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Legal Q & A



Matthew Weng
Matthew Weng
League Staff Attorney

Videotaping Meetings and Indemnity
for Public Employees

Q We recently decided not to reappoint our municipal attorney, and we parted company on good terms. However, he recently attempted to appear before one of the boards that he was the town attorney before with a private client. I had the impression that there are statutes restricting former employees of a municipality from appearing before the boards and/or doing business with the municipality, both generally and as to lawyers. However, I have thus far been unable to find any specific statute or other guidance.  Are there specific rules?

A Unortunately, there are no clear guidelines to be found on the municipal level.  I think most people try to adhere closely to the state level requirements, which can be found at N.J.S.A. 52:13D-17:

“No State officer or employee or special State officer or employee, subsequent to the termination of his office or employment in any State agency, shall represent, appear for, negotiate on behalf of, or provide information not generally available to members of the public or services to, or agree to represent, appear for, negotiate on behalf of, or provide information not generally available to members of the public or services to, whether by himself or through any partnership, firm or corporation in which he has an interest or through any partner, officer or employee thereof, any person or party other than the State in connection with any cause, proceeding, application or other matter with respect to which such State officer or employee or special State officer or employee shall have made any investigation, rendered any ruling, given any opinion, or been otherwise substantially and directly involved at any time during the course of his office
or employment.”

It seems as though the most important consideration is “substantial and direct involvement.”

Attorneys are also governed by the Rules of Professional Conduct, at 1.11(a):
(a) Except as law may otherwise expressly permit, and subject to RPC 1.9, a lawyer who formerly has served as a government lawyer or public officer or employee of the government shall not represent a private client in connection with a matter:

(1) in which the lawyer participated personally and substantially as a public officer or employee, or

(2) for which the lawyer had substantial responsibility as a public officer or employee; or

(3) when the interests of the private party are materially adverse to the appropriate government agency, provided, however, that the application of this provision shall be limited to a period of six months immediately following the termination of the attorney’s service as a government lawyer or public officer.

 

Q What is the current state of law on instituting random drug testing for all municipal employees?

A This is a complicated topic.  There are constitutional issues involved that, many would say, have not been as clearly delineated as they would like.

Commercial Drivers License (CDL) holders are covered by the Federal Department of Transportation’s Federal Motor Carrier Safety Regulations, which requires random drug testing, including reasonable suspicion, post accident, return to duty and follow up.

Here is a quote from the New Jersey Practice Series on Employment Law, published by Westlaw, and written by Marvin M. Goldstein and Stanley L. Goodman: “It is unclear under what circumstances the drug testing of public sector employees would violate the New Jersey Constitution.

The law in this area thus remains unsettled. Previously, a number of courts indicated that random drug testing would be unconstitutional. Other cases, however, indicated that “reasonable cause” drug testing, drug testing as part of a physical examination, and the drug testing of employees in highly regulated industries (including those related to law enforcement) would be constitutional.

Guidance was provided in N.J. Transit PBA Local 304 v. N.J. Transit Corps., where the New Jersey Supreme Court revisited the issue of drug testing for public employees. The Court ruled that requiring drug testing for armed transit officers did not violate the privacy right in the State Constitution laid out in Article I, Paragraph 7. The Court found that the transit officers had a ‘decreased expectation of privacy,’ that the tests were not overly intrusive, and that there was a compelling state interest. As a result, in that case, the random drug testing was not found to have violated the New Jersey Constitution.”

So, as you can see, apart from CDL drivers, drug testing in the public sector is not a requirement, and may only be legal in certain situations.

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

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