SENATE, No. 2015

 

STATE OF NEW JERSEY

 

INTRODUCED MARCH 24, 1997

 

 

By Senators INVERSO and BUBBA

 

 

An Act concerning the Executive Commission on Ethical Standards and amending P.L.1971, c.182 and P.L.1981, c.142.

 

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

 

    1. Section 10 of P.L.1971, c.182 (C.52:13D-21) is amended to read as follows:

    10. [(a)] a. The Executive Commission on Ethical Standards created pursuant to P.L.1967, [chapter] c.229 and continued and established pursuant to P.L.1971, c.182 is continued and established in but not of the Department of Law and Public Safety and shall [constitute the first commission under this act] be independent of any supervision or control by the department or any board or office thereof, but shall be hereafter known as the Executive Commission on Conflicts of Interest.

    [(b)] b. The commission shall be composed of [seven] 11 members: six Executive Branch members and five public members appointed by the Governor. The Executive Branch members shall be appointed from among State officers and employees serving in the Executive Branch. [Each member] Executive Branch members shall serve at the pleasure of the Governor during the term of office of the Governor appointing [him and until his successor is appointed and qualified] them. The public members shall be appointed by the Governor, except that a public member shall not be a legislative agent or lobbyist as those terms are defined in section 3 of P.L.1971, c.183 (C.52:13C-20) or a representative of an entity subject to significant regulation by the State. No more than three public members shall be affiliated with the same political party. The Governor shall designate one member to serve as chairman and one member to serve as vice-chairman of the commission, both to serve at the pleasure of the Governor. The public members of the commission shall serve for terms of four years and until the appointment and qualification of their successors, but of the first members appointed, one shall serve for a term of one year, one for a term of two years, one for a term of three years, and one for a term of four years. Upon taking the oath of office at the beginning of a Governor's first term of office, the Secretary of State shall be an ex officio member of the commission and shall serve until the appointment of the first Executive Branch member by the Governor. The Governor may appoint the Secretary of State to be a regular Executive Branch member of the commission.

    Vacancies in the membership of the commission shall be filled in the same manner as the original appointments but, in the case of public members, for the unexpired term only. None of the public members shall be State officers or employees or special State officers or employees, except by reason of their service on the commission.

    [(c) Each member ] c. Members of the [said] commission shall serve without compensation, but public members shall be entitled to be reimbursed for all actual and necessary expenses incurred in the performance of [his] their duties.

    [(d)] d. The Attorney General shall act as legal adviser and counsel to the [said] commission. He shall upon request advise the commission in the rendering of advisory opinions by the commission, in the approval and review of codes of ethics adopted by State agencies in the Executive Branch [and], in the recommendation of revisions in codes of ethics or legislation relating to the conduct of State officers [and] or employees or special State officers or employees in the Executive Branch, and in the performance of any of its other duties under P.L.1971, c.182, as amended and supplemented.

    [(e)] e. The [said] commission [may], within the limits of funds appropriated or otherwise made available to it for the purpose, may employ such other professional, technical, clerical or other assistants, excepting legal counsel, and incur such expenses as may be necessary for the performance of its duties.

    [(f)] f. The [said] commission, in order to perform its duties pursuant to the provisions of this act, shall have the power to conduct investigations, hold hearings, compel the attendance of witnesses and the production before it of such books and papers as it may deem necessary, proper and relevant to the matter under investigation. The members of the [said] commission and the persons appointed by the commission for such purpose are hereby empowered to administer oaths and examine witnesses under oath.

    [(g)] g. The [said] commission is authorized to render advisory opinions as to whether a given set of facts and circumstances would, in its opinion, constitute a violation of the provisions of this act [or of], a code of ethics promulgated pursuant to the provisions of this act, or an executive order in which the Governor has granted the commission jurisdiction. Advisory opinions shall be filed with the commission and shall be public records, but no opinion so filed shall contain the name of the person or persons who requested or who are the subject of the opinion. The commission is also authorized to develop educational materials and procedures to assist any State officer or employee or any special State officer or employee in understanding and complying with the obligations of that State officer or employee or special State officer or employee under P.L.1971, c.182, as amended and supplemented.

    [(h)] h. The [said] commission shall have jurisdiction to initiate, receive, hear and review complaints regarding violations, by any State officer or employee or special State officer or employee in the Executive Branch, of the provisions of this act [or], of any code of ethics promulgated pursuant to the provisions of this act, or of any executive order in which the Governor has granted the commission jurisdiction. Any complaint regarding a violation of a code of ethics may be referred by the commission for disposition in accordance with subsection d. of section 12[(d)] of this act (C.52:13D-23).

    [(i)] i. The commission shall prepare and publish an annual report of its activities for the Governor and the Legislature on or about May 1 of each year.

    j. Any State officer or employee or special State officer or employee in the Executive Branch found [guilty by the commission of violating] by the commission to have violated any provision of this act [or of], a code of ethics promulgated pursuant to the provisions of this act, or an executive order in which the Governor has granted the commission jurisdiction shall be fined not less than [$100.00] $500 nor more than [$500.00] $1,500, which penalty may be collected in a summary proceeding pursuant to [the Penalty Enforcement Law (N.J.S.2A:58-1)] "the penalty enforcement law," N.J.S.2A:58-1 et seq., may be reprimanded and ordered to pay restitution where appropriate, and may be suspended from [his] office or employment by order of the commission for a period of not in excess of [1] one year. If the commission finds that the conduct of such officer or employee, given the nature and frequency of the conduct and the functions and responsibilities of the officer or employee, evidences a careless disregard of the provisions of P.L.1971, c.182, as amended and supplemented, a code of ethics promulgated pursuant to the provisions of that act, or an executive order in which the Governor has granted the commission jurisdiction, it may order such person removed from the person's office or employment and may further bar such person from holding any public office or employment in this State in any capacity whatsoever for a period not exceeding two years from the date on which the person was found to have violated any provision of P.L.1971, c.182, as amended and supplemented, a code of ethics promulgated pursuant to the provisions of that act, or an executive order in which the Governor has granted the commission jurisdiction. If the commission finds that the conduct of such officer or employee constitutes a willful and continuous disregard of the provisions of this act [or of], a code of ethics promulgated pursuant to the provisions of this act, or an executive order in which the Governor has granted the commission jurisdiction, it may order such person removed from [his] the person's office or employment and may further bar such person from holding any public office or employment in this State in any capacity whatsoever for a period of not exceeding [5] five years from the date on which [he] the person was found [guilty by the commission] to have violated any provision of P.L.1971, c.182, as amended and supplemented, a code of ethics promulgated pursuant to the provisions of that act, or an executive order in which the Governor has granted the commission jurisdiction.

    k. The commission shall have the primary responsibility for assuring the proper administration and implementation of P.L.1971, c.182, as amended and supplemented, and shall have the power to perform the acts necessary and convenient to administering and implementing that act. The commission in its discretion may provide for the extension of any filing period provided in that act. The commission shall set appropriate conditions for an extension of time during the period of the extension. The commission may from time to time delegate matters within its jurisdiction to its chief administrative officer. A delegation shall remain in effect until removed or modified by the commission. Delegations involving advisory opinions rendered pursuant to subsection g. of section 10 of P.L.1971, c.182 (C.52:13D-21) shall only be made subject to commission review.

(cf: P.L.1971, c.182, s.10)

 

    2. Section 4 of P.L.1981, c.142 (C.52:13D-17.2) is amended to read as follows:

    4. a. As used in this section "person" means any State officer or employee subject to financial disclosure by law or executive order and any other State officer or employee with responsibility for matters affecting casino activity; any special State officer or employee with responsibility for matters affecting casino activity; the Governor; any member of the Legislature or any full-time member of the Judiciary; any full-time professional employee of the Office of the Governor, or the Legislature; members of the Casino Reinvestment Development Authority; the head of a principal department; the assistant or deputy heads of a principal department, including all assistant and deputy commissioners; the head of any division of a principal department; any member of the governing body, or the municipal judge or the municipal attorney of a municipality wherein a casino is located; any member of or attorney for the planning board or zoning board of adjustment of a municipality wherein a casino is located, or any professional planner, or consultant regularly employed or retained by such planning board or zoning board of adjustment.

    b. No State officer or employee, nor any person, nor any member of the immediate family of any State officer or employee, or person, nor any partnership, firm or corporation with which any such State officer or employee or person is associated or in which he has an interest, nor any partner, officer, director or employee while he is associated with such partnership, firm, or corporation, shall hold, directly or indirectly, an interest in, or hold employment with, or represent, appear for, or negotiate on behalf of, any holder of, or applicant for, a casino license, or any holding or intermediary company with respect thereto, in connection with any cause, application, or matter, except that (1) a State officer or employee other than a State officer or employee included in the definition of person, and (2) a member of the immediate family of a State officer or employee, or of a person, may hold employment with the holder of, or applicant for, a casino license if, in the judgment of the Executive Commission on [Ethical Standards] Conflicts of Interest, the Joint Legislative Committee on Ethical Standards, or the Supreme Court, as appropriate, such employment will not interfere with the responsibilities of the State officer or employee, or person, and will not create a conflict of interest, or reasonable risk of the public perception of a conflict of interest, on the part of the State officer or employee, or person. No special State officer or employee without responsibility for matters affecting casino activity, excluding those serving in the Departments of Education, Health, and Human Services and the Commission on Higher Education, shall hold, directly or indirectly, an interest in, or represent, appear for, or negotiate on behalf of, any holder of, or applicant for, a casino license, or any holding or intermediary company with respect thereto, in connection with any cause, application, or matter. However, a special State officer or employee without responsibility for matters affecting casino activity may hold employment directly with any holder of or applicant for a casino license or any holding or intermediary company thereof and if so employed may hold, directly or indirectly, an interest in, or represent, appear for, or negotiate on behalf of, his employer, except as otherwise prohibited by law.

    c. No person or any member of his immediate family, nor any partnership, firm or corporation with which such person is associated or in which he has an interest, nor any partner, officer, director or employee while he is associated with such partnership, firm or corporation, shall, within two years next subsequent to the termination of the office or employment of such person, hold, directly or indirectly, an interest in, or hold employment with, or represent, appear for or negotiate on behalf of, any holder of, or applicant for, a casino license in connection with any cause, application or matter, or any holding or intermediary company with respect to such holder of, or applicant for, a casino license in connection with any phase of casino development, permitting, licensure or any other matter whatsoever related to casino activity, except that:

    (1) a member of the immediate family of a person may hold employment with the holder of, or applicant for, a casino license if, in the judgment of the Executive Commission on [Ethical Standards] Conflicts of Interest, the Joint Legislative Committee on Ethical Standards, or the Supreme Court, as appropriate, such employment will not interfere with the responsibilities of the person and will not create a conflict of interest, or reasonable risk of the public perception of a conflict of interest, on the part of the person; and

    (2) an employee who is terminated as a result of a reduction in the workforce at the agency where employed, other than an employee who held a policy-making management position at any time during the five years prior to termination of employment, may, at any time prior to the end of the two-year period, accept employment with the holder of, or applicant for, a casino license if, in the judgment of the Executive Commission on [Ethical Standards] Conflicts of Interest, the Joint Legislative Committee on Ethical Standards, or the Supreme Court, as appropriate, such employment will not create a conflict of interest, or reasonable risk of the public perception of a conflict of interest, on the part of the employee. In no case shall the restrictions of this subsection apply to a secretarial or clerical employee. Nothing herein contained shall alter or amend the post-employment restrictions applicable to members and employees of the Casino Control Commission and employees and agents of the Division of Gaming Enforcement pursuant to subsection b. (2) of section 59 and to section 60 of P.L.1977, c.110 (C.5:12-59 and C.5:12-60).

    d. This section shall not apply to the spouse of a State officer or employee, which State officer or employee is without responsibility for matters affecting casino activity, who becomes the spouse subsequent to the State officer's or employee's appointment or employment as a State officer or employee and who is not individually or directly employed by a holder of, or applicant for, a casino license, or any holding or intermediary company.

    e. The Joint Legislative Committee on Ethical Standards and the Executive Commission on [Ethical Standards] Conflicts of Interest, as appropriate, shall forthwith determine and publish, and periodically update, a list of those positions in State government with responsibility for matters affecting casino activity.

    f. No person shall solicit or accept, directly or indirectly, any complimentary service or discount from any casino applicant or licensee which he knows or has reason to know is other than a service or discount that is offered to members of the general public in like circumstance.

    g. No person shall influence, or attempt to influence, by use of his official authority, the decision of the commission or the investigation of the division in any application for licensure or in any proceeding to enforce the provisions of this act or the regulations of the commission. Any such attempt shall be promptly reported to the Attorney General; provided, however, that nothing in this section shall be deemed to proscribe a request for information by any person concerning the status of any application for licensure or any proceeding to enforce the provisions of this act or the regulations of the commission.

    h. Any person who willfully violates the provisions of this section is a disorderly person and shall be subject to a fine not to exceed $500.00 or imprisonment not to exceed six months, or both.

(cf: P.L.1995, c.18, s.43)

 

    3. Section 12 of P.L.1971, c.182 (C.52:13D-23) is amended to read as follows:

    12. [(a)] a. The head of each State agency, or the principal officer in charge of a division, board, bureau, commission or other instrumentality within a department of State Government designated by the head of such department for the purposes hereinafter set forth, shall within six months from the date of enactment, promulgate a code of ethics to govern and guide the conduct of the members of the Legislature, the State officers and employees or the special State officers and employees in the agency to which said code is applicable. Such code shall conform to the general standards hereinafter set forth in this section, but it shall be formulated with respect to the particular needs and problems of the agency to which said code is to apply. Notwithstanding any other provisions of this section, the New Jersey members to any interstate agency to which New Jersey is a party and the officers and employees of any State agency which fails to promulgate a code of ethics shall be deemed to be subject to a code of ethics the provisions of which shall be paragraphs (1) through (6) of subsection [(e)] e. of this section.

    [(b)] b. A code of ethics formulated pursuant to this section to govern and guide the conduct of the State officers and employees or the special State officers and employees in any State agency in the Executive Branch, or any portion of such a code, shall not be effective unless it has first been approved by the Executive Commission on [Ethical Standards] Conflicts of Interest. When a proposed code is submitted to the [said] commission it shall be accompanied by an opinion of the Attorney General as to its compliance with the provisions of this act and any other applicable provision of law. Nothing contained herein shall prevent officers of State agencies in the Executive Branch from consulting with the Attorney General or with the Executive Commission on [Ethical Standards] Conflicts of Interest at any time in connection with the preparation or revision of such codes of ethics.

    [(c)] c. A code of ethics formulated pursuant to this section to govern and guide the conduct of the members of the Legislature, State officers and employees or special State officers and employees in any State agency in the Legislative Branch, or any portion of such code, shall not be effective unless it has first been approved by the Legislature by concurrent resolution. When a proposed code is submitted to the Legislature for approval it shall be accompanied by an opinion of the chief counsel as to its compliance with the provisions of this act and any other applicable provisions of law. Nothing contained herein shall prevent officers of State agencies in the Legislative Branch from consulting with the Chief Legislative Counsel or the Joint Legislative Committee on Ethical Standards at any time in connection with the preparation or revision of such codes of ethics.

    [(d)] d. Violations of a code of ethics promulgated pursuant to this section shall be cause for removal, suspension, demotion or other disciplinary action by the State officer or agency having the power of removal or discipline. When a person who is in the classified civil service is charged with a violation of such a code of ethics, the procedure leading to such removal or discipline shall be governed by any applicable provisions of the Civil Service Law and the Rules of the Department of [Civil Service] Personnel. No action for removal or discipline shall be taken under this subsection except upon the referral or with the approval of the Executive Commission on [Ethical Standards] Conflicts of Interest or the Joint Legislative Committee on Ethical Standards, whichever is authorized to exercise jurisdiction with respect to the complaint upon which such action for removal or discipline is to be taken.

    [(e)] e. A code of ethics for officers and employees of a State agency shall conform to the following general standards:

    (1) No State officer or employee or special State officer or employee should have any interest, financial or otherwise, direct or indirect, or engage in any business or transaction or professional activity, which is in substantial conflict with the proper discharge of his duties in the public interest.

    (2) No State officer or employee or special State officer or employee should engage in any particular business, profession, trade or occupation which is subject to licensing or regulation by a specific agency of State Government without promptly filing notice of such activity with the Executive Commission on [Ethical Standards] Conflicts of Interest, if he is an officer or employee in the Executive Branch, or with the Joint Legislative Committee on Ethical Standards, if he is an officer or employee in the Legislative Branch.

    (3) No State officer or employee or special State officer or employee should use or attempt to use his official position to secure unwarranted privileges or advantages for himself or others.

    (4) No State officer or employee or special State officer or employee should act in his official capacity in any matter wherein he has a direct or indirect personal financial interest that might reasonably be expected to impair his objectivity or independence of judgment.

    (5) No State officer or employee or special State officer or employee should undertake any employment or service, whether compensated or not, which might reasonably be expected to impair his objectivity and independence of judgment in the exercise of his official duties.

    (6) No State officer or employee or special State officer or employee should accept any gift, favor, service or other thing of value under circumstances from which it might be reasonably inferred that such gift, service or other thing of value was given or offered for the purpose of influencing him in the discharge of his official duties.

    (7) No State officer or employee or special State officer or employee should knowingly act in any way that might reasonably be expected to create an impression or suspicion among the public having knowledge of his acts that he may be engaged in conduct violative of his trust as a State officer or employee or special State officer or employee.

    (8) Rules of conduct adopted pursuant to these principles should recognize that under our democratic form of government public officials and employees should be drawn from all of our society, that citizens who serve in government cannot and should not be expected to be without any personal interest in the decisions and policies of government; that citizens who are government officials and employees have a right to private interests of a personal, financial and economic nature; that standards of conduct should separate those conflicts of interest which are unavoidable in a free society from those conflicts of interest which are substantial and material, or which bring government into disrepute.

    [(f)] f. The code of ethics for members of the Legislature shall conform to subsection [(e)] e. hereof as nearly as may be possible.

(cf: P.L.1987, c.432, s.6)

 

    4. This act shall take effect immediately, but any increased penalty shall apply only to violations occurring on and after the effective date.

 

 

STATEMENT

 

    The bill reconstitutes the Executive Commission on Ethical Standards in order to incorporate public members and to clarify the enforcement powers of the commission. The bill also renames the commission as the Executive Commission on Conflicts of Interest.

    At present, all seven commission members are State officers or employees. Under this bill, five commission members would be public members, no more than three of whom shall be of the same political party. The other six members shall be appointed by the Governor from among State officers or employees and special State officers or employees serving in the Executive Branch. Except for those first appointed, public members shall serve for terms of four years. None of the public members shall be State officers or employees or special State officers or employees except by reason of their service on the commission.

    The commission is authorized to initiate, receive, hear and review complaints regarding violations of any executive order in which the Governor has granted the commission jurisdiction and to render advisory opinions as to whether there has been a violation of such executive orders.

    The bill increases from $500 to $1,500 the maximum fine for a violation by a State officer or employee or special State officer or employee in the Executive Branch of the ethics law, a code of ethics promulgated pursuant to that law, or any executive order in which the Governor has granted the commission jurisdiction.

 

 

                             

 

Reconstitutes Executive Commission on Ethical Standards as Executive Commission on Conflicts of Interest; provides for public members; clarifies its enforcement powers.