2 N.J.L. 535
April 5, 1993
133 N.J.L.J. 1371
April 5, 1993
OPINION 672
Conflict of Interest
Municipal Police Officer
Serving as Municipal Prosecutor
Inquirer is a full-time municipal police officer currently
holding the rank of sergeant and a member of the New Jersey Bar.
She asks whether she may accept an appointment to simultaneously
serve as municipal prosecutor in the same municipality.
Inherent in this situation is the continuing professional
association of the inquirer with fellow police officers, some of
whom may report to and take direction from her. Police officers
bring charges and testify against defendants in the municipal
court. As municipal prosecutor, the inquirer is obligated to
refrain from prosecuting a charge that she knows is not supported
by probable cause. RPC 3.8(a). Therefore, the issue is whether an
appearance of impropriety arises from inquirer's handling of
matters in which her associates, and in some cases subordinates,
are involved. The dispositive test is whether an "informed and
concerned private citizen," In re Opinion 415, 81 N.J. 318, 325
(1979), could reasonably find an appearance of impropriety in this
dual service. Given that inquirer intends to remain as a full-time
police officer during her service as municipal prosecutor, the
question virtually answers itself. Cf. Matter of Inquiry to
Advisory Committee, 130 N.J. 431, 433 (1992).
Under ordinary circumstances, the municipal prosecutor
frequently works with the police officers in the municipality. The
manner in which facts are presented would be the decision of the
prosecutor and frequently the manner of presentation can make a
significant difference in the result. Opinion 410, 102 N.J.L.J. 451
(1978). Moreover, the public believes that the prosecutor and the
police are, as a practical matter, "on the same team" and
inevitably develop a close working relationship with each other.
Opinion 400, 102 N.J.L.J. 73 (1978). See also Matter of Inquiry to
Advisory Committee, supra, 130 N.J. 431, 434. Here, the municipal
prosecutor is literally "on the same team." Therefore, an informed
citizen could reasonably believe that the exercise of discretion in
evaluating and processing charges where colleagues and fellow
officers are the complainants would be seriously inhibited by the
on-going relationship which exists between the municipal prosecutor
and her fellow police officers. While there may be no prima facie
conflict of interest, the specter of an appearance of impropriety
so permeates this situation as to preclude the dual service.