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Legal Q & A

Gifts, Forfeiture of Public Office and Attorney Appointments


Deborah M. Kole
League Staff Attorney
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Deborah M. Kole, League Staff Attorney
"style10">Q I s the planning board attorney appointed by the governing body of the municipality, or by the planning board itself?

A While the governing body must provide for the position of planning board attorney by ordinance, the actual appointment is made by the planning board itself under N.J.S.A. 40:55D-24. The planning board also fixes the compensation of the attorney, although it, like all expenditures of the planning board, may not exceed “…exclusive of gifts or grants, the amount appropriated by the governing body for its use.”

This column is for informational purposes only, and is not intended as legal advice.

Q I am a new council member, and I am a little confused as to the law concerning gifts to public officials. I have heard that small gifts may be accepted, but no one seems to be able to tell me what a “small gift” is. Can you please explain?

A Unfortunately, the amount of an acceptable gift or benefit is far from clear. The law states that the offer or acceptance of gifts or other benefits that may be given to influence a public servant’s official behavior is a crime in New Jersey. If the gift or benefit has a value of over $200, it is a crime of the second degree. If the gift or benefit has a value of $200 or less, it is a crime of the third degree. There is an exception for “trivial benefits, the receipt of which involves no risk that the public servant would perform official duties in a biased or partial manner.” [See NJSA 2C:27-10]

The problem is that it is extremely difficult to define the term “trivial.” What one person considers trivial, another person might consider a violation of the law. There are no guidelines and there has been nothing issued from the Attorney General’s office that would provide guidance to the county prosecutors or to public officials. Thus, a public official who receives a gift or benefit worth $200 would most certainly be in violation of the statutes, but the problem arises in addressing gifts or benefits worth less than that amount.

An evaluation of whether a given situation could result in a violation of this statute will depend on the particular facts, but it appears clear that public officials need to exercise caution with respect to the acceptance of gifts and other benefits. If you are in doubt, check with your municipal attorney before you act.

 

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Q I am aware of the statute in the criminal code concerning forfeiture of public office when the office holder is convicted of certain crimes, but I thought that there was another, in some ways stricter, law concerning this subject for Faulkner Act municipalities. However, I have been told that such a law does not currently exist. Is this true?

A The statute you are thinking of, N.J.S.A 40:69A-166, was repealed in 2003. It provided that, in municipalities governed under the Faulkner Act, individuals convicted of offenses involving “moral turpitude” could not hold public office and would forfeit any such office that they already held. The forfeiture of office provision in the Criminal Code, on the other hand, provides that forfeiture of office is required if an individual is convicted of a crime of the third degree or above, or a crime involving dishonesty or touching on his or her public office. However, the individual is forever barred from public office only if the crime touches on his or her public office.

The reason for this repeal was to achieve uniformity in the treatment of such situations throughout the state. This purpose can be seen in the legislation repealing the Faulkner Act forfeiture statute at L.2003, Ch. 145, which states: “Any person holding any public office, position, or employment, elective or appointive, under the government of this State or any agency or political subdivision thereof, on the effective date of this act, shall be subject to disqualification or forfeiture of that public office, position, or employment only pursuant to N.J.S.2C:51-2 and not pursuant to a statute other than the criminal code.”

Q I s the planning board attorney appointed by the governing body of the municipality, or by the planning board itself?

A While the governing body must provide for the position of planning board attorney by ordinance, the actual appointment is made by the planning board itself under N.J.S.A. 40:55D-24. The planning board also fixes the compensation of the attorney, although it, like all expenditures of the planning board, may not exceed “…exclusive of gifts or grants, the amount appropriated by the governing body for its use.”

This column is for informational purposes only, and is not intended as legal advice.

 

 

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