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                                         2 N.J.L. 535
                                        April 5, 1993

                                        133 N.J.L.J. 1371
                                         April 5, 1993


Appointed by the Supreme Court of New Jersey


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.

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