must be able to rely on the Borough Attorney for impartial counsel on a host of matters affecting personnel and administrative functions as well as the vast array of judgment calls that must be made on a daily basis. The Borough Attorney is bound by the Rules of Professional Responsibility and must avoid all conflicts of interest. For the duties of Borough Administrator and Borough Attorney to be vested in the same person presents unavoidable conflicts of interests, concentrates too much power in one person and by definition impedes the fiduciaries duties associated with both roles.”
Franzese is the Peter W. Rodino Professor of Law at Seton Hall University. She has spearheaded ethics reform initiatives on behalf of three governors, serving as Special Ethics Counsel to Governor Richard Codey, Chair of the State Ethics Commission, Vice-Chair of the Election Law Enforcement Commission and as ethics advisor to state and local governments across the country, including Mayor Cory Booker’s administration in Newark.
Oceanport Mayor Michael J. Mahon declined to comment when asked if conversations with Bennett about holding both jobs permanently were ongoing.