In Re Determination of Executive Commission on Ethical Standards , 116 N.J. 216 ( 1989 )

POLLOCK, J.,

dissenting.

The majority concludes that Rutgers University is not an “instrumentality” of the State and that Rutgers law professors are “not to be regarded as [ ] State employee[s] for purposes of the conflicts-of-interest law.” Ante at 229. I disagree, and would affirm substantially for the reasons set forth in Judge Petrella’s well-reasoned Appellate Division opinion.

Enacted to ensure that the “conduct of public officials and employees shall hold the respect and confidence of the people,” N.J.A. C. 52:13D-12(a), the Conflicts-of-interest Law (Conflicts Law or the Law), provides in relevant part:

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 * * *. [N.J.S.A. 52:13D-16b.]

Everyone agrees that the Council on Affordable Housing (COAH) is a State agency within the meaning of the statute. Rutgers law professors, therefore, can avoid the characterization as State employees only if they are not so defined in the Conflicts Law.

Under the Conflicts Law, an employee is “any person * * * holding an office or employment in a State agency * * *.” N.J.S.A. 52:13D-13b. In turn, the Law defines State agency as

any of the principal departments in the Executive Branch of the State Government, and any division, board, bureau, office, commission or other instrumentality within or created by such department, the Legislature of the State and any office, board, bureau or commission within or created by the Legislative Branch, and, to the extent consistent with law, any interstate agency to which New Jersey is a party and any independent State authority, commission, instrumentality or agency. [N.J.S.A. 52:13D-13a (emphasis supplied).]

If Rutgers falls within this definition, the Law applies to its employees.

Originally a private college chartered by George III of Great Britain in 1766, Rutgers became “an instrumentality of the state for providing public higher education” in 1945. L. 1945, c. 49; see also Trustees of Rutgers College in N.J. v. Rickman, 41 N.J.Super. 259, 264, 272 (Ch.Div.1956) (relating history of Rutgers from 1766 to 1956). In 1956, Rutgers formally became The State University. L. 1956, c. 61. Pursuant to “Rutgers, The State University Act of 1956,” Rutgers is “the instrumentality of the state for the purpose of operating the State University.” Ibid. The same provision continues in N.J.S.A. 18A:65-2, which is part of “Rutgers, The State University Law,” adopted in 1967. These statutes establish Rutgers as an instrumentality of the State. As such, they unequivocally constitute Rutgers as a State agency under the Conflicts Law. It follows, therefore, that Rutgers professors are State employees subject to the law.

When the language of a statute is clear, a court should enforce the statute according to its terms. Judicial interpretation is inappropriate even if a particular application of the law was not foreseen by its drafters. See, e.g., Sheeran v. Nationwide Mut. Ins. Co., 80 N.J 548, 556 (1979). A plain reading of the Conflicts Law mandates its application to Rutgers law professors. The University grasps the point. In the 1986-88 faculty handbook, Rutgers advises that it is an instrumentality of the State and thus its “faculty and other employees * * * are bound by the New Jersey Conflict of Interest Statute.” The handbook continues:

[i]t is the policy of the University that all faculty members avoid any conflict of interest or appearance of conflict of interest, as defined by provisions of the New Jersey Conflicts of Interest Law as well as the relevant Regulations and written policies of the University. * * * This statute is quite comprehensive in prohibiting an employee of an agency or instrumentality of the State, among other activities, from * * * representing or negotiating for, any party other than the State before the agency [or instrumentality] of the State with which he or she is associated * * *. [Emphasis added.]

The majority reads the handbook as restricting Rutgers professors from appearing before only “the agency or instrumentality with which the employee is associated.” Ante at 227. If the majority means that the restriction prevents a professor from appearing only before the University, it makes no sense. The Law bars a State officer or employee from appearing before any State agency, not merely the one that employs the State officer or employee. Any other reading of the handbook, moreover, ignores the critical clause interpreting the statute to apply to “other activities.” In any event, the handbook could not narrow the scope of the Law, which prevents Rutgers professors from appearing “before any state agency.”

Until today, neither Rutgers, its faculty, nor the Executive Commission on Ethical Standards had any doubt that the Law applied to Rutgers when they appeared before any State agency. Two Executive Commission opinions prove the point. One opinion holds that a hearing officer appointed to conduct student disciplinary hearings is a State officer subject to the restrictions of the Law. Executive Commission on Ethical Standards, Opinion No. 4 (Dec. 15, 1972). The second opinion holds that Rutgers professors may appear as expert witnesses in court proceedings. Advisory Opinion No. 38, Executive Commission on Ethical Standards. In reaching that result, the Commission analyzed N.J.S.A. 52:13D-16b, which precludes a State officer or employee from appearing in any “matter pending before any State agency.” The Commission distinguished agency proceedings, as to which State officers and employees were subject to a “broad prohibition” from court proceedings, in which appearances by those officers and employees were unrestricted. Consequently, the professors were permitted to appear as expert witnesses in court proceedings, although they could not have appeared in similar proceedings before a state agency. What has been clear to the Executive Commission on Ethical Standards, the Appellate Division, and Rutgers University is lost on the majority. By exempting Rutgers law professors from the Conflicts Law, this Court strays from its obligation not to engage “in conjecture or surmise which will circumvent the plain meaning” of a statute. See, e.g., In re Jamesburg High School Closing, 83 N.J. 540, 548 (1980).

The majority correctly observes that the Conflicts Law seeks to prevent the appearance of impropriety, as well as impropriety itself. Because it cannot foresee a situation where the appearance of impropriety would arise, the majority concludes that the Law does not apply to the Rutgers professors. Ante at 225-26. The Commission, however, foresees the possibility that the professors’ status as faculty members at a State law school could give the professors an advantage over their adversaries. Given the clarity of the prohibition in N.J.S.A. 52:13D-16, I believe the majority should not second-guess the Legislature’s implicit determination that Rutgers professors should be subject to the Conflicts Law. See MacMillen v. Taxation Div. Director, 180 N.J.Super. 175, 177 (App.Div.1981), aff'd o.b., 89 N.J. 216 (1982).

In the Conflicts Law, the Legislature demonstrated that it knew how to exclude from the operation of the Law representation by State employees before State agencies. Thus, N.J.S.A. 52:13D-16c allows State employees to appear before agencies as diverse as the Division on Civil Rights, the Workers’ Compensation Bureau, the Transfer Inheritance Tax Bureau, the New Jersey Public Employment Relations Commission, and the Unsatisfied Claim and Judgment Fund Board. If the Legislature had wanted to remove Rutgers law professors from the Conflicts Law, it could have provided them with a similar exemption. Cf. N.J.S.A. 52:27E-29 (granting Public Advocate right to represent the public interest in administrative proceedings).

Exempting the professors from the Conflicts Law is a matter for the Legislature, not the judiciary. In this regard, I am troubled by appellants’ argument concerning the relationship between the legislative and judicial branches of government. When asked at oral argument why appellants had not sought a legislative amendment to the Conflicts Law, its counsel replied:

Some overtures have been made to the Legislature about making legislative change, I’m aware of that. But I think we’re all, all have enough practical experience, sort of politically sophisticated enough, to understand the vicissitudes of the legislative process.

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I think we can generally agree that moving any kind of a bill through the Legislature is like trying to push a rock up a hill. * * * I mean you know, if you want to get a particular piece of legislation through you have to find a sponsor.

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Well, it’s not just a sponsor. You gotta go through committee, you gotta get it posted in both houses, you got to line up forty-one votes in the Assembly, twenty-one in the Senate.

When directly asked whether the reason appellants were proceeding before the judiciary, rather than the Legislature, because that course would be easier, appellants’ counsel responded: “I think it probably is.” Although the wall between the Legislature and the judiciary is not insurmountable, it ought not to be so easily scaled. More is at stake than an easy answer.

Much commends the encouragement of clinical education and the appearance of Rutgers law professors before State agencies pursuant to that program. Clinical programs bridge the gap between the classroom and the world of the practitioner. They help law students to develop the skills needed to relate to witnesses, clients, attorneys, judges, and the public. This case, however, is not a referendum on clinical education. As attractive as are clinical programs, I cannot ignore the Conflicts Law as drafted. See Knight v. Margate, 86 N.J. 374, 391 (1981). Furthermore, enforcement of the Conflicts Law as written need not deprive Rutgers students of clinical programs. As the Appellate Division pointed out, the students could be accompanied by lawyers who are not members of the Rutgers faculty when appearing before CO AH and other agencies not excluded from the Conflicts Law. 222 N.J.Super. at 492-93.

Ethical conduct in government requires constant vigilance. The Conflicts Law itself was adopted only after careful deliberation and soul-searching by the Legislature. In this case, the Executive Commission on Ethical Standards has concluded that the Conflicts Law applies to appellants. That decision is entitled to judicial deference. See Newark Firemen’s Mut. Benevolent Ass’n v. Newark, 90 N.J. 44, 55 (1982). By overriding the decision of the agency to which enforcement of the Law is entrusted, the majority undermines the effectiveness of the Commission and unnecessarily encourages appeals from every disgruntled employee whose conduct violates the Conflicts Law. I would leave the granting of exemptions to the Legislature and the agency to which it has delegated the enforcement of the Law.

I would affirm.

For Affirmance — Justices CLIFFORD, POLLOCK and STEIN — 3. For Reversal — Chief Justice WILENTZ and Justices HANDLER, O’HERN and GARIBALDI — 4.