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Providing quality representation for over 10 years. |
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The GALVIN LAW FIRM |
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The Effect of a Conviction of a Crime or Offense Upon the Right to Hold Office |
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Principal Attorney |
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Dennis M. Galvin |
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The citizens of New Jersey have become increasingly concerned about the ethical standards of their politicians. In response, the State Legislature has created the Local Government Ethics Law, which requires the filling of Financial Disclosure Statements. (See N.J.S.A. 40A:9-22.1 et seq.) But long before the enactment of the Local government Ethics Law, there were existing laws to prevent the assumption of office and to cause removal from office for conviction of crimes and offenses. The pertinent section of the Faulkner Act states at N.J.S.A. 40:69a-166: Any person convicted of a crime or offense involving moral turpitude shall be ineligible to assume any municipal office, position or employment in a municipality governed pursuant to this act, and upon conviction thereof while in office shall forfeit his office; provided, however any person convicted of such an offense who has achieved a degree of rehabilitation which in the opinion of the appointing authority and the Civil Service Commission, as to employment subject to the Civil Service law, indicates his employment would not be incompatible with the welfare of society and the aims and objectives of the governmental agency, may be considered eligible to apply for employment or be continued in employment. Any person who shall violate any of the provisions of sections 17-14, 17-15, or 17-16 of this article shall upon conviction thereof in a court of competent jurisdiction forfeit his office. The cornerstone of this law is the concept of "moral turpitude" which has been defined as "an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow men, to society in general, contrary to the accepted and customary rule of right and duty between man and man", Galloway v. Council of Clark Tp., 921 N.J. Super. 409, 420 (Law Div, 1966). In the Appellate Division case of State Board of Medical Examiners v. Weiner, 68 N.J. Super. 468 (App. Div. 1961), which involved the revocation of a doctor’s license for committing a "crime involving moral turpitude", the Appellate Division carefully reviewed the term "Moral Turpitude" and found for the Defendant doctor as he had not yet been convicted. The Court went on to comment as a matter of public policy offering two pages of examples of acts of moral turpitude with relevant citations. Id. At 484 and 485. See also O’Halloran v De Carlo, 156 N.J. Super. 252 (Law Div. 1978). In a recent Law Division case, Judge Lawrence Lerner, J.S.C., ruled that a conviction for the disorderly persons offense of N.J.S.A. 2C:21-5 (Bad Check Law) in the amount of $424.70 was an offense involving moral turpitude. The Judge relied upon the Weiner case and the opinions of the Law Division in O’Halloran case, which states, "It is well settled law that where the intent to defraud is an essential element of a crime, that crime is one of moral turpitude." As a result, Judge Lerner removed the candidate from the ballot. Assuming such a conviction comes to light once a candidate is in office, then that person could be removed either under N.J.S.A. 40:69A-166 or N.J.S.A. 2C:51-2. The letter states in part: a. A person holding any public office, position or employment, elective or appointive, under the government of this State or any agency or political subdivision, thereof, who is convicted of an offense shall forfeit such office or position if: (1) He is convicted under the laws of this State of an offense involving dishonesty or of a crime of third degree or above or under the laws of another state or of the United States of an offense or a crime which, if committed in this State, would such an offense or crime; (2) He is convicted of an offense involving or touching such office, position or employment; or (3) The Constitution or a statue other than the code so provides. b. The forfeiture set forth in subsection a shall take effect; (1) Upon finding of guilty by the trier of fact or a plea of guilty, if the court so orders; or (2) Upon sentencing unless the court for good cause shown, orders a stay of such forfeiture. If the conviction be reversed, he shall be restored, if feasible, to his office, position or employment with all the rights, emoluments and salary thereof from the date of forfeiture. c. In addition to the punishment prescribed for the offense, and the forfeiture set forth in 2C:51–2a, any person convicted of an offense involving or touching on his public office, position of honor, trust or profit under this State or any of its administrative or political subdivisions. d. Any forfeiture or disqualification under subsection a., b., or c. which is based upon a conviction of a disorderly persons or petty disorderly persons offense may be waived by the court upon application of the county prosecutor or the Attorney General and for good cause shown. In The case of State v. Pitman, 201 N.J. Super. 21 25 (App. Div. 1985), the Appellate Division held that "N.J.S.A. 2C:51-2 is constitutional and self-executing.", citing State v. Musto, 187 N.J. Super. 264, 305 (Law Div. 1982), aff’d 188 N.J> Super. 106, 108 (App. Div. 1983) The Appellate Division went on to comment about the harsh consequences of N.J.S.A. 2C:51-2 stating, "Employment, pension and other rights and opportunities are lost forever upon entry of a judgment of conviction of sentencing." State v. Pitman, 201 N.J. Super. 21 27 (App. Div. 1985) When an official is convicted of a crime there is little doubt of the applicability of this statue. But when the conviction is for a disorderly person offense a review of the facts must be made to decide whether or not the action touches and involves the office held. In Moore v Youth Correctional Institute, 119 N.J. 256, 266 (1900), The Supreme Court indicated that "such cases require analysis of the nexus between the crime and the employment to determine if there is a sufficient relationship between the two to warrant the harsh penalty of forfeiture." In order to determine if the offense touches and involves the office the Court fashioned a two prong analysis: "First, there is a need to assess the gravity of the crimes revealed by its nature, its context and the identity of the victim. Second, there is a need to assess the qualification required of the employee’s public employment." Id. at 269. The Supreme Court continued that the time and location of the commission of the crime is not relevant. The Court explained "when the infraction as to a shadow over the employee as to make his or her continued service appear incompatible with the traits of trust-worthiness, honesty and obedience to law and order, then forfeiture is appropriate". The Supreme Court proceeded to uphold the forfeiture of James Moore for having been convicted of harassing his supervisor. (N.J.S.A. 2C:33-2(A) AND (C)). The majority of the Appellate Division was quoted by the Supreme Court as stating, "Mr. Moore’s deliberate and menacing conduct towards his supervisor in retaliation for being disciplined threaten the future work of the department, implicated public safety and ‘involved and touched’ his employment as a senior corrections officer." As can be ascertained from the law provided, local government officials should exercise caution as what may seem a minor municipal court matter, could jeopardize their right to continue in office or to receive of earned benefits. In addition, local political organizations should exercise caution when selecting candidates. It is clear that the standards for disqualification and forfeiture should be made both clear and universal in their application. |
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The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation. |