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In re Determination of Executive Commission on Ethical Standards

Decided: August 2, 1989.

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


On certification to the Superior Court, Appellate Division, whose opinion is reported at 222 N.J. Super. 482 (1988).

For Affirmance -- Justices Clifford, Pollock and Stein. For Reversal -- Chief Justice Wilentz and Justices Handler, O'Hern and Garibaldi. The opinion of the Court was delivered by O'Hern, J. Pollock, J., dissenting.

O'hern

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, N.J.S.A. 52:13D-12 to -27. Specifically, the question is whether the clinical teaching program is prohibited from carrying out its legal mission before a State administrative agency, in this case, the Council on Affordable Housing (COAH). A clinical teaching program at a privately-chartered institution of legal education undoubtedly would be able to appear before State courts and State agencies. We do not believe that the Legislature ever would have intended to disable a clinical education program at our State University. Accordingly, we reverse the judgment of the Appellate Division holding that representation of clients before such State agencies by the clinical legal program and the teaching supervisor is a violation 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

case method, were believed to be skilled in analysis but unskilled in serving client needs. The response has been for law schools to afford students "hands-on" experience in representing clients. That means participating in client interviews, investigations, preparation of pleadings, and, in permitted circumstances, appearing in court. We have changed our Court Rules to permit the supervised practice of law by third-year law students and recent graduates who are not yet admitted to the bar while participating in approved programs. See R. 1:21-3(b).

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

practice of its members and other public officials appearing before the agencies of government that were under regulation. In 1971, after substantial debate, the Legislature enacted the present conflicts law, declaring that

[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

office or employment in a State agency * * *." N.J.S.A. 52:13D-13(b). "State agency" similarly is defined broadly as

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 any independent State authority, commission, instrumentality or agency. A county or municipality shall not be deemed an agency or instrumentality of the State. [ N.J.S.A. 52:13D-13(a).]

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).*fn1 We must ask whether the teaching role of a Rutgers

University professor evokes any of those concerns that prompted the Legislature to enact conflict-of-interest provisions regulating the conduct of New Jersey public officials, and whether application of the law would frustrate the purposes of the Rutgers charter.

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, N.J.S.A. 52:27D-301 to -329. For some years prior to the act, the Rutgers Clinic had been representing the Civic League, a nonprofit organization representing the interests of low- and moderate-income persons, in certain claims before the Superior Court. At no time was the representation by the University or its teaching clinic ever questioned as presenting any appearance of impropriety. Following the enactment of the Fair Housing Act, and in accordance with its provisions, litigation was transferred to the COAH for exhaustion of its administrative procedures. See ...


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