[135 NJSuper Page 276] Plaintiff Ralph C. De Rose, a commissioner of the Waterfront Commission of New York Harbor, brings this action against the Governor of the State of New Jersey for a declaratory judgment with appropriate restraints that (a) Executive Order No. 21 of 1975 which purports to make De Rose's position as commissioner full-time, is void, and (b) that the New Jersey Conflicts of Interest Law, N.J.S.A. 52:13D-12 et seq., is inapplicable to De Rose's office as a member of a bi-state agency approved by act of Congress. Both parties having cross-moved for summary judgment, the matter is before the court for decision. In chronological fashion, the salient facts appear as follows:
1. De Rose is an attorney at law of New Jersey practicing with the firm of De Rose, Spinrad and Schneider in East Orange.
2. On July 29, 1974, pursuant to an appointment by the Governor with the advice and consent of the Senate of New Jersey, De Rose was sworn as the New Jersey member of the Waterfront Commission of New York Harbor and thereupon assumed the duties of that office.
3. De Rose accepted the appointment with the understanding that the position would continue as a part-time post and that he would be able to continue in the active practice of law. The Governor acknowledges such understanding with De Rose, made during discussions with him prior to his appointment.
4. In early 1975 the Governor became aware that De Rose's law firm had entered into a five-year retainer agreement with Porter and Ripa Associates, Inc., an engineering firm, for the monthly payment of $10,000 by way of compensation. The retainer agreement, dated January 15, 1974, required the law firm, not merely De Rose, to make its members available at all times for the purpose of rendering the following enumerated professional services:
a. The rendering of general legal advice and opinions concerning all aspects of the business of client.
b. The negotiation, preparation and review of contracts entered into by client with third persons, including employees of the client.
c. The preparation and review of Environmental Impact Statements required by the National Environmental Policy Act of 1969 and subsequently enacted state statutes and regulations.
d. Review of and response to correspondence, attendance at meetings as requested, response to and initiation of phone communication as requested.
e. The institution or defense of any lawsuit in any court in New Jersey, before any administrative body, or before any arbitrators or mediators.
f. All other legal duties not specifically set forth herein which reasonably and necessarily relate to client's interests.
5. The Governor then requested an opinion from the Attorney General of New Jersey as to whether De Rose's legal representation of Porter and Ripa Associates, Inc., while a member of the Waterfront Commission, violates the New Jersey Conflicts of Interest Law. That opinion, dated April 9, 1975, was duly rendered to the Governor with this conclusion:
There can be little doubt that De Rose is a state employee within the meaning of the conflicts statute. This much resolved, there is strong evidence of a conflict of interest in De Rose's continuing agreement to represent Porter and Ripa before the D.E.P. [Department of Environmental Protection], as well as other evidence of a potential conflict of interest due to the adverse interests which may be espoused by the D.E.P. during its hearings. Although the issue is not free from doubt, the forceful language of the Conflicts of Interest Law and its accompanying legislative history strongly suggest that this situation be rectified in line with the remedies proposed above.
6. On May 7, 1975 the Governor wrote to De Rose as follows:
For several days I have tried to contact you without success. Your office indicated that you were in Beirut and could not be reached.
I have received a Memorandum of Law from the Attorney General which concludes that your representation of Porter & Ripa Associates, Inc., while a member of the Waterfront Commission, violates the conflict of interest provision of New Jersey law. I am attaching a copy of the Attorney General's report on this subject. The Attorney General has informed me that in the course of preparing this report, he considered carefully the arguments on the legal points which you made to him.
The normal procedures would require that the Attorney General forward this report to the Executive Commission on Ethical Standards for appropriate action. In the circumstances, I believe it would be preferable for you to resign your position as a member of the Waterfront Commission. This action would, in my judgment, be in the best interests of the State and of the Commission. I have previously indicated my belief that membership on the Waterfront Commission should become a full-time responsibility, and I intend to take appropriate steps toward that end.
I hope you will agree that a voluntary resignation is the best way to resolve this matter.
s/ Brendan T. Byrne, GOVERNOR
7. De Rose refused to resign, and on the next day, May 8, 1975, the Governor issued Executive Order No. 21 which ...