IN THE MATTER APPEAL OF FRANCIS X. BURKE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3849-03T13849-03T1

IN THE MATTER OF THE APPEAL

OF FRANCIS X. BURKE FROM THE

FINAL ADMINISTRATIVE AGENCY

DECISION OF THE NEW JERSEY

OFFICE OF THE PUBLIC DEFENDER

 
______________________________

Argued September 20, 2005 - Decided March 3, 2006

Before Judges Coburn, Collester and S.L. Reisner.

On appeal from Final Decision of the Executive

Commission on Ethical Standards, ECES Case

Number 34-03.

Harold N. Springstead argued the cause for

appellant Francis X. Burke.

Michael J. Haas, Assistant Attorney General, argued the cause for respondent Office of the Public

Defender (Peter C. Harvey, Attorney General,

attorney; Patrick DeAlmeida, Assistant Attorney General, of counsel; Mr. Haas, on the brief).

Peter C. Harvey, Attorney General, attorney for

respondent Executive Commission on Ethical

Standards (Alfred E. Ramey, Assistant Attorney

General, filed a statement in lieu of brief).

PER CURIAM

Petitioner Francis X. Burke has worked as an investigator in the Office of the Public Defender (OPD) for approximately twenty years and currently has the title of Assistant Chief Investigator assigned to the Hudson County region. While employed by the OPD, Burke attended the evening program at Seton Hall Law School and graduated in May 2000. He passed both the New Jersey and New York bar examinations in July of that year. Two months later he made an oral inquiry as to whether he could perform any legal work for compensation while employed by the OPD. The record before us does not indicate any response. In February 2001, Burke advised the OPD Central Office that he had passed the New Jersey bar examination and inquired whether he could do "pool work" for the Appellate Section of the OPD. He was told that he could not perform such services because of the provisions of N.J.S.A. 52:13D-19(a), which proscribes a State employee from entering into a contract with a State agency for payment in excess of $25.

Burke's request also generated a memorandum from Diana Johnston, then Assistant Public Defender and Ethics Liaison Officer to the Executive Commission on Ethical Standards (Commission). After consulting with the executive director of the Commission, Ms. Johnston wrote a memorandum to the acting Public Defender as follows:

Our Code of Ethics in Section VI(d)(1)states the following:

An Office of the Public Defender attorney shall devote his/her full time to his/her duties in the Office and shall not engage in the practice of law for compensation or anything of value during the term of employment.

The term "attorney" was intended to refer to OPD staff attorneys and not to other employees who may be attorneys.

The reason I write this memorandum to you now is that I recently had an inquiry from an OPD investigator, who was just admitted to the New Jersey Bar, about what he could or could not do with respect to practicing law. He is not doing any legal work now and would make a formal request to the Ethics Liaison Officer if he planned to do so. That request, or any other from investigators or secretaries who also happen to be attorneys, would be evaluated under the Secondary Employment Guidelines. In my opinion, it would difficult to get approved for a variety of reasons under the Guidelines.

On June 14, 2001, Burke sent a notification of secondary employment to the First Assistant Public Defender stating that he intended to do per diem work for a law firm, which would include evening municipal court appearances. Burke received a response on August 13, 2001, from Assistant Public Defender Regina Laffey Sauter, then the OPD Ethics Liaison Officer, denying his request and stating the private practice of law "in any capacity" while an OPD employee violated the OPD Code of Ethics. She wrote:

Prior approval from the Ethics Liaison Officer and reporting to the Commission is required for any compensated employment, for the holding of any elected or appointed office and the provision of any legal services by attorneys. (Emphasis in original.)

Sauter stated that since Burke was an attorney, he was bound by the same provisions of the Code of Ethics which prohibited other attorneys in the agency even though his employment with the OPD was as an investigator. She added:

To the extent that you may have misinterpreted the agency Code of Ethics to permit your secondary employment, without prior approval by the Ethics Liaison Officer o[f] the Executive Commission on Ethical Standards, either because you are not employed in the capacity of an attorney or for lack of clarity, please be advised that the Code is currently being revised to avoid any potential confusion by others in the future.

The OPD Ethics Code was in fact amended effective September 27, 2001, to state the following:

Practice of Law

(1) Any employee of the Office of the Public Defender who is admitted to the Bar of this State, or any other jurisdiction, shall devote his/her full time to his/her duties in the office and shall not engage in the practice of law, in this or any other jurisdiction, for compensation or anything of value, during the term of employment...

After receiving the August 13, 2001, letter from Ms. Sauter, Burke took no action on the matter until September 16, 2002, when he notified his union attorney that he was challenging the prohibition against his practicing law under OPD secondary employment policy and requesting union support. The record before us does not indicate any response. Over a year later, on November 7, 2002, Burke filed a grievance form with the OPD asserting: "Department is improperly prohibiting me from pursuing my livelihood as an attorney. There is no conflict and no justification for stopping me from practicing law on my own time."

On January 28, 2003, Burke wrote to Yvonne Smith Segars, the newly appointed Public Defender, stating that he had filed a grievance challenging the OPD policy prohibiting him from practicing law on his own time and that there was a meeting on his grievance scheduled for February 19, 2003. Burke's letter reiterated his contention that the "prior administration's policy" was unconstitutional and unfair. He suggested Ms. Segars "get involved in this process in hope that we can reach a fair resolution and avoid prolonged litigation." The appellate record does not contain any response to Burke's letter or any agency action on his grievance.

Five months later on June 25, 2003, Burke completed and submitted an OPD form entitled "Request for Review by Ethics Liaison Officer" seeking approval for secondary employment as a municipal public defender in the Elizabeth municipal court and as an adjunct college instructor in evening criminal justice courses. On July 14, 2003, OPD Ethics Liaison Officer Leah Morris denied Burke's request for secondary employment as a municipal public defender because of a potential conflict of interest. Moreover, in her decision letter Morris stated that the OPD Ethics Code proscribed any remuneration of public or private law practice while employed by the OPD.

I believe that Section V-5-I(1), which prohibits any employee in the Office of Public Defender from engaging in the private practice of law means that no employee can engage in the practice of law for compensation (or any other consideration) except as a public defender within the Office of Public Defender serving the clients of the Office of the Public Defender. This would preclude secondary employment as a practicing lawyer of any kind. I thus read the phrase "private practice of law" in that section to apply as much to work providing municipal public defender services as to work which is deemed more traditional "private practice." I would take the same position if you were requesting authorization to be hired as a solicitor to a borough, a planning or zoning board, and so forth. I would not take such a position if you were seeking authorization to teach about the law or some other subject and were relying upon your background and training to help you for that purpose.

For the above reasons, I believe I must deny your request for authorization to practice law as long as you are an employee of the Office of the Public Defender.

Burke sought appeal of the OPD decision to the Commission and argued that the prohibition against private practice was unconstitutional. After receipt of a response from OPD, the Commission dismissed Burke's appeal, stating:

[T]he appeal was made on various grounds alleging the constitutional infirmity of this administrative ethics regulation and alleging other matters of law. There being no matters of material fact in issue, this appeal is dismissed for lack of jurisdiction.

Plaintiff filed a notice of appeal to this court on March 3, 2004. On June 1, 2004, we directed the Commission to file an amplification of its decision pursuant to R. 2:5-1(b), and the Commission responded by letter brief on July 20, 2004, setting forth the position that it lacked jurisdiction to consider the appeal by Burke from the OPD decision. Since Burke has only appealed from the Commission decision, the narrow issue presented to us relates to the Commission's decision to dismiss Burke's appeal for lack of jurisdiction to hear constitutional issues. While Burke obviously seeks appeal from the provision of the OPD Ethics Code proscribing him from practicing law while an OPD employee, not the jurisdiction of the Commission, the fact remains that his appeal is from the Commission's decision.

The Legislature established the Commission in the Department of Law and Public Safety to initiate, receive, hear and review complaints alleging violations by a State officer or employee of conflict of interest legislation or any approved agency code of ethics as well as to render advisory opinions when requested. N.J.S.A. 52:13D-21(g) and (h). The Commission also has jurisdiction to approve the ethical codes required of each State agency as well as any revisions to the Code. In this case Burke did not appeal the Commission's approval of the OPD Code or the subsequent amendment designed to clarify that no OPD employee was permitted to practice law as secondary employment. We agree that the Commission has no authority to address the constitutional claims by Burke. As a legislative creation, the Commission may act only within the bounds of its delegated authority. In re Closing of Jamesburg High School, 83 N.J. 540, 549 (1980). The Commission was given no authority to review the constitutionality of a provision of an agency's code of ethics. Issues of constitutionality are determined by the judicial branch, not the executive branch of government. Service Armament Co. v. Hyland, 70 N.J. 550, 561 (1976); Stubaus v. Whitman, 339 N.J. Super. 38, 62 (App. Div. 2001), certif. denied, 171 N.J. 442 (2002); Pascucci v. Vagott, 71 N.J. 40, 53 (1976); R. 2:2-3(a)(2).

 
Affirmed.

The Code of Ethics was further amended in 2003 to provide that, "Nothing in this Section shall be deemed, however, to prohibit an attorney, who is also an active member of the military reserves, from providing legal advice to his/her respective service branch."

(continued)

(continued)

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A-3849-03T1

March 3, 2006