How Much is Enough? Drawing the Lines on Multiple Public Job Holding in New Jersey By Tom O'Neill and Bill Schluter

TIP OF THE ICEBERG

New Jersey took a significant step with a new law banning anyone not already doing so from holding two elected offices at the same time. Dual office holding stifles political participation and government accountability--as detailed in the report One to a Customer: The Democratic Downsides of Dual Office Holding, released in June 2006 by New Jersey Policy Perspective and Demos: a Network for Ideas and Action.

Dual elected office holding, however, turns out to be just the tip of the iceberg. Serious conflicts of interest and obligation, as well as threats to government performance and trustworthiness, arise not only when one person serves as both state legislator and mayor, or mayor and county freeholder. Those problems arise as well from a practice that--our research shows--is more pervasive but, except when a high-profile scandal breaks out, less visible.

Across the state, over 700 elected state, county and municipal officials also hold another, non-elected public sector position. Some hold more than one. New Jersey should now turn its attention to this issue in the effort to promote government that functions effectively in the public interest and a political system that gives less room for public suspicion--often well-grounded--that personal interests come first.

This report examines combined elected and non-elected job holding in New Jersey. It estimates the extent of the practice and assesses its effects on the quality and character of government. It also suggests standards for what should and should not be acceptable--an important task for the leaders of our state to complete.

Two widely reported examples illustrate the mischief possible when one official holds both an elected and non-elected position.

State Sen. Wayne Bryant (D-Camden), was indicted in March on six counts of mail fraud and one count of corruption. He was charged with directing millions of dollars of state funds to the University of Medicine and Dentistry of New Jersey in return for a $40,000 a year no-show job. The indictment also charges that Bryant used his influence as chair of the Senate Budget and Appropriations Committee to get work from other publicly funded entities, including the Gloucester County Board of Social Services, where he billed for his services as counsel. In addition, he is alleged to have arranged for a part-time teaching position at Rutgers-Camden Law School, while using his political influence to attract state aid to the school. The income from his non-elected public positions could triple Bryant's pension. He has pleaded not guilty to the charges.

John Bennett was the Republican leader of the State Senate when a series of newspaper articles in 2003 raised questions about billing by his law firm for millions of dollars of legal work for local governments. He lost reelection in District 12, Monmouth County, in a campaign that focused on his ethics. Most prominent in the allegations against Bennett was that his firm overcharged Marlboro Township by $8,130. The firm had billed the township for $1.6 million over six years. Upon his forced retirement, Bennett took with him the richest retirement package in New Jersey State Senate history: $78,540 a year, made so lucrative by Bennett's work as a municipal attorney. He was not charged with breaking any laws. The firm he leads, Dilworth Paxson, continues to list "government, finance and government contracts” in its list of practice areas and its website includes this statement: “Dilworth Paxson maintains a strong and unique tradition of public service and civic involvement which includes many former and present members of the firm holding a wide variety of positions at the federal, state, and local levels of government."

Though Bryant and Bennett were among the State Senate's best known and most powerful members, public knowledge of their non-elected positions was not widespread. Media coverage was relatively slight, until a federal investigation in Bryant's case and a newspaper expose in Bennett's brought considerable attention. If the mix of elected and non-elected positions--and the attendant questions it raises--goes unnoticed for a long time in the cases of these two prominent officials, what other potentially worrisome conflicts of interest or obligations are involved for those further from the spotlight?

THE FINDINGS

To find out just how widespread is the practice of holding both elected and non-elected public office, we looked at the municipal, county and state levels of government. This report examines only paid positions, as opposed to, say, a mayor serving ex officio on a planning board.¹

Municipal

We looked at the holding of combined elected and non-elected positions by local elected officials in two ways: a detailed accounting for the state's 10 most populous municipalities and a survey of a random sample of all municipalities to identify what other jobs were held by members of the governing bodies. The results of the sample survey provide a basis to estimate the number of combined elected and non-elected office holders among the state's 566 municipalities.

From the survey, we conclude that 600 men and women elected to municipal government positions have at least one other job on a public sector payroll besides their elected post. That is more than 20% of all local officials. Contrast that proportion with the state as a whole, where public employees account for 14% of all workers.

ELECTED OFFICIALS WITH OTHER PUBLIC JOBS

In 32 of the 58 sample municipalities (see Appendix 3) the survey found that one or more officials held another public job—suggesting that, statewide, more than 300 municipalities have people elected to their governing bodies who also hold a non-elected position with a public body. In those 32 sample towns are a total of 60 elected officials who also have paid, nonelected positions with a public body, the source of our estimate that 600 such dual office holders serve in New Jersey. A third of them are employed in public education, either as teachers (15%) or administrators (17%); 20% work in county government; 10% in state agencies; 14% for public authorities. At least one mayor works for his own town government: Carteret Mayor Dan Reiman, elected in 2002, was later appointed and still serves as the borough business administrator.

We also determined the other employment of each member of the governing bodies in the state's 10 most populous municipalities. In these places, just over half of the council members have their "day jobs" in the public sector. No city in New Jersey has more than 26% of its resident workforce in the public sector.

PUBLIC EMPLOYEES SERVING ON COUNCILS IN THE 10 MOST POPULOUS MUNICIPALITIES

Combining elected and non-elected positions is more than twice as common in these municipalities as in the state as a whole, according to our estimate. The mayors of these 10 municipalities are all paid as, or expected to serve, "full-time" in their posts (but, despite that, two held another elective office at the time of the survey). Three of the six Camden city council members worked for Camden County government. In Elizabeth, three of the nine council members worked for the Elizabeth public schools, three for Union County government and one was director of the city's parking authority. Four of Jersey City's nine council members worked for Hudson County and one was assistant executive director of the city's incinerator authority.² In Trenton, five of seven council members were public employees, with two working for Mercer County government, two employed by the school board, and one in a state agency. In Woodbridge, one of the council members was a firefighter in the city's Fire District 1.

County

In establishing the employment of the state's freeholders, we found at least 56 (41%) of the state's 137 freeholders hold another public sector job. That is three times the portion of the state's overall workforce that is employed in the public sector. Some 23 freeholders hold another elective office, 20 at the local level3 and three in the Legislature.

Almost as many freeholders (22) are employed in non-elected public sector positions at the local, county or state level. And 18 others draw a public paycheck as faculty or administrators in schools, colleges or universities. At least two freeholders hold appointed positions as legal counsel to local government.

State Legislature

A dozen men and women who were in the 40-member State Senate in 2006 also held at least one non-elective public job-- and some held more:

1. Martha Bark announced she would not run for re-election after the state attorney general launched an investigation into her jobs at the Burlington Bridge Commission and the Burlington County Institute of Technology. Newspaper reports said she was paid a total of $330,000 over six years doing work for which the agencies provided little to no documentation.
2. Wayne Bryant held many outside jobs in public organizations that, because he was in a position to help or hinder those organizations, drew the scrutiny of the US Attorney, resulting in an indictment alleging corruption involving a low-show position at the School of Osteopathic Medicine, a part of UMDNJ.
3. Joseph Doria has a part-time appointment teaching at Rutgers in addition to being mayor of Bayonne.
4. Sharpe James, no longer Mayor of Newark, is a faculty member in a recently created position at Essex County Community College.
5. Bernard Kenny is not a direct employee of a public agency, but his law practice is heavily weighted towards public clients with billing that included $1.2 million in fees during the mayoralty of David Roberts in Hoboken.
6. Fred Madden, the former acting Superintendent of the State Police, is the acting Director of the Police Academy at Gloucester County College.
7. Robert Martin lists on his financial disclosure form payments from Rutgers Law School for a part-time appointment.
8. Ron Rice served as Deputy Mayor, an appointive position, in Newark until the spring of 2006, when he resigned to run for Mayor.
9. Nicholas Sacco, the mayor of North Bergen, also is an assistant superintendent of the North Bergen School System--a triple office holder.
10. Paul Sarlo is Borough Engineer in Carlstadt, and also indirectly a public employee through engineering fees earned by his employer, Scuzzari-Bishop, in its work for agencies and authorities, including the New Jersey Turnpike. He is also the mayor of Wood-Ridge and apparently an impressive time-manager.
11. Nicholas Scutari is the prosecutor in Linden.
12. Robert Singer lists on his financial disclosure form payments from the Lakewood Municipal Utilities Authority.

Of the 80 Assembly members, 264, or almost 30%, made at least part of their living from public sector employment. Five were teachers or administrators in public schools, four worked in public higher education, three were county undersheriffs (the special implications of which are explored later in this report), five were lawyers in private practice who earned significant income from local government clients, four worked in county government and three for local government--two in firefighting. The list of Assembly members and their other public employment appears in Appendix 1.

In the Legislature, too, the proportion of elected officials in public employment is far higher than the state average--to the point where it seems reasonable to wonder whether employment in the public sector facilitates running for office because it may be easier to win permission to take time off to campaign and serve. Or, conversely, whether holding elected office, in fact, leads to non-elected positions that might not otherwise be available. Would Senators Bennett or Bryant, for example, have been offered their teaching posts and law firm business if they lacked the power and influence that comes with being a leader in the Senate?

WHAT MAKES NEW JERSEY DIFFERENT?

As One to a Customer found, New Jersey appears to lag well behind other states in its sensitivity to the conflicts of interest and obligation that flow from dual office holding. What is it about New Jersey?

Interestingly, combining elected and non-elected positions is not quite as securely enshrined in New Jersey law as is holding two elected offices.

A New Jersey law (enacted in the early 1960s, when court rulings threatened dual elected office holding) specifically permits the holding of two elective offices, such as town councilperson and freeholder or mayor and state Senator. The version as passed by the Legislature also would have affirmatively condoned holding both an elected and non-elected position. That, however, was too much for Gov. Richard J. Hughes. He conditionally vetoed the measure,⁵ forcing a revision that approved holding two elective offices, but was silent on combining elected and non-elected positions. Hughes said, "The public may not be aware that a single individual is holding two offices which have duties and responsibilities potentially or actually in conflict.... Considering the very real possibilities for actual conflict, I can find no overriding justification for permitting local officeholders or employees to hold an additional office or appointive positions where incompatibility does in fact exist between the duties and obligations of such offices and positions."

But if the law did not expressly allow combining elected and non-elected positions, neither did it do anything to restrict the practice. In the 45 years since Hughes's veto message, the system has failed to scrutinize combined elected/non-elected office holding for incompatibility or conflicts.

Does the multiplicity of jobs needed to operate New Jersey's 566 municipalities, more than 600 school districts and 21 counties outstrip the number of citizens interested in public service? Are the relatively few who want to serve, therefore, forced to occupy more than one position? Are there simply more slots than publicly spirited New Jerseyans? Probably not. Although surveys have shown the level of interest in state affairs in New Jersey is lower than in most other states, the patterns and dynamics of holding two public sector positions in New Jersey make it clear that something else is afoot. Those who mix elected and non-elected jobs are in many cases strengthening their personal positions rather than filling jobs other citizens are reluctant to fill.

Perhaps the answer lies in New Jersey's political culture, the value system that underlies the operations of politics. In New Jersey, politics tends to be seen as a marketplace. The currency of politics becomes the mutual obligations arising out of individual relationships, while in other states ideology or a consensus on the public good can be the strongest force in the system. Political scientist Daniel Elazar has posited that each US state can be categorized as having one of three types of political culture.⁶ He called those three cultures moralistic (such as in Oregon, Vermont,Washington and Wisconsin), individualistic (such as in New Jersey,New York, Pennsylvania and Ohio), and traditionalistic (such as Georgia, Kentucky, Mississippi and Tennessee).

In states with a moralistic culture, people tend to view government as a positive force that should work for the common good. In the individualistic culture, politics tends to be seen as more utilitarian, as the pursuit of self-interest. In states with a traditionalistic culture, politics is the sphere of inherited elites that work to maintain the social order. These distinctions may oversimplify political life and ought not be applied to every person in politics. Still, they offer useful insights into what constitutes "business as usual."

In an individualistic system such as New Jersey's, the prime motive in seeking and holding public office is to control the distribution of favors and rewards. Among the most prized favors and rewards, of course, are jobs. In a state fragmented into more than 1,100 local governments and school districts and where interest in state affairs is low, the conditions seem ideal for developing and sustaining a political culture that--among elected officials--accepts multiple office holding as a legitimate, even desirable, feature of political life.

Changing the system is difficult, in part because of the self-reinforcing effect of political arrangements dominated by strong party organizations in one-party political jurisdictions. The perceived domination of the process by insiders discourages many outsiders from thinking they can make a difference. The public's fatalism or cynicism is reflected in the observation of Michael McGuire, a Camden city councilman and county employee who fended off criticism of the influence exerted on him by the county's powerful Democratic organization by observing, "If it's not one machine [running things], it's another...It's like buying a lawn mower. You want the better machine."

In some places in New Jersey the political culture is even more individualistic than others. In Hudson County, for example, a Jersey Journal review of state pension records showed that roughly 440 government workers collect paychecks from at least one county agency and hold at least one other public job. Their combined salaries--including those of one employee with apparently prodigious skills and energy who held seven jobs--amount to more than $36 million. "It's a cultural problem in Hudson County, clearly," Jersey City Councilman Steve Fulop told the newspaper. "People still have this machine party mentality that you repay people with multiple jobs."⁷

The nine-member, all-Democratic, Hudson County delegation to the Legislature was described by the Star-Ledger as the "greatest impediment to many of the property tax reform ideas backed by Governor Jon Corzine." He no doubt hoped they were listening hard when he asked the Legislature to "set aside parochialism and personal interest in favor of the common good" and vote for fundamental tax reform and to limit dual office holding by legislators. Seven members of that legislative delegation hold taxpayer-funded jobs in addition to their elected office. Four of them are mayors.

To describe New Jersey's political culture as accepting of dual office holding and of combining elected and non-elected positions, however, is not to suggest the practice is popular among the public at large. Indeed, a recent Quinnipiac University poll found that 79% of New Jersey voters said state lawmakers should not be allowed to have another government job of any kind, elected or otherwise.⁸ But the voting public, as opposed to political insiders, generally becomes aware of the scope of this practice only when scandals erupt or the press makes an issue of it.

The vast majority of those who combine elected and non-elected positions are not relatively high-profile State Senators or Assembly members, but county or local elected officials with middle-level public jobs. These are people who can, and generally do, disappear from public sight, camouflaged among the state's 566 municipalities and 613 school districts like deer in the woods. Even the nature of media coverage in New Jersey becomes protective of those who combine elected and nonelected positions. With so many governmental jurisdictions, the press lacks the resources to pay the sort of close attention that might make the practice more difficult to maintain.

And unlike Governor Corzine, who made an issue of dual elected office holding, governors--the most visible figures in New Jersey's political landscape--have not called attention to the practice nor fought for reform. Until recently, fighting dual office holding has not been seen as worth the expenditure of a governor's limited political capital.

DEFINING THE PROBLEM

To move beyond anecdotes--some might call them horror stories--about elected officials who hold other, non-elected, public sector jobs requires a definition of the problems created by the continued existence of this practice. Clarifying these problems will help point the way to effective solutions.

The concerns raised by holding two or more elected and nonelected positions are at least as serious as those raised when one person holds two elective offices simultaneously. The practice of elected officials holding a non-elected public position can:

• Reduce accountability, by providing insulation from political accountability in the elective office and protection from serious or honest performance evaluation in their day jobs. In the public workplace, the supervisor of an elected official may well be deferential when it comes to attendance and performance. That arrangement makes it easier to campaign, fund-raise, shore up political defenses and ward off opposition.
• Frustrate the checks and balances built into the system by the doctrine of separation of powers. When a law enforcement officer serves as a legislator--writing the laws he or she will then enforce--that doctrine is violated. Since our system is founded on separation of powers, this combination of public employment and elective office can undermine the structure and functioning of government. The state Department of Law and Public Safety recognizes this problem by administratively banning its employees from elective office. But at least one local police chief and three county undersheriffs serve or have served in the Legislature. Note that banning law enforcement officers and others who administer or enforce state laws and regulations, from holding elective public office would not bar them from seeking it. Upon election, however, they would be required to resign from their employment. Upholding the doctrine of separation of powers would not erode the right of any citizen to seek public office.
• Block the political ladder for emerging aspirants by concentrating political power. The elected official who enjoys the perquisites of a low-show job in a public agency is shielded from competition that could open up the system to all comers. That low-show arrangement can usually be maintained only in one-party jurisdictions. There, the party leader is already an effective gate-keeper, which makes the system even less open to intra-party competition. Even if these jobholders work hard, the fact they each hold two positions means someone else cannot have one.
• Raise questions about how tax dollars are spent. When the Superintendent of the Jersey City public schools, for instance, spends two days a week in Trenton as an Assemblyman, and takes time to campaign for election and administer a legislative district office, it is clear that he is spending less time as Superintendent than that job's $210,520 salary contemplates. The same analysis applies to those who are paid substantially less. The effects that two salaries, one of them for a low-show position, have on pensions make this an expense that keeps on costing the taxpayers for decades.
• Degrade the tone of public life by raising the stakes of politics. When an elected official's principal employment is in a public job, his or her entire livelihood may be at stake, not just in every election but in every interaction with the party leaders whose approval is needed to hold both the job and the office. Placating the party organization whose backing is needed (most crucially in a primary election) to continue in office becomes a priority. The scramble for campaign contributions becomes more urgent and the cost of elections soars. Any campaign tactic likely to increase the chance of victory becomes acceptable.

Combining elected and non-elected positions makes possible mutual back-scratching that can benefit the participants at the public's expense. Consider how the mayor of Beachwood Borough landed a job in the Ocean County fire and first aid training station. The tale begins with James F. Lacey, an Ocean County freeholder appointed to a position in the state Department of Environmental Protection during the administration of Gov. Christie Whitman. When the Democrats took over in Trenton he lost that job, but soon was hired as administrator-- on a party-line vote--in Point Pleasant Beach, where he had been a councilman. In 2005, when Point Pleasant Beach went Democratic, Lacey's position was no longer secure. Just in time for him, nearby Republican Beachwood created the position of administrator, and selected Lacey for the $92,000 job. Six months later, the Freeholder Board on which Lacey sits appointed Beachwood Mayor Harold Morris as confidential aide to the county fire director. Morris had championed Lacey's appointment in Beachwood.⁹

Some of the problems created when a local councilperson holds a county job are on display in Camden. The Camden Councilman with the lowest attendance record at the time of our survey, Michael McGuire, is employed as a housing inspector by the Camden County Department of Community Affairs. He made $20,000 as a councilman and $42,000 as a county worker. McGuire blames the pressure of his county job, in part, for his poor attendance at council meetings. "I have to watch my time....I work for the county. I have an obligation to county taxpayers," he explained. But there's more to the story, as the Philadelphia Inquirer went on to report. A fellow member of the Council told the paper, "Mike is having problems coming because the county is punishing him for endorsing [Mayor Gwendolyn Faison] in the last election."¹⁰ (County Democrats had backed Faison's opponent, Assemblywoman Nilsa Cruz- Perez.) The number of council members who hold full-time jobs with the county—three—gives room for suspicion that the Council may be more responsive to the Camden County Democratic organization than to the needs of the city. McGuire is not running for re-election this year.

MATTERS OF DEGREE

It would be an overstatement to say that every instance of combining elected with non-elected job-holding causes a problem.

The extent to which combined elected and non-elected office holding should be of concern varies with the level of the elective office and the public employment of the person involved. For some categories of public employment, such as law enforcement, the separation of powers issues can be so fundamental that holding elective office would seem to be intrinsically incompatible. Other public employees, such as a school teacher who gets elected to the town council, would appear not to raise issues of incompatibility or conflict of interest. Similarly, a teacher or an assistant principal serving in the Legislature might face potential conflicts when voting on measures affecting education, but those conflicts are no different from those encountered by a lawyer/legislator voting on measures affecting that profession, or a drugstore owner voting on pharmaceutical insurance coverage. Established methods exist to deal with such conflicts as they arise.

But, more serious concerns arise when a school's principal, assistant superintendent or superintendent serves in the Legislature. Those school officials carry a heavier burden of job responsibilities, and those responsibilities will inevitably conflict with their obligations as legislators. Their service could raise serious issues arising from the doctrine of separation of powers.

Another concern is the sequence in which the combination of elected and non-elected jobs occurs. The public employee who is elected to a town council raises fewer questions than someone who receives a tax-supported job after being elected. Such a job might, for example, come less on the merits than as a reward from the party leadership, and the expectations for performance and attendance might be loose.

DEFINING A SOLUTION

The solution to the conflicts and problems inherent in holding two elective offices was clear: ban dual elective office-holding in all instances. But determining which public sector nonelected employees should be restricted from serving in which elective offices demands a solution attentive to nuance.

Resolving these questions requires sensitivity not just to black and white, but to shades of gray. An outright ban or overly restrictive limitation would fail to take into consideration the apparently harmless nature of some elected/non-elected job combinations. It would threaten the right of citizens to hold elected office. And it could have the effect of barring all government employees from holding elected office, meaning that all elected officials would come from the private sector. Such an outcome would distort the perspectives of elected bodies even more severely than the current over-representation of those from the public sector.

Combining elected and non-elected positions, therefore, should be banned only in situations where the person carrying out the functions of the positions is required to choose between clashing duties. Vesting that choice in an individual is clearly contrary to the public interest. It is prohibited by the doctrine of incompatible offices, though this doctrine obviously is not now regularly enforced in New Jersey. The New Jersey Supreme Court defined the conflict as "the contrariety and antagonism [that] would result from the attempt of one person to discharge faithfully, impartially, and efficiently the duties of both offices...render[s] it improper for an incumbent to retain both."11

Drawing lines is easier said than done. But a good place to start is by recognizing that conflicts and difficulties that arise from combining elected and non-elected positions fall into five broad categories.

1. Incompatibility or conflict among responsibilities: cases where the responsibilities of the two positions appear to be mutually exclusive, or where the doctrine of separation of powers would be eroded. One example would be voting on laws and then being charged with enforcing those laws.
2. Time demands: where the public good could suffer from someone with full-time public sector employment serving in an elected body that meets during normal working hours and has the demands of campaigning and raising money. And if that public employee holds three positions, time issues are certain to be raised even if only one of the positions is full-time. Legislators have estimated that serving in the Assembly or Senate takes 70% of their time. Sen. Nicholas Sacco’s days have the normal complement of 24 hours, so his legislative responsibilities and his duties as a mayor and assistant school superintendent¹² would suggest something gets slighted. Sacco has estimated that as mayor he performs 400 weddings a year. That startling figure became public when he considered raising his mayoral salary by $10,000 in exchange for turning over to the town his fees for marriages.
3. Discretion and supervisory responsibility: where a public employee holds a position to which many subordinates report, or as in the case of a law enforcement officer, has wide discretion. This creates the potential for far more conflict and even abuse than with someone whose nonelected job description is specific, controlled by others and involves little supervisory work.
4. Sequence of jobs: a municipal employee who campaigns for and wins elected office in another town is in a situation quite different from someone given an appointed public position after having been elected to the Legislature or other public office. In the latter case, questions can arise as to why the person got the job and to whom he or she will be accountable (what the boss giveth, the boss may taketh away).
5. Conflict of interest: what, for example, are the implications of a municipal prosecutor raising funds for his campaign for legislative office? Can a municipal prosecutor collecting donations for re-election to the State Senate ever avoid the appearance of opening a channel to favor-seekers? A municipal prosecutor who is also a state senator can exercise senatorial courtesy to block the appointment of a county prosecutor, an office that exercises considerable discretion as a check on local law enforcement. Perhaps more seriously, he or she could block or advance the appointment of a judge before whom the prosecutor would appear.

CASE STUDY: THE UNDERSHERIFF

The issues involved in arriving at a well-reasoned decision respecting the right of citizens to hold public office can be illustrated by analyzing whether county undersheriffs who serve in the Legislature can "discharge faithfully, impartially and efficiently the duties of both offices." Three undersheriffs were serving in the Assembly at the time of our survey: Joseph Cryan, Gordon Johnson and Alfred Steele.

New Jersey law bans county sheriffs from holding any other civil office.¹³ Unlike sheriffs, undersheriffs are not elected. They are appointed by, and serve at the pleasure of, the sheriff and hold authority to execute all the ordinary duties of the sheriff.¹⁴ Despite what appears to be a significant overlap of functions, undersheriffs serve in the Assembly in spite of the ban on sheriffs doing so. As one of two principal county law enforcement officials, along with the prosecutor, it has been deemed important for sheriffs to be seen to be free of conflicts of interest and of obligation.

Such considerations applied to undersheriffs, too, until relatively recently. In the Westcott v. Briant decision almost a century ago, the New Jersey Supreme Court held that an undersheriff was barred from serving as a freeholder or in other civil office, because an undersheriff "holds and exercises the office of a sheriff."¹⁵ The court reasoned that since the Legislature specifically said the office of sheriff was incompatible with any other civil office, a sheriff could not remove the inconsistency by appointing a person--the undersheriff--to do the very thing which the law prohibits him from doing.

But in 1980, the Appellate Division broke with this precedent.¹⁶ It reversed a trial court's decision that had barred Peter Curcio, an undersheriff in Bergen County, from holding a gubernatorial appointment as an unsalaried member of the Hackensack Meadowlands Development Commission. The trial court, following the 1909 precedent, had ordered Curcio to "choose which civil office he elects to retain." In reviewing the trial court decision, the majority of the appellate court found that the State Supreme Court erred in Westcott when it interpreted the statute as defining the holding of the office of sheriff and any other office as incompatible. The appellate court concluded Westcott should have been decided on the narrower ground that "the two offices of undersheriff and freeholder were incompatible as a matter of common law."¹⁷ The appellate court could not "detect the slightest incompatibility" between the two offices of undersheriff and HMDC Commissioner. It saw no "valid reason to extend the statutory prohibition to undersheriffs."¹⁸

Today, then, the statutory prohibition of a sheriff holding another civil office is not being interpreted as barring an undersheriff from holding all other civil offices, only those found to be incompatible with the office of undersheriff. That was the finding in Westcott: the office of freeholder is incompatible with the office of undersheriff because freeholders can determine the salary of an undersheriff.¹⁹

The appellate decision in the Curcio case requires careful discrimination among public offices depending on the degree of actual conflict among their duties. Almost everyone will agree that little danger of conflict of interests or obligations, or even the appearance of such, arises if an undersheriff serves as one of seven unsalaried members of the HMDC. But the duties of the offices of legislator and undersheriff involve a broader range and wider discretion that can, and arguably do, come into conflict with one another. A fair-minded application of the tests of incompatibility established in New Jersey suggests that employment as an undersheriff is incompatible with service in the Legislature. Those four elements of incompatibility, outlined in Marini v. Holster,²⁰ are:

1. The two offices cannot be executed by the same person
2. They cannot be executed with care and ability
3. One is subordinate to another
4. One interferes with another

From a legal standpoint, the incompatibilities of the two positions should be evident. The state courts protected by the sheriff's department are funded by and governed by state statutes, adopted, amended or repealed by the Legislature. The civil and criminal law enforcement aspects of the position are defined by state statute, and the separation of powers doctrine divides the responsibility of making and enforcing the law. Finally, the performance of sheriff's departments around the state fall under the oversight of the Legislature. Practically, the duties of an undersheriff are, or should be, demanding and substantial-- a true, full-time job. How can an Assemblyman, who is devoting up to 70% of his time to legislative responsibilities, perform fully and effectively the responsibilities of undersheriff?

The appointment of the undersheriff by the sheriff can bring into question the independence of the undersheriff as a legislator, especially—but not exclusively—on issues relating to the powers, duties and operations of sheriff’s department across the state.

It seems clear that an application of reasonable tests of incompatibility gives a sound basis to believe that the positions of legislator and undersherriff should not be filled by the same person. The grounds would appear to exist for a case to test whether holding the two offices would be found incompatible by the courts today.

Moving from the legal to the practical, an appointment of a legislator as undersheriff leaves room for concern over whether the latter position is little more than a sinecure for legislators who need another income. Taxpayers need to know if the appointment is simply an arrangement through which an elected official can draw a salary and report to a supervisor who will be sympathetic to the pressures of legislative office, including the need to spend two days a week in Trenton, raise funds and campaign for several months every two years and maintain hours at the district office.

TIME FOR A BROAD POLICY

Conducting a detailed analysis in these pages for all the other job titles in public employment would be impractical. Clearly, New Jersey needs some general rules to be used in guiding the way through the wide range of incompatibilities and conflicts created by combining elected and non-elected positions.

Some states have wrestled with these issues more systematically than New Jersey. The Attorney General in Texas, for example, issued a useful guide to help determine when dual office holding might pose incompatibilities or conflicts so severe as to be unlawful. It distinguishes between a "public office" and "public employment." The key factor is whether someone is empowered to exercise a "sovereign" function of government that is largely independent of the control of others.²¹ Such a distinction is useful for drawing the lines. It recognizes the difference between, say, the ability of a police officer and an Emergency Medical Technician to serve without incompatibility on a town council or in the Legislature; it would distinguish between the suitability of a public school teacher and a school superintendent to be a legislator.

Louisiana's categorization of public offices goes further.²² In parsing the distinction between public officials and public employees, Louisiana statutes define boundaries between acceptable and unacceptable combinations of office holding clearly enough to depict on a diagram. As the chart below shows, a state elected official in Louisiana cannot hold another position, even part time, in local government. The only exception is that the state elected official can hold a part-time appointment in the same branch as the elected office or a parttime appointment to a local office, such as, say, a planning board. A local elected official may not hold state elective office or be employed by a state agency. That local elected official could be employed by a local government, but only a local government different from the one where he or she holds the elective office.

LOUISIANA – Dual Office Holding and Dual Employment: Prohibited and Regulated Relationships (LSA R.S. 42:61-66)

Courts in New Jersey have, from time to time, enunciated clear standards that recognize how combining elected and non-elected positions disrupts the checks and balances that should exist among levels of government. For example, courts here have ruled that freeholders cannot serve on the boards of county colleges because of the obvious incompatibility between the role of trustee in advocating for greater funding and that of freeholder to serve as a fiduciary for the public treasury. As this shows, positions are incompatible when someone cannot fairly and transparently reconcile the demands of the different responsibilities, such as seeking funding and granting it, or performing functions and evaluating the performance of those functions.

The time has come for New Jersey to define comprehensively and systematically where the obligations of office clash and where conflicts of obligation or interest become inescapable. It should then ban by statute the dual holding of such positions. In making those distinctions, New Jersey should aim to reverse the current assumption—among many of the state's officials, if not the public—that combining elected and non-elected positions is permissible except in some special, specifically stated cases (such as sheriffs, judges and employees of the state Department of Law and Public Safety).

New Jersey has chosen for years to deal with this problem by ignoring it. As this report shows, such a policy is no longer tolerable. The first step forward is for the public and political leaders to recognize the threat the current system poses to government accountability, performance and perception. Now is the time to make combined elected and non-elected job holding the exception rather than the rule. The new standard in New Jersey, expressed through law and clearly developed rules, should now be that combining elected and non-elected positions will not be countenanced, except where the opportunities for conflict clearly are minor and the advantages to the public are manifest.

Working out detailed restrictions on combined elected and nonelected office should begin with a commission appointed by the Governor and charged with recommending statutory changes and a regulatory system to restrict the practice according to generally accepted constitutional, legal and ethical principles. Its report should draw on the experience in the other 49 states and define with clarity which combinations should be prohibited and which should be allowed. Inevitably, some gray areas would remain, and the commission should set standards for resolving them, including what body or bodies should be charged with applying those standards. These could involve the courts as questions arise, analysis and advice from the Attorney General or an independent commission appointed for this purpose.

These guidelines should apply:

1. What is the scope of the public job's discretion? In general, if the duties of a position are not defined by law and can be changed at the will of the superior, that position is not a "public office" but "public employment". Recommendations to restrict the ability of public employees to serve in elective office, or in appointive offices, should, for example, distinguish between a public school teacher and a superintendent; or between the manager of a parking lot operated by a public authority and the executive director of the authority.
2. What is the jurisdiction of each office? Municipal employees should not be able to serve on the town council where they work, but if they live in a different community their service on that town's governing body would not be incompatible.
3. What is the order of appointment to a job and election to an office? The tests of incompatibility can determine what elective offices public employees should be allowed to fill. But what about the case of an elected official who is to be appointed to a public job or public office? Experience, such as in the recent case of Sen. Wayne Bryant, shows that the process itself requires scrutiny as well. Some public entities might seek influence in Trenton by offering employment, perhaps undemanding employment that provides income and can boost pensions. Back-scratching of this sort could be reduced if every appointment of a legislator to a paid position in an institution supported by state taxes required public notice and prior approval by an independent ethics board.

Changing this feature of New Jersey's political system will not be easy. Elected officials have proven to be zealous in protecting the benefits--political and financial--that can come from combining elected and non-elected positions. Case in point: legislation that would curtail pension payments to public officials convicted of corruption passed the State Senate recently, but only after being amended so that retirement benefits would be forfeited only for the job directly related to the crime. Its sponsor, Sen. John H. Adler (D-Camden), said that compromise was needed to win enough votes to pass the bill. Sen. Nicholas Sacco (D- Hudson), who is simultaneously the longtime mayor of North Bergen and assistant superintendent of the North Bergen schools, was quoted by the Newhouse News Service as saying that the amendment "seemed fairer than stripping a convicted official's entire pension....We do want to be strong against corruption, but we also want to be fair."²³

That's the sort of thinking that got New Jersey where it is today with regard to standards for acceptable public behavior. New Jersey needs higher standards of conduct that would fulfill high public expectations for public officials in both elected and non-elected positions.

APPENDIX 1
LEGISLATORS WITH NON-ELECTED PUBLIC SECTOR POSITIONS
By area of public employment

APPENDIX 2
FREEHOLDERS WITH OTHER PUBLIC SECTOR POSITIONS
By area of public employment

APPENDIX 3
ELECTED MUNICIPAL OFFICIALS WITH NON-ELECTED PUBLIC SECTOR POSITIONS
Report of sample survey

SECTOR OF EMPLOYMENT FOR LOCAL OFFICIALS
WITH NON-ELECTED PUBLIC POSITIONS

TAX REFORM

WORK & WAGES

BUDGET & FISCAL POLICY

TRANSIT ISSUES

ECONOMIC DEVELOPMENT

VOTING & GOVT REFORM

© 2008 New Jersey Policy Perspective