ASSEMBLY, No. 2758

 

STATE OF NEW JERSEY

 

INTRODUCED FEBRUARY 27, 1997

 

 

By Assemblymen LeFEVRE and BLEE

 

 

An Act establishing a conflict of interest law for county prosecutors and employees in county prosecutors offices, authorizing the Attorney General to promulgate a code of ethics implementing the law, authorizing the Attorney General and the several county prosecutors to enforce the code, supplementing Title 2A of the New Jersey Statutes, amending P.L.1991, c.29 and repealing P.L.1964, c.168.

 

    Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

    1. This act shall be known and may be cited as the "Conflict of Interest Law for County Prosecutors.”

 

    2. The Legislative finds and declares that:

    a. In New Jersey's criminal justice system, county prosecutors and the employees of their offices perform vital and highly sensitive duties;

    b. Integrity and impartiality of county prosecutors and the employees of their offices are critical to public confidence in our criminal justice system;

    c. Public confidence in the criminal justice system is eroded whenever the public perceives that county prosecutors or their employees are not performing their duties in an impartial, professional and unbiased manner or that the private interests of county prosecutors and their employees influence the performance of those duties;

    d. Government has a duty to provide its citizens with standards by which they may determine whether the functions of county prosecutors' offices are being properly performed and a duty to apprise county prosecutors and their employees of the course of conduct which is expected of them while conducting their duties;

    e. It is the purpose of this act to foster public confidence in the criminal justice system, by establishing Statewide standards of conduct for county prosecutors and the employees of county prosecutors' offices, by affirming the Attorney General’s authority under the “Criminal Justice Act of 1970,” P.L.1970, c.74 (C.52:17B-97 et seq.) as chief law enforcement officer of the State, to promulgate and enforce a Statewide Code of Ethics for county prosecutors and the employees of their offices, by expressly authorizing the Attorney General to promulgate and enforce a Code of Ethics for County Prosecutors implementing this law, and by affirming and strengthening the Attorney General’s authority to exercise general supervision over the several county prosecutors, consistent with the status of the county prosecutors as constitutional officers, in order to secure the benefits of uniform, impartial and efficient enforcement of the criminal law and administration of criminal justice throughout the State;

    f. This law prohibits conflicts that are substantial and material or that may bring government into disrepute. This law is not intended to prohibit conduct in the normal course of government business. This law recognizes that it is appropriate for county prosecutors, as chief law enforcement officers of their respective counties, to inform the public about crime and the criminal justice system and to express opinions on matters related to crime and the administration of criminal justice, and this law is not intended to prohibit or restrict such conduct.

 

    3. As used in this act:

    a. “County prosecutor” means the county prosecutor or a person acting as county prosecutor;

    b. "Employee of a county prosecutor" means any person who is employed by a county prosecutor's office, including but not limited to assistant county prosecutors, detectives, investigators and clerical staff.

    c. "Code of Ethics” or “ethics code” means the code of ethics to be promulgated by the Attorney General pursuant to section 10 of this act.

    d. “Member of the immediate family” means the spouse of a county prosecutor or of an employee of a county prosecutor or a dependent child of the prosecutor or of an employee of a county prosecutor who resides in the same household as a county prosecutor or an employee of a county prosecutor.

    e. “Financial interest” means (1) the ownership or control of more than 10% of the profits or assets of a firm, association, or partnership, or more than 10% of the stock in a corporation for profit other than a professional service corporation organized under the "Professional Service Corporation Act," P.L.1969, c.232 (C.14A:17-1 et seq.); or (2) the ownership or control of more than 1% of the profits of a firm, association, or partnership, or more than 1% of the stock in any corporation, which is the holder of, or an applicant for, a casino license or in any holding or intermediary company with respect thereto, as defined by the "Casino Control Act," P.L.1977, c.110 (C.5:12-1 et seq.). The provisions of this act governing the conduct of individuals are applicable to shareholders, associates or professional employees of a professional service corporation regardless of the extent or amount of their shareholder interest in such a corporation.

 

    4. a. Every county prosecutor and employee of a county prosecutor shall make official decisions and take official action on a fair and impartial basis and without regard to race, color, sex, religion, age, handicap, national origin, marital status, affectional or sexual orientation, political, familial or social affiliation, or other improper consideration such as the personal interests of the prosecutor or employee.

    b. No county prosecutor or employee of a county prosecutor shall take official action in any matter if he, or a member of his immediate family, or a business organization in which he has a financial interest, has a direct or indirect personal or financial involvement that might reasonably be expected to interfere with the impartial performance of official duties or that might reasonably be expected to impair objectivity or independence of judgment.

    c. No county prosecutor or employee of a county prosecutor’s office may use an official position to secure unwarranted privileges, benefits, or advantages for any person or to impose unwarranted burdens or disadvantages on any person.

    d. No county prosecutor, employee of a county prosecutor, or member of the immediate family of a county prosecutor or of an employee of a county prosecutor shall have a financial interest in a business organization or engage in any business, transaction, or professional activity, which is in substantial conflict with the proper discharge of duties in the public interest.

    e. No county prosecutor or employee of a county prosecutor’s office shall engage in any transaction, business, trade, occupation, service or professional activity, with or without compensation, which is or which might reasonably be expected to be in substantial conflict with the proper discharge of official duties.

    f. Except in performance of official duties no county prosecutor may practice law and except as otherwise expressly authorized by the Code of Ethics promulgated by the Attorney General pursuant to section 10 of this act, no county prosecutor may engage in any other business, trade, profession or occupation, whether or not for compensation.

    g. No employee of a county prosecutor may practice law or engage in another business, trade, profession or occupation, except in the performance of official duties, except that with the approval of the county prosecutor, an employee of a county prosecutor may practice law or engage in any other business, trade, profession or occupation if the conduct is expressly authorized by the Code of Ethics promulgated by the Attorney General pursuant to section 10 of this act.

    h. No county prosecutor, employee of a county prosecutor, member of the immediate family of a county prosecutor or of an employee of a county prosecutor, or business organization in which he has a financial interest may solicit, receive or accept any gratuity, gift, favor, loan, political contribution, service, promise of future employment or other thing of value based upon an understanding, or under circumstance in which it would be reasonable to infer an understanding, that such thing of value was offered or given for the purpose of influencing the prosecutor or employee of the prosecutor, directly or indirectly, in the discharge of official duties.

    i. No county prosecutor or employee of a county prosecutor may knowingly act in any way that might reasonably be expected to create an impression or suspicion among the public having knowledge of the acts that he is engaged in conduct violative of his trust as the county prosecutor or as an employee of a county prosecutor.

    j. No county prosecutor or employee of a county prosecutor may attend any conference, convention or meeting relating to the duties and responsibilities of his position at the expense of any organization or agency other than the office of the county prosecutor unless expressly authorized by the Code of Ethics promulgated by the Attorney General pursuant to section 10 of this act.

    k. Except as authorized or required for proper performance of duties, no county prosecutor or employee of a county prosecutor may disclose any confidential information, not available to the public and acquired in the course of duties or by virtue of his public employment.

 

    5. a. No county prosecutor or employee of a county prosecutor may provide bail or bail costs to any person accused of a criminal offense except as expressly authorized by the Code of Ethics promulgated by the Attorney General pursuant to section 10 of this act.

    b. No county prosecutor or employee of a county prosecutor shall voluntarily testify as a character or reputation witness on behalf of any person accused of a criminal offense and no employee of a county prosecutor, except in the performance of official duties or in accordance with the provisions of Code of Ethics promulgated by the Attorney General pursuant to section 10 of this act, shall testify in a civil or criminal proceeding.

    c. No county prosecutor or employee of a county prosecutor shall recommend, contact or assist in obtaining counsel to represent any person accused of a criminal offense.

 

    6. a. A county prosecutor, assistant county prosecutor or investigator who is an employee of a county prosecutor shall not engage in any political activity.

    b. An employee of a county prosecutor, who is not an assistant prosecutor, detective or investigator, shall not engage in political activity unless authorized by the Code of Ethics promulgated by the Attorney General pursuant to section 10 of this act.

    c. For purposes of the section, “political activity” means:

    (1) Any candidacy for elective public or political office;

    (2) Any holding of an office in, or employment with or working on behalf of any political party, organization or club;

    (3) Any participation in any political campaign;

    (4) Any exhibiting of signs concerning political candidates on one's person, vehicle or home;

    (5) Any use of one's name in connection with any political material;

    (6) Any purchase, sale or distribution of tickets to any affair held for any political purpose whatsoever;

    (7) Any contribution to a political party or candidate;

    (8) Any soliciting or accepting of any contribution either directly or indirectly to or on behalf of any political organization or for any other political purpose whatsoever;

    (9) Any use of one's official influence to modify the political action of another; and

    (10) Any working at the polls during election time or as an election official at any time.

 

    7. A county prosecutor or employee of a county prosecutor’s office may not participate in the activities of a charitable, civic or professional organization, association or committee unless the participation is authorized by the Code of Ethics promulgated by the Attorney General pursuant to section 10 of this act.

 

    8. A county prosecutor, assistant prosecutor or a detective or investigator who is an employee of a county prosecutor shall not privately retain or be represented in personal legal affairs by any attorney who maintains an active criminal practice within the county in which the person is employed.

 

    9.  a. A former county prosecutor or former assistant prosecutor shall not appear in any criminal matter in any capacity against the State in the county by which he was employed for a period of six months from the date of termination of his public employment. This prescription does not foreclose such appearances by a law firm with which the former county prosecutor or former assistant prosecutor is associated.

    b. A former county prosecutor or former assistant prosecutor and any law firm with which he is associated shall not represent any person in any matter (1) in which he participated to any extent while acting as

a county prosecutor or an assistant prosecutor including but not limited to any aspect of investigation, trial preparation or trial; (2) for which he had any responsibility, whether exercised or not; or (3) about which he became aware of any facts or other information.

 

    10. a. The Attorney General shall promulgate a Code of Ethics for county prosecutors and employees of county prosecutors that includes the standards set forth in this act, implements this act and includes any additional general or specific standards of conduct that the Attorney General deems appropriate to the proper administration of criminal justice and the preservation of public confidence therein. Where the Attorney General is authorized to establish exceptions to general provisions of this act, the Attorney General is to be guided by the general principle that every county prosecutor and employee of a county prosecutor should avoid conduct that might reasonably be expected to cast doubt on the integrity, impartiality and independence of the office of the county prosecutor and by the general principle that this act prohibits conflicts that are substantial and material or that bring government into disrepute.

    b. For purposes of the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), the Code of Ethics promulgated pursuant to this act shall be considered a statement concerning internal discipline not subject to the rulemaking provisions of the “Administrative Procedure Act.”

    c. With respect to the implementation of the provisions of the ethics code, the Attorney General shall have the following powers:

    (1) To initiate, receive, hear and review complaints and hold hearings with regard to possible violations of the ethics code;

    (2) To issue subpoenas for the production of documents and the attendance of witnesses with respect to investigation of any complaint or to the holding of a hearing;

    (3) To render advisory opinions as to whether a given set of facts and circumstances would constitute a violation of this act or the Code of Ethics;

    (4) To enforce the provisions of the Code of Ethics and to impose penalties for the violation thereof as are authorized by this act;

    (5) To adopt, except as provided in subsection b. of this section, rules and regulations pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.) and to do such other things as are necessary to implement the purposes of this act;

    (6) To delegate any power provided in this section to the Director of the Division of Criminal Justice or, in the case of a complaint involving or a request for an advisory opinion from an employee of, a county prosecutor, to delegate the power to the appropriate county prosecutor; and

    (7) To require every county prosecutor and employee of a county prosecutor to file an annual statement disclosing financial matters in a form to be prescribed by the Attorney General.

    d. Nothing in this act is intended or shall be construed to limit or restrict the Attorney General’s authority under the “Criminal Justice Act of 1970,” P.L.1970, c.74 (C.52:17B-97 et seq.), to impose duties, responsibilities and restrictions related to the conduct of county prosecutors and their employees as the Attorney General deems appropriate to foster the proper administration of criminal justice and public confidence therein or to limit or restrict the Attorney General’s authority to take appropriate action to address any misconduct.

 

    11. A county prosecutor or employee of a county prosecutor may request and obtain from the Attorney General an advisory opinion as to whether any proposed activity or conduct would in the Attorney General’s opinion constitute a violation of the provisions of the ethics code. Advisory opinions of the Attorney General shall not be made public, except when the Attorney General directs that the opinion be made public. Public advisory opinions shall not disclose the name of the requester unless the Attorney General in directing that the opinion be made public so determines.

 

    12. The Attorney General, upon receipt of a signed written complaint by any person alleging that the conduct of a county prosecutor or an employee of a county prosecutor is in conflict with the provisions of the ethics code, shall acknowledge receipt of the complaint within 30 days of receipt and initiate an investigation concerning the facts and circumstances set forth in the complaint. The Attorney General shall make a determination as to whether the complaint is within the Attorney General’s jurisdiction, whether it is frivolous or without any reasonable factual basis, or whether the violation is de minimis and technical in nature. If the Attorney General shall conclude that the complaint is outside the Attorney General’s jurisdiction, frivolous or without factual basis, or that the violation is de minimis and technical in nature, the Attorney General shall reduce that conclusion to writing and shall transmit a copy thereof to the complainant and to the county prosecutor or employee of a county prosecutor against whom the complaint was filed. Otherwise the Attorney General shall notify the county prosecutor or employee of a county prosecutor against whom the complaint was filed of the nature of the complaint and the facts and circumstances set forth therein. The county prosecutor or an employee of a county prosecutor shall have an opportunity to present the Attorney General with any statement or information concerning the complaint. Thereafter, if the Attorney General determines that a reasonable doubt exists as to whether a county prosecutor or employee of a county prosecutor is in conflict with the provisions of this act or the Code of Ethics promulgated by the Attorney General, the Attorney General, except in cases in which the county prosecutor or the employee of a county prosecutor acknowledges the violation, shall conduct a hearing in the manner prescribed by section 15 of this act concerning the possible violation and any other facts and circumstances which may have come to the attention of the Attorney General with respect to the conduct of the prosecutor or employee of a prosecutor. The Attorney General shall render a decision as to whether the conduct of a county prosecutor or employee of a county prosecutor is in conflict with the provisions of the ethics code. A final decision of the Attorney General may be appealed in the same manner as any other final State agency decision.

 

    13. A county prosecutor or employee of a county prosecutor found by the Attorney General to have violated any provision of this law or of the Code of Ethics promulgated by the Attorney General, shall be fined not less than $100.00 nor more than $500.00, which penalty may be collected in a summary proceeding pursuant to "the penalty enforcement law" (N.J.S.2A:58-1 et seq.). The Attorney General may also, as the Attorney General deems appropriate, recommend the person's removal, demotion, suspension or disciplinary action or may take any other action pursuant to the "Criminal Justice Act of 1970," P.L.1970, c.74 (C.52:17B-97 et seq.).

 

    14. A finding by the Attorney General that a county prosecutor has violated this act or the Code of Ethics promulgated by the Attorney General shall be sufficient cause for removal pursuant to the provisions of section 14 of P.L.1970, c.74 (C.52:17B-110). A finding by the Attorney General that an employee of a county prosecutor has violated this act or the Code of Ethics promulgated by the Attorney General shall be sufficient cause for his removal, suspension, demotion or other disciplinary action. When a person who is in the career service or who is within the scope of a collective bargaining agreement is charged with violating the provisions of the Code of Ethics, the procedure leading to removal, suspension, demotion or other disciplinary action shall be governed by any applicable procedures of Title 11A of the New Jersey Statutes and the rules promulgated pursuant thereto or of the collective bargaining agreement.

 

    15. All hearings required pursuant to this act shall be conducted in conformity with the rules and procedures, insofar as they may be applicable, provided for hearings by a State agency in contested cases under the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.).

 

    16. Section 3 of P.L.1991, c.29 (C.40A:9-22.3) is amended to read as follows:

    3. As used in this act:

    a. "Board" means the Local Finance Board in the Division of Local Government Services in the Department of Community Affairs;

    b. "Business organization" means any corporation, partnership, firm, enterprise, franchise, association, trust, sole proprietorship, union or other legal entity;

    c. "Governing body" means, in the case of a municipality, the commission, council, board or body, by whatever name it may be known, having charge of the finances of the municipality, and, in the case of a county, the board of chosen freeholders, or, in the case of a county having adopted the provisions of the "Optional County Charter Law," P.L.1972, c.154 (C.40:41A-1 et seq.), as defined in the form of government adopted by the county under that act;

    d. "Interest" means the ownership or control of more than 10% of the profits, assets or stock of a business organization but shall not include the control of assets in a nonprofit entity or labor union;

    e. "Local government agency" means any agency, board, governing body, including the chief executive officer, bureau, division, office, commission or other instrumentality within a county or municipality, and any independent local authority, including any entity created by more than one county or municipality, which performs functions other than of a purely advisory nature, but shall not include a school board;                f. "Local government employee" means any person, whether compensated or not, whether part-time or full-time, employed by or serving on a local government agency who is not a local government officer, but shall not mean any employee of a school district or any employee of a county prosecutor as defined in section 3 of P.L.1997, c. (now pending before the Legislature as section 3 of this bill);

    g. "Local government officer" means any person whether compensated or not, whether part-time or full-time: (1) elected to any office of a local government agency; (2) serving on a local government agency which has the authority to enact ordinances, approve development applications or grant zoning variances; (3) who is a member of an independent municipal, county or regional authority; or (4) who is a managerial executive or confidential employee of a local government agency, as defined in section 3 of the "New Jersey Employer-Employee Relations Act," P.L.1941, c.100 (C.34:13A-3), but shall not mean any employee of a school district or member of a school board or any county prosecutor;

    h. "Local government officer or employee" means a local government officer or a local government employee;

    i. "Member of immediate family" means the spouse or dependent child of a local government officer or employee residing in the same household.

(cf: P.L.1991, c.29, s.3.)

    17. P.L.1964, c.168 (C.2A:158-21) is repealed.

 

    18. This act shall take effect immediately except that the Attorney General shall have 90 days from the effective date of this act to promulgate the Code of Ethics required by section 10 of the act.

 

 

STATEMENT

 

    This bill would establish the "Conflict of Interest Law for County Prosecutors." This law would apply both to county prosecutors and all persons employed in their offices. The law would generally prohibit county prosecutors and their employees from engaging in business or professional activities which conflict with the proper discharge of their duties.

    The law would specially prohibit county prosecutors and any employees of county prosecutors from using their official position to secure unwarranted privileges for themselves or others and from acting in an official capacity in matters in which they have a direct or indirect financial interest.

    Other provisions of the law would prohibit county prosecutors and their employees from accepting gifts and from engaging in political activities.

    In addition, the law would establish restrictions on certain charitable and civic activities and establish post-employment restrictions for assistant prosecutors.

    The bill futher provides that the Attorney General would be responsible for promulgating and enforcing a Code of Ethics for county prosecutors and their employees. Violations of the code and the Conflict of Interest Law would be punishable by a fine of between $100.00 and $500.00. Violations could also be punished by disciplinary actions such as removal, suspension or demotion.

 

 

                             

 

Establishes the "Conflict of Interest Law for County Prosecutors.”