103 N.J.L.J. 481
May 24, 1979
Conflict of Interest
Municipal Prosecutor Prosecuting Municipal
Employees at Hearings and on Appeals
A first assistant city attorney inquires of the propriety of
the municipal prosecutor or any of the other five members of the
law department prosecuting city employees, including members of the
police department, in departmental hearings at the local level and
on subsequent appeals to administrative agencies (civil service)
and the courts.
This Committee has previously decided, in Opinion 400, 102 N.J.L.J. 73 (1978), that it is unethical to act as prosecutor for the State in a case in the municipal court in which the attorney serves as prosecutor where the defendant is a police officer or other employee of the same municipality. This result was extended in Opinion 410, 102 N.J.L.J. 451 (1978), to bar a municipal prosecutor from prosecuting a member of the police department at a local departmental hearing on charges against the police officer.
Both opinions are bottomed on the appearance of conflict and the view of the public that the municipal prosecutor and the police and, for that matter, all municipal employees, are "on the same team." Having found the initial conflict, that conflict continues through the various appellate levels. The inquirer further requests clarification whether this bar would apply to all members of the municipal law department. To propose the question is to answer it. Given the basis for the opinion, that is, the "appearance of Conflict," any member of the municipal "family" would be barred from acting as prosecutor. The inquirer suggests that The Township of Edison v. Mezzecca, 147 N.J. Super 9 (App. Div. 1977), and our Opinion 400, 102 N.J.L.J. 73 (1978), foresee and permit that the municipal prosecutor will be advising the municipality at the later disciplinary hearings. Both the opinion of the court and Opinion 400, however, presuppose that the municipal attorney's duties would be advisory at the hearing, which would be prosecuted by independent counsel and defended by counsel selected in accordance with the dictates of The Township of Edison v. Mezzecca, supra, and N.J.S. 40A:14-155.