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Staying out of the “Star Chamber”:  Local Government Ethics Law

Two decades ago, the New Jersey Legislature passed comprehensive legislation that standardized local government ethics law statewide.  The law is designed to provide for a fair process, one that is reasonably separate from local politics and the local governing body.  When the process is administred correctly, it protects an elected official and those that he or she represents from political use of a legal process.  Tim Howes has done extensive research and has taught local government ethics law to newly elected officials.

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Local politics are a joy.  Once a candidate wins an election, he or she takes the oath of office, then is warmly welcomed by his or her colleagues on the governing body.  Everyone drinks hot cocoa, joins hands, sings “Kumbayah” and work together for the best interests of those that elected them.  Well, perhaps that is an overly optimistic apprasial.

The voice of the electorate is not the only force at work in local government.  The heavy hand of those who hold and wield local power often attempts to trump the legitimate work done by elected officials.  Accusations fly, and threats are made to get many elected officials to fall into line.  Many times there are allegations of unethical conduct.  Local government ethics law provides a framework in which a town or county can handle ethics questions without creating a Kangaroo Court or a Star Chamber or a hybrid of the two.

First and foremost, the local governing body (the borough council, township committee, city council, mayor etc) is NOT the arbitor of ethics.  That authority lies with the State of New Jersey in the first instance.  In passing the comprehensive ethics law, the state took exclusive jurisdiction over local government ethics.  Unless the governing body has opted out of the state system, local officials are subject to the statutory ethics rules.  Ethics complaints for those elected and appointed officials subject to state jurisdiction are filed with the Local Finance Board, a division of the Department of Community Affairs.  An accused official is entitled to due process, such as notice, hearing, counsel and a confidential process.  Appeals from determinations of the Local Finance Board go to the Office of Adminstative Law, where the official is entitled to a full hearing.

A county or municipality may opt out of the exclusive state jurisdiction, but only if it complies with state ethics law.  To opt out, the county or municipality must establish by ordinance a local ethics board.  The governing body appoints the members of the board and provides the resources the board needs to do its work.  Other than establishing the board, appointing its members and providing resources, the mayor and governing body have no role in the ethics process.  The board then establishes a local ethics code, which must be submitted to the Local Finanace Board for approval.  The board then handles any complaints in a confidential manner, and it handles requests for advisory opinions in a confidential manner.  And again, the accused official is entitled to due process.

One thing is clear:  The law does not intend for the local political process to control the local ethics process.  The law provides for at least one degree of separation between the ethics process and the political process.  That separation helps protect elected and appointed officials from the tyranny of a governing majority who might use the ethics process for their own political ends. 

If you are a local elected official who wants to establish local government ethics rules and a local government ethics process, you should obtain independent legal advice.  There are nightmare scenarios for those governing bodies who do not comply with local government ethics law.  For example, a borough council might passe an ethics ordinance or Standard of Conduct ordinance that is out of compliance with local government ethics law?  Specifically, a borough council might pass an ordinance that defined the local ethics rules and provided that the borough council would control the ethics process.  If a complaint were prosecuted in such a manner, it could well cause the legal exposure for you and for the taxpayers you represent.

When the ethics process is used for political ends, everyone loses.  If you are accused, you should seek independent legal advice.  If you want to do ethics reform, then you should seek independent legal advice. 

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