Executive Com'n on Ethical Standards Re: Appearance of Rutgers Attorneys, In re
| Decision Date | 03 February 1988 |
| Citation | 222 N.J.Super. 482,537 A.2d 713 |
| Parties | , 45 Ed. Law Rep. 163 In re Determination of EXECUTIVE COMMISSION ON ETHICAL STANDARDS RE: APPEARANCE OF RUTGERS ATTORNEYS before the Council on Affordable Housing on Behalf of the Civic League, Plaintiffs. |
| Court | New Jersey Superior Court — Appellate Division |
John Payne and Barbara Stark, Newark, for appellants Civic League of Greater New Brunswick, Inc. (John Payne and Barbara Stark on the brief).
W. Cary Edwards, Atty. Gen., for respondent Executive Com'n on Ethical Standards (Michael R. Clancy, Deputy Atty. Gen., of counsel; Gayl R. Mazuco, Deputy Atty. Gen., on the brief).
An amicus curiae brief was filed on behalf of the Public Advocate (Alfred A. Slocum, Public Advocate; John P. Thurber, Trenton, on the brief).
Before Judges PETRELLA, DREIER and BAIME.
The opinion of the court was delivered by
PETRELLA, P.J.A.D.
The Civic League of Greater New Brunswick, Inc. (League) (previously known as the Urban League) filed a notice of appeal from an advisory opinion 1 issued by the Executive Commission on Ethical Standards (Commission) (see N.J.S.A. 52:13D-21) relating to its representation by certain professors employed by Rutgers, The State University (Rutgers). The advisory opinion had been sought by the League as a result of the transfer of certain Mt. Laurel 2 cases to the Council on Affordable Housing (COAH) created by the Fair Housing Act ( N.J.S.A. 52:27D-301 et seq.) which became effective on July 2, 1985. We affirm the determination of the Commission.
The COAH is in the Executive Branch of State Government and was established "in, but not of the Department of Community Affairs." N.J.S.A. 52:27D-305a. The designation "in, but not of" is a result of the requirement in the 1947 New Jersey Constitution, Art. V, § 4, par. 1, which mandates that all executive and administrative offices are to be allocated to one of the "principal departments," except for "temporary commissions for special purposes." 3 See Richman v. Neuberger, 22 N.J. 28, 33, 123 A.2d 217 (1956) and Richman v. Ligham, 22 N.J. 40, 49, 123 A.2d 372 (1956).
Since 1983 the League has been represented before the courts in Mt. Laurel litigation against various municipalities in large part by attorneys on the staff of the Rutgers Law School Constitutional Litigation Clinic (Clinic) of Rutgers who are either law school professors or Clinic staff attorneys employed by Rutgers.
As a result of the transfer of some of the disputes with municipalities in the League's Mt. Laurel case to the COAH, see Hills Development Co. v. Bernards Tp., 103 N.J. 1, 19-20 and 65, 510 A.2d 621 (1986), the League requested an advisory opinion on June 4, 1986 from the Commission as to:
whether certain Rutgers Law School professors and staff attorneys ... may continue to represent the Civic League of Greater New Brunswick ... in connection with its claims against the municipalities of Cranbury, Monroe, Piscataway, South Brunswick, and South Plainfield (hereafter referred to collectively as 'the Mt. Laurel matters') which have been transferred from the Superior Court to the Council on Affordable Housing....
There is no dispute that the League is a private, nonprofit organization. It is conceded that the COAH is a "State agency" as defined in N.J.S.A. 52:13D-13a and that Rutgers' employees in the Clinic are "employees of Rutgers." The League asserts that the Rutgers' employees "are receiving no fee in connection with their representation of the Civic League," and have no "personal or pecuniary interest" in the outcome of the League's litigation. The State does not suggest that any "financial" or "actual" conflict is present here. However, we note that the court recently decided Urban League of Greater New Brunswick, et al v. Township Committee of the Township of Cranbury, 222 N.J.Super. 131, 536 A.2d 287 (App.Div.1987), which held on the League's appeal that attorneys' fees may be awardable under the federal Civil Rights Act. 4
In its brief on this appeal the League argues that there is no violation of the New Jersey Conflicts of Interest Law, N.J.S.A. 52:13D-12 et seq. (Conflicts Law) by the Rutgers' employees who are its attorneys because there is no actual conflict. The League argues that the teach in the law school clinic and the representation arises in connection with appropriate educational duties; that Rutgers' teachers should be permitted to continue to represent the League before the COAH because of the unique circumstances of the Mt. Laurel litigation, and it would be neither just nor fair to deprive the League of their services as attorneys.
In an amicus curiae brief the Public Advocate argues that representation of the League by Rutgers' Clinic attorneys in proceedings before the COAH does not violate the Conflicts Law because such representation is outside the scope of conduct regulated by that law; that Clinic professors and staff attorneys are not "State employees" for purposes of the Conflicts Law, and proceedings before the COAH are brought "on behalf of a municipality" and thus meet an exemption from the prohibitions of the Conflicts Law.
In a February 6, 1987 letter, the Commission determined that "it would be a violation of § 16(b) [of the Conflicts Law] 5 for [the Rutgers employees] to continue with the representation of the Civic League of Greater New Brunswick before the Council on Affordable Housing." The letter also suggested that if there was dissatisfaction, the appropriate route for the Rutgers employees to take was to seek a legislative change. The Commission noted at its January 21, 1987 meeting that in Advisory Opinion No. 4 (December 15, 1972) it had concluded that "Rutgers may properly be termed an 'independent State instrumentality' and thus within the Conflicts [Law] definition of 'State agency.' "
I
Although the parties to this appeal seem to accept the "opinion" of the Commission as a final agency action from which an appeal may be taken, that position is not binding upon us. Fivehouse v. Passaic Valley Water Comm'n, 127 N.J.Super. 451, 457-458, 317 A.2d 755 (App.Div.1974), certif. den. 65 N.J. 565, 325 A.2d 699 (1974). Opinions of an administrative agency on which no action is based do not constitute "final agency action" which would be subject to appeal as of right. N.J. Civil Service Ass'n v. State, 88 N.J. 605, 611-612, 443 A.2d 1070 (1982) (); Exxon Corp. v. Tp. of E. Brunswick, 192 N.J.Super. 329, 336, 470 A.2d 5 (App.Div.1983), certif. den. 96 N.J. 312-313, 475 A.2d 601 (1984) (); Rutherford Lodge No. 547 v. Hock, 1 N.J.Super. 223, 227-228, 63 A.2d 893 (App.Div.1949) (). The League should have sought leave to appeal pursuant to R. 2:2-4 and R. 2:5-6(a). We could, therefore, dismiss the appeal pursuant to R. 2:8-2. However, on our own motion we grant leave to appeal nunc pro tunc because of the public policy nature of the conflict of interest law question presented.
II
On June 2, 1971 the most recent version of the Conflicts Law, then limited to and applicable to persons in the executive and legislative branches of government, was approved. L. 1971, c. 182. It became effective on January 11, 1972, and replaced the predecessor statute which it repealed, i.e., N.J.S.A. 52:13D-1 et seq. (L.l967, c. 229). Certain additional amendments were enacted on January 15, 1988 when the Governor signed L.l987, c. 432. These amendments made the scope of the law even broader.
The focus of the dispute on this appeal centers on a provision of the Conflicts Law contained in N.J.S.A. 52:13D-16b which provides in pertinent part as follows:
b. No State officer or employee or member of the Legislature ... shall represent, appear for, or negotiate on behalf of ... any person or party other than the State in connection with any cause, proceeding, application or other matter pending before any State agency.... (emphasis added)
"State officer or employee" is defined in N.J.S.A. 52:13D-13b as: "any person, other than a member of the Legislature, holding an office or employment in a State agency...." (emphasis added).
N.J.S.A. 52:13D-16c exempts from the scope of subsection 16b appearances "before any court of record of this State," and before certain specified State agencies, including the Division on Civil Rights, the Workers Compensation Division and others which do not apply here. The COAH is not among the agencies specified in this section.
The term "State agency" is defined, insofar as pertains to the Executive Branch of the State Government, as:
... any of the principal departments in the Executive branch of the State Government, and any division, board, bureau, office, commission or otherinstrumentality within or created by such department, ... and any independent State authority, commission, instrumentality or agency.... [ N.J.S.A. 52:13D-13a] (emphasis added)
Rutgers was designated "the instrumentality of the State for the purpose of operating the state university" by L.l956, c. 61, effective June 1, 1956 ( N.J.S.A. 18A:65-2). This law constituted Rutgers as a "full-fledged State agency," Rutgers v. Piluso, 60 N.J. 142, 157, 286 A.2d 697 (1972); "an arm of the State," Trustees of Rutgers College in N.J. v. Richman, 41 N.J.Super. 259, 284, 125 A.2d 10 (Ch.Div.1956); "an alter ego of the State," id. at 298, 125 A.2d 10 and "a public instrumentality for the accomplishment of a public purpose, i.e. public higher education the State." Id. at 299, 125 A.2d 10. See also Rutgers v. Kugler, 110 N.J.Super. 424, 427, 265 A.2d 847 (Law Div.1970), aff'd o.b. 58...
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