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Kenny v. Byrne

Decided: October 5, 1976.

WILLIAM E. KENNY AND CATHERINE MCGOVERN HAVRILESKY, PLAINTIFFS-APPELLANTS,
v.
BRENDAN T. BYRNE, GOVERNOR OF NEW JERSEY AND INDIVIDUALLY, WILLIAM F. HYLAND, ATTORNEY, GENERAL OF NEW JERSEY AND INDIVIDUALLY, ET AL., DEFENDANTS-RESPONDENTS



Carton, Kole and Larner. The opinion of the court was delivered by Larner, J.A.D.

Larner

[144 NJSuper Page 247] This case involves an attack upon the constitutionality of an executive order of the Governor requiring high echelon state employees to file financial disclosure statements.

On March 12, 1975, Governor Byrne issued Executive Order No. 15 which requires certain employees of the Executive Branch of State Government to file for public disclosure comprehensive financial statements of all assets and liabilities, business interests and sources of income. Employees affected by this order are the heads and deputy or assistant heads of principal departments and the heads and assistant heads of divisions of the principal departments. Executive Order No. 15 [1974] N.J. Laws 772-776. Approximately 150 employees are in these categories.

Plaintiffs are both employed in the Executive Branch of State Government and are subject to the order. William E. Kenny is Assistant Secretary of Agriculture and Catherine McGovern Havrilesky is Director of Field Services in the Department of Education. They have complied with the requirements of the order by filing financial statements with the Governor, the Executive Commission on Ethical Standards and the Attorney General. The major thrust of their complaint and oral argument on appeal was focused upon the validity of the order's directive that the Commission file a copy of each statement with the Secretary of State for public inspection and copying, in accordance with the provisions of the Right to Know Law, N.J.S.A. 47:1A-1 et seq. They assert that this provision mandates full public disclosure without means of assuring confidentiality, and thus constitutes an impermissible invasion of their privacy.

Plaintiffs' action was brought in the Chancery Division to restrain the public disclosure of the financial data filed pursuant to the executive order. The trial judges, within the framework of the pleadings, properly considered the matter as a narrow issue bringing into question solely the order's requirement that the statements be filed with the Secretary of State subject to public inspection under the Right to Know Law. The judge concluded that such a requirement was valid and without constitutional infirmity and entered summary judgment for defendants.

Interestingly enough, plaintiffs' counsel at oral argument reiterated this limited attack on the order, pointing out that plaintiffs had no objection to the filing of the financial statements with the Governor, the Executive Commission on Ethical Standards and the Attorney General in the form required by the order, so long as the data was kept confidential and not available for public inspection. Nevertheless, appellants' brief has interlaced therein attacks on the constitutional validity of the substantive provisions of the order, and the briefs of the State and amicus have responded accordingly.

In view of the importance of the public issue involved and the precedential impact of our decision upon nonparty state employees, we deem it appropriate to consider this appeal not only on the limited issue presented to the trial court but also on the broader issues involving the constitutional validity of the order.

I

At the outset we observe that plaintiffs' argument, centered upon the provision for filing of the financial statements with the Secretary of State, has no merit whatever. In fact, this provision of the order is only significant as a matter of administrative detail, designating the office of the Secretary of State as the permanent depository for the filed statements. Such filing with the Secretary of State does not add or subtract from the public disclosure which would be available were the filing limited to the Executive Commission on Ethical Standards.

This conclusion is derived from the interplay of the Right to Know Law (N.J.S.A. 47:1A-1 et seq.), the Conflicts of Interest Law (N.J.S.A. 52:13D-12 et seq.) and Executive Order No. 15. The Conflicts of Interest Law (N.J.S.A. 52:13D-21) establishes the Executive Commission on Ethical Standards in the Department of Law and Public Safety. It has certain functions relating to complaints, investigations, hearings, determinations and advisory

opinions involving violation of the Conflicts of Interest Law by employees of the Executive Branch of State Government. As a duly constituted Commission, all its records are subject to public inspection under the Right to Know Law (N.J.S.A. 47:1A-2) unless mandated to the contrary by any other statute, legislative resolution, executive order, court rule, administrative regulation or federal law. See Irval Realty v. Bd. of Public Utility Comm'rs , 61 N.J. 366 (1972). Neither the order nor any other statute or regulation contains a limitation on the public inspection of these records filed with the Executive Commission on Ethical Standards. The order merely directs the Commission to review the statements for their conformity with the requirements and other applicable provisions of law, and when approved, to file them with the Secretary of State.

Since no exception has been carved out by any official edict for curtailment of public inspection of the financial disclosure statements required by Executive Order No. 15, they would be readily available for public inspection when lodged with the Executive Commission on Ethical Standards. The additional provision for filing with the Secretary of State thus adds no greater opportunity for public scrutiny than a limited filing with the Commission. It is for that reason that plaintiffs' narrow objection to filing with the Secretary of State was held to be specious by the trial judge and is considered equally specious by this court.

II

Appellants' brief raises the question of the authority of the Governor to issue the executive order, contending that it is ultra vires and beyond his constitutional powers. This contention is manifestly without merit.

The Governor is vested with the executive power of the State. N.J. Const. (1947), Art. V, ยง 1, par. 1. As the head of the Executive Branch of government he has the duty and power to ...


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