Thursday, December 27, 2012

20 years later: Still Unclear on Local Prosecutors' and PDs' Duty to File Financials

By statute (N.J.S.A. 2B:25-4 and 2B:24-3), every New Jersey municipal court must have at least one municipal prosecutor and at least one municipal public defender.  Since these positions are common to almost every municipality in the state, one would think that question of whether the holders of these offices are "local government officers" who are required by the New Jersey Local Government Ethics Law (LGEL) to file an annual "Financial Disclosure Statement" has long ago been settled.  Unfortunately, there is still confusion regarding the prosecutors' and public defenders' filing requirements, which is distressing since the LGEL became effective on May 21, 1991--over twenty years ago.  Simply put, I don't think that it's unreasonable to expect most towns to be on the same page as to what the law requires after that law has been in existence for over twenty years.

But, if you submit an Open Public Records Act (OPRA) request with your town, as I did with Morris Township (Morris County), seeking the Financial Disclosure Statements filed by the prosecutors and public defenders, don't be surprised if you are told, as I was, that the prosecutor and defender are exempt from the filing requirement because the Attorney General, in 1991, deemed them to be "court personnel" who are not required to file. But, the Attorney General Opinion Letter that these towns invariably rely upon, AO-91-0096, contains a very important footnote on page 6 stating that "a municipal court prosecutor and a municipal court public defender are not considered part of the judicial branch of government."  In other words, while municipal court judges and administrators are exempted by the Opinion Letter from the filing requirement, prosecutors and defenders are not.

When I first realized, in 2008, that many municipal governments had not read AO-91-0096 correctly, I wrote to the Local Finance Board within the Division of Local Government Services and suggested that "there shouldn't be such uncertainty over this rather straightforward issue" and invited the Board to "clearly decide the question and to publicly disseminate its decision so that municipal clerks and prosecutors around New Jersey can be properly guided."  My August 21, 2008 letter to the Board, which is available here, has never received a response.

Accordingly, more than four years later, I am still slugging it out--one municipality at a time--over the issue of whether prosecutors and public defenders are required to file.  I frequently find cases like Morris Township, where the officials genuinely are confused by the ambiguity in the law and, after reading my correspondence, decided that I was right and required their prosecutor and public defender to make their financial filings. My letter to Morris Township and the Township's response are on-line here. (I don't mean to impugn Morris Township officials by this posting as they were simply abiding by the vague and incomplete information that the state gave them and are probably as frustrated as I am over state agencies' inability or unwillingness to clarify the policies that the agencies expect the municipalities to enforce.)

What does concerns me, however, is that it shouldn't be so difficult for a citizen who recognizes a general problem with the execution of a statute to get the agency in charge of that statute to resolve the problem.  All the Local Finance Board would need to do is issue a simple bulletin (or Local Finance Notice) to each municipality in the state (the Board issues such notices regularly) advising them of the ambiguity and instructing the municipalities on how to deal with it.  And, while the filing or non-filing of a Financial Disclosure Statement by municipal prosecutors and defenders may not be the biggest problem confronting New Jersey, it does underscore a problem that plagues us in New Jersey and beyond--a total lack of expectation for anything resembling excellence, or even competence, within many of the institutions that churn out the reams of the sometimes conflicting, and often vague, regulations that we are required to live under.

I am sending a copy of this posting to the Local Finance Board, in hopes that they will deem it appropriate to issue the Local Finance Notice that would clarify this matter.  In the meantime, I'll keep proceeding as I have--one town at a time.

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