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Wood v. Department of Community Affairs

Decided: August 15, 1990.

CARL R. WOOD, CHARLES J. LYNCH, JAMES J. METZ AND JOSEPH B. SZEBENYI, PETITIONERS-APPELLANTS,
v.
DEPARTMENT OF COMMUNITY AFFAIRS, BUREAU OF REGULATORY AFFAIRS, RESPONDENT-RESPONDENT



On appeal from the Director of the Office of Administrative Law.

King, Shebell and Keefe. The opinion of the court was delivered by King, P.J.A.D. Shebell, J.A.D., concurring.

King

This case involves two issues:

1. Does the Office of Administrative Law (OAL) have jurisdiction to decide if a lawyer-legislator is disqualified under the Conflicts of Interest Law, N.J.S.A. 52:13D-12 to -27 from representing litigants in contested administrative cases?

2. If so, was lawyer-legislator Assemblyman Thomas P. Foy, appearing in a contested Department of Community Affairs (DCA) licensing case, properly held disqualified for conflict of interest?

We answer "Yes" to both questions. We conclude that the OAL had the power to disqualify Mr. Foy and that it properly exercised the power. His proposed appearance before an administrative law judge hearing a contested case under the aegis of the DCA was an appearance before a State agency and was not exempt from the Conflicts of Interest Law. The OAL had the power to rule on Mr. Foy's disqualification even though its ruling conflicted with the prior ruling of the Joint Legislative Committee on Ethical Standards created by N.J.S.A. 52:13D-22.

This is an interlocutory appeal from the final decision of the Director of the Office of Administrative Law, Judge LaVecchia, disqualifying General Assemblyman Foy, an attorney, from representing four appellants in contested case hearings pending in the OAL. The State, through the DCA, sought to suspend or downgrade the licenses of appellants, who are local fire inspectors,

for alleged violations of the Uniform Construction Code Act, N.J.S.A. 52:27D-119 to -141. The State claims that appellants had performed improper inspections on building plan approvals. Mr. Foy*fn1 filed requests for hearings on their behalf and the cases were sent to the OAL as contested matters.

In issue is the application of the Conflicts of Interest Law, N.J.S.A. 52:13D-12 to -27 and, in particular, N.J.S.A. 52:13D-16b, which prohibits members of the State Legislature from representing private parties before any State agency. In response to a request from Mr. Foy, the Legislature's Joint Committee on Ethical Standards issued a letter opinion through its counsel on March 20, 1989 advising that Mr. Foy's representation in this matter would not violate the Conflicts of Interest Law because "an appearance before an administrative law judge generally does not constitute an appearance before a State agency."

The Attorney General, on behalf of the OAL, moved to disqualify Mr. Foy under N.J.A.C. 1:1-5.3, which states in pertinent part:

1:1-5.3 Conduct of lawyers.

In any case where the issue of an attorney's ethical or professional conduct is raised, the judge before whom the issue has been presented shall consider the merits of the issue raised and make a ruling as to whether the attorney may appear or continue representation in the matter. The judge may disqualify an attorney from participating in a particular case when disqualification is required

by the Rules of Professional Conduct or the New Jersey Conflict of Interest Law.

The Attorney General contended that, notwithstanding the Joint Committee's advisory opinion, Mr. Foy's participation in these pending cases would be in violation of the Conflicts of Interest Law and an appropriate ground for his disqualification.

On November 15, 1989 ALJ Goldberg disqualified Mr. Foy from participating as counsel at the contested hearings. Mr. Foy requested and received interlocutory review within the OAL from the Director. See N.J.A.C. 1:1-3.2(c); N.J.A.C. 1:1-14.10(k). On December 12, 1989 the Director and Chief ALJ, LaVecchia, affirmed Judge Goldberg. She confirmed the OAL's jurisdiction under N.J.A.C. 1:1-5.3 to decide the issue of a lawyer-legislator's disqualification in OAL proceedings, concluding: "Attorney ethics involving OAL proceedings are for the OAL to decide, subject to judicial review. That jurisdiction cannot be preempted except by legislation duly enacted and signed by the Governor." We granted leave to appeal, R. 2:2-4, on February 5, 1990 to review this important question. As noted, we agree with Judge LaVecchia and affirm.

Our Supreme Court has ruled that the OAL has the inherent power "to prescribe suitable rules governing its practice and procedure in contested cases, which necessarily include standards governing the qualifications of persons appearing in such matters." Matter of Tenure Hearing of Onorevole, 103 N.J. 548, 557, 511 A.2d 1171 (1986). The Director of the OAL has the express statutory power to "[d]evelop uniform standards, rules of evidence, and procedures . . . to regulate the conduct of contested cases and the rendering of administrative adjudications. . . ." N.J.S.A. 52:14F-5e. To this end the OAL promulgated N.J.A.C. 1:1-5.3, which provides that "[t]he judge may disqualify an attorney from participating in a particular case when disqualification is required by the Rules of Professional Conduct or the New Jersey Conflict of Interest Law." As noted, disqualifications are promptly reviewable by interlocutory application under N.J.A.C. 1:1-14.10(k)5.

Judge LaVecchia disqualified Mr. Foy from representing the four appellants in this matter on the ground that his participation would violate the section of the Conflicts of Interest Law which prohibits attorneys who are also members of the State Legislature from ...


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