IN RE DETERMINATION OF EXECUTIVE COMMISSION ON ETHICAL STANDARDS RE: APPEARANCE OF RUTGERS ATTORNEYS BEFORE THE COUNCIL ON AFFORDABLE HOUSING ON BEHALF OF THE CIVIC LEAGUE, PLAINTIFFS.
Supreme Court of New Jersey
Argued February 27, 1989—Decided August 2, 1989.
116 N.J. 216
Lewis A. Scheindlin, Deputy Attorney General, argued the cause for respondent Executive Commission on Ethical Standards (Peter N. Perretti, Jr., Attorney General of New Jersey, attorney; Benjamin Clarke, Deputy Attorney General, of counsel).
John P. Thurber, Assistant Deputy Public Advocate, argued the cause on behalf of amicus curiae Public Advocate of the State of New Jersey (Alfred A. Slocum, Public Advocate, attorney).
Nadine Taub and Patricia E. Rousseau submitted a brief on behalf of amicus curiae Urban Legal Clinic, Environmental
Bernard Kenneth Freamon submitted a brief on behalf of amicus curiae Society of American Law Teachers (Mr. Freamon, attorney; Charles D. Wiesselberg, a member of the California bar, of counsel).
Paul Schachter submitted a brief on behalf of amicus curiae American Association of University Professors (Reinhardt & Schachter, attorneys; Stefan H. Krieger, a member of the Texas bar, of counsel).
Bennet D. Zurofsky submitted a brief on behalf of amicus curiae Association of American Law Schools (Reitman, Parsonnet, Maisel & Duggan, attorneys).
The opinion of the Court was delivered by
O‘HERN, J.
The question in this case is whether a Rutgers law professor conducting a clinical teaching program is to be regarded as a “State employee” for purposes of the New Jersey Conflicts of Interest Law,
I
Clinical training is one of the most significant developments in legal education. Generations of law students, trained on the
As noted, the Rule permits students, under the supervision of a member of the bar, to represent clients in need of legal services. For example, the Rutgers Environmental Law Clinic‘s mission is to provide students with an introduction to the nature of environmental law practice. To do so, it must interact with the Department of Environmental Protection as well as other State administrative agencies. In order to accept the Commission‘s ruling, we would have to assume that an environmental-law clinic at a State University (unlike one at a privately-funded university) would not be able to interact with any of the agencies essential to such practice. Nor would the Women‘s Rights Litigation Clinic of Rutgers University be able to represent women subjected to sexual harassment in related employment hearings or to act in child-advocacy issues before the Division of Youth and Family Services, the State agency that provides protective services for children. Nor would the Urban Legal Clinic at Rutgers be able to handle its clients’ housing, employment, and income-assistance claims when they must go before the operative State agencies. Nor, finally, would the Rutgers University School of Law Constitutional Litigation Clinic (Clinic) be able to appear before COAH. We cannot attribute such an intention to the Legislature.
II
We gather this insight from considering the purposes of the conflicts law. In 1969, the Legislature was concerned with the
[i]n our representative form of government, it is essential that the conduct of public officials and employees shall hold the respect and confidence of the people. Public officials must, therefore, avoid conduct which is in violation of their public trust or which creates a justifiable impression among the public that such trust is being violated. [
N.J.S.A. 52:13D-12(a) .]
Governor Cahill, on signing the bill, stated that
the State will benefit by the removal, to a large degree, of situations of conflicts of interests on the part of members of the Legislature and State officers and employees. Equally as important, this bill will remove the appearance of an opportunity for the exertion of undue influence.
While in many instances no actual conflict of interest or undue influence does exist, the appearance of the same is most harmful to our public image. By removing situations of conflict of interest, opportunities for conflict of interest, and the appearance of conflict of interest and undue influence, the respect of our citizens for public officials will be renewed. [Remarks in Connection with the Signing of S-825 (2nd OCR) at 4 (June 2, 1971) (hereinafter Remarks of Governor Cahill).]
The particular evil that occasioned the passage of the conflicts law was the appearance of impropriety by members of the official family of State Government representing interests before agencies of the very government with which they were associated. There is a familiar concern at both state and national levels of trading this influence in the public sphere to the disadvantage or to the apparent disadvantage of the public.
The section of the conflicts law currently at issue provides, in relevant part that
[n]o State officer or employee * * * shall represent, appear for, or negotiate on behalf of, or agree to 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-16(b) .]
Section 16(c) of the conflicts law exempts certain agencies from the foregoing provision, but the COAH is not listed among them. Further, the statute broadly defines “State officer or employee” as, in relevant part, “any person * * * holding an
III
We come now to the position of a professor at a State University and must try to assimilate that position within the framework of the statute. Obviously, the professor is not an employee of any of the “principal departments in the Executive Branch of the State Government,” but the language of the statute might be interpreted to extend to Rutgers. It holds a legislative charter. Does that make it a State “instrumentality” for purposes of the State‘s conflicts law? Heretofore, our courts have resolved the question of whether general state statutes apply to Rutgers by considering both the purposes of the general program and the purposes of the Rutgers legislative charter. See Rutgers, The State University v. Piluso, 60 N.J. 142 (1972). Our task is to have the law make sense: “it is a venerable principle that a law will not be interpreted to produce absurd results.” K Mart Corp. v. Cartier, Inc., 486 U.S. 281, — n. 2, 108 S.Ct. 1811, 1816 n. 2, 100 L.Ed. 2d 313, 345 n. 2 (1988) (Scalia, J., concurring in part and dissenting in part).1 We must ask whether the teaching role of a Rutgers
We begin by noting the entirely coincidental circumstance that occasions the presence of the putative “State employee,” the university professor, before the State agency. It is a circumstance that contradicts any suggestion of an “appearance of an opportunity for the exertion of undue influence.” Remarks of Governor Cahill, supra, at 4. Rather, this situation arises from the unique circumstances of the enactment of the Fair Housing Act of 1985,
That this happenstance would create a conflict of interest could hardly have been the intention of the Legislature. Given the correlative relationship between the agency process and the judicial process under the Act, we would have to assume that the Legislature intended that a public-interest client would be
In addition, we note the unique status of Rutgers, The State University. For some 190 years, it had occupied an essentially independent status. See generally Trustees of Rutgers College v. Richman, 41 N.J.Super. 259, 265-82 (Ch.Div.1956) (outlining the history of the University from its chartering as Queen‘s-College in 1766 until 1956). Accordingly, the absorption of Rutgers University within the framework of State-supported education has been marked by an overriding concern for the academic freedom of one of the nation‘s oldest and greatest universities. The fact that there is State involvement in education should never be a disadvantage. The Governor of the State of New Jersey is trustee, ex officio, of Princeton University. There is no loss of academic freedom in that. The reorganization of Rutgers as the State University in 1956 was accompanied by a declaration that
the corporation and the university shall be and continue to be given a high degree of self-government and that the government and conduct of the corporation and the university shall be free of partisanship. [
N.J.S.A. 18A:65-27(1)(a) .]
The reorganization statute also provides that “the powers granted to the corporation or the boards [of trustees] or reasonably implied, may be exercised without recourse or reference to any department or agency of the state, except as otherwise expressly provided by this chapter or other applicable statutes.”
[W]e find here created a hybrid institution—at one and the same time private and public, with the State being granted a major voice in management, and the designation “State University“; and the institution being granted private autonomy and control of physical properties and assets. [Richman, supra, 41 N.J.Super. at 289-90.]
We have previously recognized the Legislature‘s intent “that the growth and development of Rutgers, as a public university for the benefit of all the people of the state, was not to be thwarted or restricted * * * *.” Rutgers, The State University v. Piluso, supra, 60 N.J. at 158.
All of this independence accords with the idea of a university as “guilds of scholars * * * responsible only to themselves.” Snitow v. Rutgers University, 103 N.J. 116, 122 (1986) (quoting NLRB v. Yeshiva University, 444 U.S. 672, 680, 100 S.Ct. 856, 861, 63 L.Ed. 2d 115, 124 (1980)). In Snitow we recognized the fundamental importance of academic freedom in our society:
The concept of “[a]cademic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment.” Regents of the University of California v. Bakke, 438 U.S. 265, 312, 98 S.Ct. 2733, 2760, 57 L.Ed. 2d 750, 785 (1978) (Powell, J., announcing Court‘s judgment and expressing his views of case). “[T]he four essential freedoms’ of a university” have been said to include the freedom “to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.” Sweezy v. New Hampshire, 354 U.S. 234, 263, 77 S.Ct. 1203, 1218, 1 L.Ed. 2d 1311, 1332 (1957) (Frankfurter, J., concurring) (citation omitted). [Ibid.]
To characterize one of these scholars, for all purposes, as the equivalent of a “State employee” is to misperceive history and to traduce legislative purpose.
But the appearance of impropriety in Higgins is real. The prosecutor‘s office depends for its fiscal resources on the attorney-freeholder. Ibid. We have no sense of that here. “[T]he evil sought to be remedied” by the statute, Oxford Consumer Discount Co. of N. Philadelphia v. Stefanelli, 102 N.J.Super. 549, 565 (App.Div.1968), was any conduct by officials of the executive and legislative branch “which is in violation of their public trust or which creates a justifiable impression among the public that such trust is being violated.”
IV
Nor do the particulars of this case present any special appearance of impropriety or trading on influence. As noted, the case arises from the statutory transfer of the case from the court system to the agency. In June 1986, a staff attorney with the clinic requested an advisory opinion from the Executive Commission on Ethical Standards (Commission) determining whether the professors could continue their representation of the Civic League before the COAH. On January 21, 1987, the Commission ruled that such representation would violate the conflicts law, and recommended that the clinic should seek a legislative change in the law. On February 18, 1987, the Commission refused to stay its ruling pending appeal.
On February 27, 1987, the clinic, on behalf of the Civic League, filed with the Appellate Division a notice of motion for
We are simply unable to agree that in any sense this representation is within the contemplation of the legislative purposes of the conflict of interest law. It is almost a cliche to say that the purpose of courts in statutory construction is to seek to enforce the legislative will. E.g., AMN, Inc. v. Township of S. Brunswick Rent Leveling Bd., 93 N.J. 518, 525 (1983); Safeway Trails, Inc. v. Furman, 41 N.J. 467, 477 cert. denied, 379 U.S. 14, 85 S.Ct. 144, 13 L.Ed. 2d 84 (1964). We will enforce the legislative will even when the language of the statute is in conflict therewith. New Jersey Builders, Owners and Managers Ass‘n v. Blair, 60 N.J. 330, 338 (1972) (“Where a literal rendering will lead to a result not in accord with the essential purpose and design of the act, the spirit of the law will control the letter.“). As we have seen, it has never been the law that for all purposes Rutgers is to be regarded as an alter-ego of the State. See Fuchilla v. Layman, supra, 109 N.J. 319. It is equally not true that its teaching faculty members are employees of the State for all purposes.
We are not convinced that the faculty handbook cited by our dissenting members, post at 231, and the Appellate Division, supra, 222 N.J.Super. at 492, disposes of the issue. Although the handbook concludes that Rutgers professors are bound by the conflicts law, its interpretation of the law limits its scope to prohibition of appearances before the agency or instrumentality
It is difficult to conceive how the well-informed member of the public might conclude that such a person would be able to exert improper influence on the agency. They are not members of the “official family” of State Government (a principle that has always influenced our own decisions with respect to appearances of impropriety), nor do they possess any ability to influence the agency by control of its budget or its personnel in any way. See Higgins, supra, 73 N.J. at 125 (quoting Advisory Committee on Professional Ethics Advisory Opinion No. 291, 97 N.J.L.J. 801 (1974)).
The previous rulings of the Executive Commission on Ethical Standards in Advisory Opinion No. 4 and Advisory Opinion No. 38 do not conflict with our result. The former held that a hearing officer paid by Rutgers should be considered a “state employee” under the Conflicts of Interest Law, but did not indicate what effect this would have. We agree that accepting gifts or favors given in exchange for influence,
V
In so holding, we do no more than resolve the question before us. We draw the line at the outer boundaries of legislative intent. We do not hold that a State university professor who personally seeks or receives fees in the course of legal representation before State agencies of government would or would not be a State employee. There might be circumstances in which an appearance of impropriety would be present. However, for the most part such representation will be by attorneys-at-law, who would be constrained by ethical restrictions on their conduct. See Higgins, supra, 73 N.J. 123. All that we hold is that the representation here does not evoke any of the concerns that prompted the legislative action.
Nor do we hold that were the Legislature to confirm the holding of the Appellate Division, it would so clearly be an infringement on protected interests that it would be invalid. Nonetheless we are certain that the Legislature would place the highest premium on academic freedom, as it has done invariably in the past, and would carefully balance the State and academic interests in the process. We hold here only that it was undoubtedly not within the contemplation or intent of the Legislature that the phrase, “State employee,” under the New Jersey Conflicts of Interest Law,
The judgment of the Appellate Division is reversed.
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,”
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 * * *.”
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. Richman, 41 N.J.Super. 259, 264, 272 (Ch.Div.1956) (relating history of
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
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
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
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,
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 COAH 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
I would affirm.
For Affirmance—Justices CLIFFORD, POLLOCK and STEIN—3.
For Reversal—Chief Justice WILENTZ and Justices HANDLER, O‘HERN and GARIBALDI—4.