As a governing body member, have you ever encountered a situation involving your town in which you thought to yourself “if only I could get to the bottom of this?” A municipal department is in upheaval. Accusations and innuendo are rampant. Efficiency, productivity and morale are on a downward spiral. As a decision maker, you need to evaluate real facts, not hearsay.
Governing bodies have access to extraordinary powers in the appropriate circumstances to assist them in decision making. Courts have long recognized that from the power to legislate flows the power to investigate matters which fall within the jurisdiction of the legislative body. See historical citations at In re Shain, 92 N.J. 524, 530 (1983).
Early in the last century, the state Legislature codified the powers that a municipal governing body has when it constitutes itself as an Investigation Committee. N.J.S.A. 40:48-25 et. seq. The Investigation Committee may subpoena documents or testimony from any person within the State of New Jersey and may administer oaths to all witnesses appearing before it. If such a person wilfully testifies falsely, he or she shall be liable for the penalty for perjury. If a witness refuses to testify, that matter is referred to the Superior Court, which would deal with the refusal in the same manner as if that refusal had been committed before the Superior Court. Our state’s highest Court has upheld convictions for refusal to appear before a legislative Investigation Committee. State v. Brewster, 89 N.J.L. 658 (E. & A. 1916).
A decision to use the powerful Investigation Committee tool should not be made lightly. Although an extraordinary power, forming an Investigation Committee can consume excessive time or money, it can be fraught with potential due process violations. For that reason, the Investigation Committee should have ready access to counsel all along the way, from the Investigation Committee’s formation through the subpoenaing of witnesses and documents to the hearing and the use of the information which is gleaned from the process.
A wide scope of matters may fall within the Investigation Committee’s jurisdiction. Generally, if the matter being investigated is within the jurisdiction of the governing body, it is an appropriate subject for investigation. For instance, if there appears to be deep-seated problems with a particular municipal department and the constantly surfacing thirdhand stories and innuendo have jaded the governing body, it may constitute itself as an Investigation Committee with the power to conduct formal proceedings and compel the production of evidence under oath in order to sort out hyperbole from reality.
An Investigation Committee’s jurisdiction extends beyond just inquiry into the conduct of employees. New Jersey Courts have recognized the ability of a properly constituted Municipal Investigation Committee to investigate the actions of one of its own members, Eggers vs. Kenny, 15 N.J. 107 (1954); and to investigate the conduct surrounding mayoral appointments, including subpoenaing the Mayor to appear before it and give testimony under oath. In Re: Shain, 92 N.J. 524 (1983).
Additionally, the Municipal Investigation Committee may conduct an investigation into the operations of the local public library, Board of Trustees vs. Union City, 112 N.J. Super. 484 (Ch. Div. 1970), aff’d. 116 N.J. Super. 186 (App. Div. 1971); or the conduct of the local board of education. Board of Education vs. Union City, 112 N.J. Super. 193 (Law Div. 1970), aff’d. 118 N.J. Super. 435 (App. Div. 1972).
An Investigation Committee has even been found to have the power to conduct an investigation into certain aspects of a local non-profit corporation’s functions. In Waterford Township Civic and Events Association, et al. vs. Waterford Township Municipal Investigation Committee, 2006 N.J. Super. Unpub. Lexis 2642 (Docket No. A-5928-03T5), the Court held that the Municipal Investigation Committee may examine the activities of a non-profit that takes place on public property. The Investigation Committee could subpoena information concerning insurance coverage that the non-profit had while using public property as well as the manner in which the non-profit select groups to participate in sponsored events held on municipally owned property. The Court did find that there was a limit to the Municipal Investigation Committee’s ability to investigate the non-profit’s general operations: municipalities could only investigate non-profits activities as they related to the municipality.
When determining if a particular matter would be appropriate for investigation by a Municipal Investigation Committee, a governing body should consult local counsel from the beginning of the process.
Once a governing body determines that a Municipal Investigation Committee will be formed, it should constitute that through detailed resolution. The resolution should not merely memorialize the formation of the Investigation Committee, but should detail the scope of the matter to be investigated. At this point, balance is the key. The scope of the investigation should be sufficiently detailed and focused as to convince a Court, in the event of challenge, that the municipal governing body is not merely engaging in a “witch hunt.” However, the resolution should describe the matter expansively enough to anticipate and legitimize the investigation of matters that may come to light as the investigation unfolds.
The Resolution establishing the Investigation Committee should also detail its authority to issue subpoenas and compel the attendance of witnesses and documents; the detailing of these powers gets the attention of those who may not otherwise take the investigation seriously. Further, the resolution should affirm that the Investigation Committee, at the end of its charge, shall issue a report to the governing body—even though they may be composed of the same people. Furthermore, the resolution should recognize that after an Investigation Committee issues such a report, the governing body may then initiate and take separate action, including personnel action, which will be preceded by all of the substantive and procedural due process requirements that must be observed by a governing body.
In the event of a challenge to the proceedings before the Investigation Committee, these details would ensure that the reviewing Court will understand that the Investigation Committee was not holding personnel hearings in its capacity as a municipal governing body, but was strictly conducting an investigation, and perhaps questioning employees and other personnel, as part of its fact-finding function as an Investigation Committee. It is vitally important that governing body and Investigation Committee members realize that they have two separate and distinct hats to wear and that they may have to observe different processes in each role. See Evanko v. Duff, 63 N.J. Super. 548, 555 (Law Div. 1960).
The resolution establishing the Investigation Committee should also name a chairperson who will be the presiding officer at the hearings and possess the power to issue, execute or direct subpoenas on behalf of the Investigation Committee as are deemed necessary.
When one reviews the scope of the power possessed by an Investigation Committee, it cannot be overemphasized that organizing one should not be undertaken lightly. Clearly, it is inappropriate to convene an Investigation Committee every time there is a problem in a municipal department, or discontent with a fellow governing body member or the local board of education. Although all of the Court cases to date have been very supportive of the functioning of a Municipal Investigation Committee, it would not take much frivolous exercising of this powerful tool for a Court to strike down such an attempt. While a Municipal Investigation Committee can be very useful and helpful in the right circumstances, used as a means for settling political scores or to attempt to cause political embarrassment would be a waste of taxpayer funds and a waste of time better spent elsewhere
Originally published in New Jersey
Municipalities, Volume 88, Number 6, June 2011