On appeal from the Superior Court, Law Division, Mercer County.
Deighan, R.s. Cohen and Brochin. The opinion of the court was delivered by R.s. Cohen, J.A.D.
[238 NJSuper Page 85] Defendant Eugene Byrne, a Regulatory Officer employed by the Board of Public Utilities (BPU), received a subpoena to appear before an investigator of the New Jersey Executive Commission on Ethical Standards (ECES). He declined to appear, and ECES applied to the Law Division to enforce the subpoena. R. 1:9-6(b). The Law Division denied the application and quashed the subpoena. ECES appealed. We affirm, but for reasons different from those of the Law Division. We hold that the 1987 BPU code of ethics, a possible violation of which was the motivating reason for the ECES investigation
and subpoena, was invalidly adopted, thus gutting the purpose of the investigation.
Some statutory background is necessary. BPU, in one form or another, has regulated public utilities since 1911. L. 1911, c. 195. In 1948, the former Board of Public Utility Commissioners was made a principal executive branch department called the Department of Public Utilities. N.J.S.A. 48:2-1. The Board itself was "continued and is designated the head of such principal department." Id. The Governor, who appointed the three commissioners with the advice and consent of the Senate, designated one of the commissioners as President. The President of the board was statutorily empowered to:
be its presiding officer and the chief administrative officer of the Department of Public Utilities. [ N.J.S.A. 48:2-1.1].
In 1977, the Department of Public Utilities was abolished and its functions, powers and duties were transferred to the Board of Public Utilities, which was established in the Department of Energy; "provided, however, that such board shall be independent of any supervision or control by the department . . . except as otherwise expressly provided. . . ." N.J.S.A. 52:27F-6(a). All functions, powers and duties of the President and the Commissioners were transferred, without alteration, to BPU. N.J.S.A. 52:27F-6(d).
In 1987, the functions, powers and duties of BPU and the positions of President and Commissioners were transferred and continued unchanged "in, but not of" the Department of the Treasury, "independent of any supervision or control by" the Department. N.J.S.A. 52:18A-2.1a. The "in, but not of" formula sprang from the constitutional requirement that all executive functions be allocated among 20 principal departments, N.J. Const. (1947) Art. 5, § 4, para. 1, and the competing need for agency independence.
Defendant Byrne is a New Jersey attorney, employed by BPU since 1971, first as a Hearing Officer and, since 1978, as a Regulatory Officer. His duties include the drafting of reports,
decisions, orders, rules and regulations for BPU. He also advises BPU on policy matters, reviews initial decisions of administrative law judges, and drafts BPU final decisions.
Since 1972, Byrne has been subject to a BPU code of ethics. In that year, the Board of Public Utility Commissioners adopted a code whose effect, among other things, was to permit attorney employees to practice law except in circumstances that would create a conflict of interest.
In June 1987, the President of BPU adopted and circulated a new code of ethics to be effective July 1, 1987, ...