On appeal from an Advisory Opinion of the Executive Commission on Ethical Standards.
Petrella, Dreier and Baime. The opinion of the court was delivered by Petrella, P.J.A.D.
The Civic League of Greater New Brunswick, Inc. (League) (previously known as the Urban League) filed a notice of appeal from an advisory opinion*fn1 issued by the Executive Commission on Ethical Standards (Commission) (see N.J.S.A. 52:13D-21) relating to its representation by certain professors employed by Rutgers, The State University (Rutgers). The advisory opinion had been sought by the League as a result of the transfer of certain Mt. Laurel*fn2 cases to the Council on Affordable Housing (COAH) created by the Fair Housing Act (N.J.S.A. 52:27D-301 et seq.) which became effective on July 2, 1985. We affirm the determination of the Commission.
The COAH is in the Executive Branch of State Government and was established "in, but not of the Department of Community Affairs." N.J.S.A. 52:27D-305a. The designation "in, but not of" is a result of the requirement in the 1947 New Jersey Constitution, Art. V, § 4, par. 1, which mandates that all executive and administrative offices are to be allocated to one of the "principal departments," except for "temporary commissions for special purposes."*fn3 See Richman v. Neuberger, 22 N.J. 28, 33
(1956) and Richman v. Ligham, 22 N.J. 40, 49 (1956).
Since 1983 the League has been represented before the courts in Mt. Laurel litigation against various municipalities in large part by attorneys on the staff of the Rutgers Law School Constitutional Litigation Clinic (Clinic) of Rutgers who are either law school professors or Clinic staff attorneys employed by Rutgers.
As a result of the transfer of some of the disputes with municipalities in the League's Mt. Laurel case to the COAH, see Hills Development Co. v. Bernards Tp., 103 N.J. 1, 19-20 and 65 (1986), the League requested an advisory opinion on June 4, 1986 from the Commission as to:
whether certain Rutgers Law School professors and staff attorneys . . . may continue to represent the Civic League of Greater New Brunswick . . . in connection with its claims against the municipalities of Cranbury, Monroe, Piscataway, South Brunswick, and South Plainfield (hereafter referred to collectively as 'the Mt. Laurel matters') which have been transferred from the Superior Court to the Council on Affordable Housing. . . .
There is no dispute that the League is a private, nonprofit organization. It is conceded that the COAH is a "State agency" as defined in N.J.S.A. 52:13D-13a and that Rutgers' employees in the Clinic are "employees of Rutgers." The League asserts that the Rutgers' employees "are receiving no fee in connection with their representation of the Civic League," and have no "personal or pecuniary interest" in the outcome of the League's litigation. The State does not suggest that any "financial" or "actual" conflict is present here. However, we note that the court recently decided Urban League of Greater New Brunswick, et al v. Township Committee of the Township of Cranbury, 222 N.J. Super. 131 (App.Div.1987),
which held on the League's appeal that attorneys' fees may be awardable under the federal Civil Rights Act.*fn4
In its brief on this appeal the League argues that there is no violation of the New Jersey Conflicts of Interest Law, N.J.S.A. 52:13D-12 et seq. (Conflicts Law) by the Rutgers' employees who are its attorneys because there is no actual conflict. The League argues that the "State employees" teach in the law school clinic and the representation arises in connection with appropriate educational duties; that Rutgers' teachers should be permitted to continue to represent the League before the COAH because of the unique circumstances of the Mt. Laurel litigation, and it would be neither just nor fair to deprive the League of their services as attorneys.
In an amicus curiae brief the Public Advocate argues that representation of the League by Rutgers' Clinic attorneys in proceedings before the COAH does not violate the Conflicts Law because such representation is outside the scope of conduct regulated by that law; that Clinic professors and staff attorneys are not "State employees" for purposes of the Conflicts Law, and proceedings before the COAH are brought "on behalf of a municipality" and thus meet an exemption from the prohibitions of the Conflicts Law.
In a February 6, 1987 letter, the Commission determined that
"it would be a violation of § 16(b) [of the Conflicts Law]*fn5 for [the Rutgers employees] to continue with the representation of the Civic League of Greater New Brunswick before the Council on Affordable Housing." The letter also suggested that if there was dissatisfaction, the appropriate route for the Rutgers employees to take was to seek a legislative change. The Commission noted at its January 21, 1987 meeting that in Advisory Opinion No. 4 (December 15, 1972) it had concluded that "Rutgers may properly be termed an 'independent State instrumentality' and thus within the Conflicts [Law] definition of 'State agency.'"
Although the parties to this appeal seem to accept the "opinion" of the Commission as a final agency action from which an appeal may be taken, that position is not binding upon us. Fivehouse v. Passaic Valley Water Comm'n, 127 N.J. Super. 451, 457-458 (App.Div.1974), certif. den. 65 N.J. 565 (1974). Opinions of an administrative agency on which no action is based do not constitute "final agency action" which would be subject to appeal as of right. N.J. Civil Service Ass'n v. State, 88 N.J. 605, 611-612 (1982) (an Attorney General's opinion is not final agency action subject to appellate review); Exxon Corp. v. Tp. of E. Brunswick, 192 N.J. Super. 329, 336 (App.Div.1983), certif. den. 96 N.J. 312-313 (1984) (an "advisory opinion" letter from Director of Division of Taxation to assessors and county tax boards was "merely an advisory opinion rather than a final agency action," and not within Tax Court's jurisdiction to review); Rutherford Lodge No. 547 v. Hock, 1 N.J. Super. 223, 227-228 (App.Div.1949) (opinion of State Alcoholic Beverage Control Commissioner not final decision). The League should have sought leave to appeal pursuant to R. 2:2-4
and R. 2:5-6(a). We could, therefore, dismiss the appeal pursuant to R. 2:8-2. However, on our own motion we grant leave to appeal nunc pro tunc because of the public policy nature of the conflict of interest law question presented.
On June 2, 1971 the most recent version of the Conflicts Law, then limited to and applicable to persons in the executive and legislative branches of government, was approved. L. 1971, c. 182. It became effective on January 11, 1972, and replaced the predecessor statute which it repealed, i.e., N.J.S.A. 52:13D-1 et seq. (L. 1967, c. 229). Certain additional amendments were enacted on January 15, 1988 when the Governor signed L. 1987, c. 432. These amendments made the scope of the law even broader.
The focus of the dispute on this appeal centers on a provision of the Conflicts Law contained in N.J.S.A. 52:13D-16b which ...