June 11, 2015
Hon. Jim Whelan, Chairman and Committee members:Update--June 16, 2015: The Senate Committee favorably reported the bill, but did not incorporate my testimony. So, I submitted a letter to the sponsor of the Assembly companion bill.
As a person who has filed many ethics complaints and who was a member of the Local Ethics Board in Franklin Township (Somerset County) until the Board was disbanded by act of the Township Council, I would like to make the following comments on the bill:
1. The Franklin Township Council disbanded our local ethics board, wisely in my view, because of its cost. A December 11, 2013 news article on the Council's actions--on-line here--notes the Council's position that it "could not afford the $50,000 that would be required annually to operate the municipal ethics board."
What had occurred is that our Board began vigorously enforcing the ethics law and the respondents in the cases we brought demanded hearings, as is their right under N.J.S.A. 40A:9-22.24. Our local ethics board, similar to most, was comprised of five non-attorney volunteers who did not have the ability to conduct contested hearings without having an attorney's advice and participation every step of the way. Legal services, as you all realize, do not come cheap. Ultimately, and somewhat ironically, the Township Council, faced with the attorney fees that our enforcement activities generated, felt that it was not wise to have a municipal ethics board when the state Local Finance Board would take over our board's duties if our local board was disbanded.
Out of the nearly six hundred counties and municipalities in the State, only a small number--perhaps less than 50--have established their own ethics boards. The Local Finance Board's list of those counties and municipalities is on-line here.
While I haven't examined each of the local and county ethics boards, the ones that I have looked at appear to exist only because they were established long ago and are not doing a particularly good job in enforcing the ethics law. I believe that if these local boards were to vigorously enforce the law their municipal councils, following Franklin's logic, would likely disband them once the attorney bills started to come in.
In sum, I ask that the Committee please consider an amendment that would abolish all the county and local boards and place sole enforcement under the State Ethics Commission.
2. If the Committee decides to retain local and county ethics boards, I ask that N.J.S.A. 40A:9-22.10 be amended to permit local and county boards to enforce penalties in the municipal court. As you are undoubtedly aware, N.J.S.A. 2A:58-11(b) requires penalty enforcement actions to be brought in the Superior Court unless "the statute that establishes the civil penalty provides that the action my be brought in the municipal court." In my experience with the Franklin Municipal Ethics Board, we could not justify paying our attorney to file actions in Superior Court to collect fines of $100 to $500. The municipal court would have been an attractive enforcement option.
3. Also drawing from my experience with the Franklin Municipal Ethics Board, it was hard to justify enforcing penalties given that any money that we collected would, in accordance with N.J.S.A. 2A:58-11(f), go to the State Treasurer. In other words, to enforce the ethics laws, we would have to spend more money on legal fees than the fine's amount in order to go to Superior Court and any penalties we did enforce would go to the state rather than the township. N.J.S.A. 2A:58-11(f) permits "a different disposition" of the penalties collected if the Committee wished to provide for it in S729.
Thank you for your attention to these matters.
Very truly yours,
Update--July 20, 2015: The Philadelphia Inquirer reports that "Kean introduced an amendment that would abolish local boards," The Senate Floor amendments are referenced here.