Township of East Brunswick, NJ Article XI Department of Law

[Amended 4-8-96 by Ord. No. 95-49]

§ 3-75 Department established; appointment and qualifications of the Director; compensation.

[Amended 6-26-72 by Ord. No. 72-1-R; 7-23-73 by Ord. No. 73-1-W]

There shall be a Department of Law, the Director of which shall be the Director of Law and Township Attorney. He shall be appointed by the Mayor with the advice and consent of the Council. The Director of Law shall receive a salary, known as a "retainer," as compensation for the performance of those services which are listed as retainer services in § 3-80 hereof. The Director of Law shall be reasonably compensated on a voucher basis for those services which are listed as non-retainer services in § 3-80 and for all out-of-pocket expenses incurred by him in connection with the performance of those services. Prior to his appointment, the Director of Law shall have been duly admitted to the practice of law in the State of New Jersey for at least five years.

§ 3-76 Powers and duties.

[Amended 6-26-72 by Ord. No. 72-1-R; 3-29-94 by Ord. No. 94-19]

Except as may be otherwise provided by the charter or Code, the Department of Law shall:

A. Provide legal advice and assistance to the Mayor and Council and to all departments, boards and bodies, except where prohibited by laws, and prosecute and defend actions and proceedings by and against the municipality. However, his duties shall not include services to the Zoning Board of Adjustment or the Planning Board.

B. Draft ordinances and resolutions and advise as to their form and sufficiency prior to passage.

C. Review and approve all bid specifications, contracts, deeds, documents and instruments prior to passage.

[Amended 3-29-94 by Ord. No. 94-19]

D. Render opinions, in writing, upon any question of law submitted to him by the Mayor, the Council or the Director of the Department of Administration with respect to their official powers and duties.

E. Conduct appeals from orders, decisions or judgments affecting any interest of the municipality as directed by the Mayor or Council.

F. Subject to the approval of the Mayor and/or Council, the Township Attorney shall have the power to enter into any agreement, compromise or settlement of any litigation in which the municipality is involved, provided that this subsection shall not be construed to limit or abridge the discretion of the Township Attorney handling any matter in regard to the proper conduct of any trial, action or proceeding or deprive him of the powers and privileges ordinarily exercised in judicial proceedings by counsel acting for private clients.

G. Maintain a record of all actions, suits, proceedings and matters which relate to the municipality's interest and report thereon from time to time as the Mayor or Council may require. The Mayor or Council may request a monthly report with copies filed with the Township Clerk, and the report shall include all hours spent by attorneys in the conduct of the Township business, with details as to legal services performed. Payment shall be by voucher which shall contain the nature of the case, time spent and legal services rendered or such other information as required by the Mayor or Council.

§ 3-77 Appointment of special counsel.

Whenever he deems the interests of the municipality so require, the Township Attorney, with the approval of the Mayor and within the limits of available appropriations, may appoint special counsel to assist in the preparation, trial and argument of such legal matters or proceedings as he may determine. If the Township Attorney should be disqualified with respect to any matter, the Mayor may appoint special counsel with the approval of the Township Council to represent the municipality for and with respect to such matter.

§ 3-78 Prosecutions.

[Amended 8-24-92 by Ord. No. 92-32]

The Township Attorney shall designate two attorneys to conduct prosecutions for crimes and offenses cognizable by the Municipal court of the Township of East Brunswick, including violations of ordinances of the municipality, complaints of any department under state law and for violations of rules or regulations duly promulgated by any department; provided, however, that the Township Prosecutors shall not be responsible for the prosecution of such crimes and offenses as are required by law to be prosecuted by the County Prosecutor. The Township Prosecutor shall not be required to prosecute complaints filed by private citizens except where directed by the appropriate Municipal Court Judge or whenever the Township Attorney shall determine that the Township has a special interest.

§ 3-78.1 Municipal Public Defenders.

[Added 4-8-96 by Ord. No. 95-49; amended 2-23-98 by Ord. No. 98-6]

The Mayor shall nominate the Municipal Public Defender with advice and consent of the Council. Such Municipal Public Defenders shall provide representation for those indigent defendants charged with one or more offenses described in N.J.S.A. 2B:12-18 which are to be prosecuted in the East Brunswick Municipal Court and who have made proper application for such representation with the East Brunswick Municipal Court. Such Municipal Public Defenders shall not be responsible for representation in any other proceedings or in any appeal of any municipal proceeding.

A. Purpose.

(1) The purpose of this ordinance is to amend the East Brunswick Municipal Code to provide for a Municipal Public Defender Program in the Township of East Brunswick.

(2) Such a program is deemed in the best interests of the Township of East Brunswick for the following reasons:

(a) Many defendants who appear in the East Brunswick Municipal Court are indigent or of such limited means as to be unable to afford to engage counsel;

(b) Both the State and Federal Constitutions guarantee persons accused of serious offenses the right to the assistance of counsel and require the State to provide counsel for such defendants who cannot afford to engage counsel of their own;

(c) One way to assure representation for such persons in the East Brunswick Municipal Court is by use of a Public Defender engaged by the Township of East Brunswick, who can be assigned by the Court to represent such persons;

(d) By providing for a Municipal Public Defender to ensure that indigent persons are provided counsel, the Township of East Brunswick will be promoting the interests of justice, helping to assure expeditious disposition of cases before the East Brunswick Municipal Court;

(e) As a means of defraying the costs for the services of a Municipal Public Defender, N.J.S.A. 2B:24-17 authorizes the collection of a $200 application fee in connection with the appointment of counsel for indigent persons;

(f) By collecting the application fee authorized by N.J.S.A. 2B:24-17, the Township of East Brunswick will be reimbursed for costs of providing the services of a Municipal Public Defender.

B. Definitions relative to municipal public defenders. As used in this Chapter 3-78.1:

(1) "Indigent defendant" means a person who is entitled to be represented by a municipal public defender pursuant to this Chapter 3-78.1, and does not have the present financial ability to secure competent legal representation, as determined by Section 10 of this Chapter 3-78.1.

(2) "Municipal Court" means, unless herein specifically defined otherwise, the East Brunswick Municipal Court.

(3) "Municipal public defender" means a person, as defined in Section 4 of this Chapter 3-78.1, appointed to represent indigent defendants in proceedings over which the municipal court has jurisdiction.

(4) "Municipality" means, unless herein specifically defined otherwise, the Township of East Brunswick.

C. Requirements for municipal public defenders. A municipal public defender shall be an attorney-at-law of this State in good standing, and shall serve for a term of one year from the date of his appointment, and may continue to serve in office pending re-appointment or appointment of a successor. A municipal public defender may be appointed to that position in one or more municipal courts. The provisions of this Chapter 3-78.1 shall apply to each such position held. A municipal public defender need not reside in the municipality where he acts as a municipal public defender.

D. Autonomy of office. With the exception of the review procedure outlined in Section 17, infra., the position of Municipal Public Defender shall be independent from all departments and agencies of the Township government, but, for purposes of budgeting and administration, shall be allocated to the Department of Law.

E. Administration.

(1) Appointment of Municipal Public Defender.

(a) The Mayor shall nominate the Municipal Public Defender with advice and consent of the Council.

(b) The Mayor may nominate additional municipal public defenders with advice and consent of the Council as necessary to administer justice in a timely and effective manner in the municipal court. Additional nominations shall be subject to the provisions of this Chapter 3-78.1.

(c) The Mayor shall nominate a "chief municipal public defender with advice and consent of the Council, if the Municipal Court has two or more municipal public defenders. The chief municipal public defender shall have authority over other municipal public defenders serving that court with respect to the performance of their duties.

(d) Appointments to fill vacancies in the position of municipal public defender shall be made in accordance with the provisions of this Chapter 3-78.1 as soon as practicable.

(e) In addition to any other means provided by law for the removal from office of a public official, a municipal public defender may be removed by the governing body of the municipality for good cause shown and after a public hearing, and upon due notice and an opportunity to be heard. Failure to reappoint a municipal public defender for a second or subsequent term does not constitute a "removal from office" within the meaning of this subsection.

(f) The municipal public defenders may represent private clients in any municipality, including the municipality where they act as a municipal public defender, subject to the Rules of Court Governing the Conduct of Lawyers, Judges and Court Personnel.

(2) Reporting and Payment.

(a) All Municipal Public Defenders shall provide monthly or quarterly reports and vouchers as to services rendered during that month to the Township Council.

(b) A municipal public defender shall receive compensation, either on an hourly, per diem, annual or other basis as the municipality may provide. The compensation of a municipal public defender for services rendered pursuant to the provisions of this act shall be in lieu of any and all other compensation by the municipality. The ordinance, resolution or agreement setting compensation shall set forth any additional compensation to be paid for interlocutory appeals in the Superior Court.

F. Duties of municipal public defender.

(1) It shall be the duty of the municipal public defender to represent, except in the case of temporary unavailability or conflict of interest, any defendant charged with an offense in municipal court who is an indigent municipal defendant entitled to representation pursuant to this act. All necessary services and facilities of representation, including both expert and lay investigation and testimony as well as other preparations, shall be provided in every case. The municipality shall be responsible for payment for services pursuant to this Section 6. The factors of need and real value to a defendant may be weighed against the financial constraints of the municipality in determining the necessary services and facilities of representation. The final determination as to necessity for services required pursuant to this Section 6 shall be made by the court.

(2) A municipal public defender shall be responsible for handling all phases of the defense, including but not limited to discovery, pretrial and post-trial hearings, motions, removals to federal district court and other collateral functions reasonably related to the defense. As used in this Subsection F(2), "post-trial hearing" shall not include de novo appeals in Superior Court.

(3) Nothing in this Section 6 shall be deemed to require the municipality to pay for expert and lay investigation or testimony for a period of one year after the effective date of P.L. 1997, c. 256 (C. 2B:24-1 et seq.)

G. Representation of indigent defendants.

(1) The municipal public defender shall represent an indigent defendant charged in Municipal Court with a crime as specified in N.J.S.A. 2B:12-18 or, if in the opinion of the Municipal Court there is a likelihood that the defendant, if convicted, of any other offense will be subject to imprisonment or other consequence of magnitude, the municipal public defender shall represent an indigent defendant.

(2) If there is a vacancy in the office of municipal public defender, if the municipal public defender is temporarily unavailable or if a finding of conflict of interest precludes the municipal public defender from representing an indigent defendant, the municipal prosecutor may prosecute the offense if the municipal court appoints a qualified attorney to represent the indigent defendant. Unless rates are otherwise established by the municipality, the attorney shall be entitled to compensation at the same rate as attorneys hired by the Office of the Public Defender in conflict cases, with payment to be made within 30 days. Once appointed, the attorney shall carry out all duties of the municipal public defender in connection with the case that is the subject of the appointment.

H. Communications protected under attorney-client privilege.

All communications between the indigent defendant and the municipal public defender or any other attorney appointed to act as a municipal public defender shall be fully protected by the attorney-client privilege to the same extent and degree as though counsel has been privately engaged. This shall not preclude the use by the municipal public defender of privileged material for the preparation and disclosure of statistical, case study and other sociological data, provided that in any such use there shall be no disclosure of the identity of or means for discovery of the identity of particular defendants.

I. Application for municipal public defender services.

(1) Eligibility For Services Of Municipal Public Defender.

(a) Eligibility for services of the municipal public defender shall be determined by the municipal court on the basis of the need of the defendant, except as provided in Section 12 of this Chapter 3-78.1. Need shall be measured according to section 14 of P.L. 1967, c. 43 (C. 2A:158A-14) and guidelines promulgated by the New Jersey Supreme Court.

(b) In the event that a determination of eligibility cannot be made before the time when the first services are to be rendered, or if an initial determination is found to be erroneous, the municipal court shall refer the defendant to the municipal public defender provisionally, and if subsequently it is determined that the defendant is ineligible the Municipal Court shall inform the defendant, and the defendant shall be obliged to engage his own counsel and to reimburse the municipality for the cost of the services rendered to the time.

(2) Application Fee, Waiver; Deposit In Dedicated Fund.

(a) Every person applying for representation by a Municipal Public Defender shall, on approval of his application, pay an application fee of not more than $200 to the Municipal Court Administrator of the East Brunswick Municipal Court. The Municipal Court may permit a person to pay the application fee over a specific period of time not to exceed four months. In accordance with guidelines promulgated by the Supreme Court, the Municipal Court may waive any required application fee, in whole or in part, only if the Court determines, in its discretion, upon a clear and convincing showing by the applicant that the application fee represents an unreasonable burden on the person seeking representation.

(b) Funds collected pursuant to Subsection a of this Section 9.2 shall be deposited in a dedicated fund administered by the chief financial officer of the municipality or in the case of a joint municipal court in a manner agreed to by the constituent municipalities. Such funds shall be used exclusively to meet the costs incurred in providing the services of a municipal public defender including, when required, expert and lay investigation and testimony.

(c) Beginning in 1999, if it is determined by the Division of Local Government Services during its annual review of the municipal budget that the amount of money in a dedicated fund established pursuant to this Section 9.2 exceeds by more than 25% the amount which the municipality expended during the prior year providing the services of a municipal public defender, the amount in excess of the amount expended shall be forwarded to the Criminal Disposition and Review Collection Fund administered by Victims of Crime Compensation Board.

J. Investigation of financial status of defendant.

The Municipal Court shall make an investigation of the financial status of each defendant seeking representation pursuant to this act and shall have the authority to require a defendant to execute and deliver written requests or authorizations required under applicable law to provide the court with access to records of public or private sources, otherwise confidential, as may be of aid in evaluating eligibility. The court is authorized to obtain information from any public record office of the State or of any subdivision or agency thereof on request and without payment of the fees ordinarily required by law.

K. Eligibility of defendant under 18 years of age.

Whenever a person entitled to representation by a municipal public defender pursuant to this act, is under the age of 18 years, the eligibility for services shall be determined on the basis of the financial circumstances of the individual and the financial circumstances of the individual's parents or legal guardians. The municipality shall be entitled to recover the cost of legal services from the parents or legal guardians as provided in Section 17 of this Chapter 3-78.1 and the Municipal Court shall have authority to require parents or legal guardians to execute and deliver the written requests or authorization required under applicable law in order to provide the court with access to records of public or private sources, otherwise confidential, as may be of aid to it in evaluating eligibility.

L. Reimbursement to municipality.

If the defendant has or reasonably expects to have means to meet some part, though not all, of the cost of the services rendered, the defendant shall be required to reimburse the municipality, either by a single payment or in installments in such amounts as he can reasonably be expected to pay; but no default or failure in making payment shall affect or reduce the rendering of services.

M. Lien on property of defendant.

(1) The municipality shall have a lien on any property to which the defendant shall have or acquire an interest for an amount equal to the reasonable value of the services rendered to a defendant pursuant to this Chapter 3-78.1 as calculated at the same rate as the Office of the Public Defender bills clients at that time.

(2) To effectuate such a lien for the municipality, the municipal attorney shall file a notice setting forth services rendered to the defendant and the reasonable value thereof with the Clerk of the Superior Court. The filing of the notice with the Clerk of the Superior Court shall constitute a lien on property for a period of 10 years from the date of filing, unless discharged sooner, and, except for such time limitations, shall have the force and effect of a judgment. Within 10 days of the filing of the notice, the municipal attorney shall send by certified mail, or serve personally, a copy of the notice with a statement of the date of the filing to or upon the defendant at the defendant's last known address. If the municipal attorney shall fail to give notice, the lien is void.

N. Compromise, settlement of claims.

The municipal attorney is authorized to compromise and settle any claim for services performed pursuant to this Chapter 3-78.1 whenever the financial circumstances of the person receiving the services are such that, in the judgment of the municipal attorney, the best interest of the State will be served by compromise and settlement.

O. Books for recording liens.

The Clerk of the Superior Court shall provide separate books for the recording of liens established pursuant to Section 13 of this Chapter 3-78.1, which books shall be properly indexed in the name of the judgment debtor. The municipal attorney shall not be required to pay filing or recording fees.

P. Collection of money due municipality.

The municipality attorney in the name of the municipality may do all things necessary to collect any money due to the municipality by way of reimbursement for services rendered by a municipal public defender pursuant to this act. The municipal attorney may enter into arrangements with any State or county agency to handle collections on a cost basis. The municipal attorney shall have all the remedies and proceedings available for collection which are available for or upon the recovery of a judgment in a civil action and shall also be permitted to collect counsel fees and costs from the defendant for such collection action so that the same are not borne by the municipality.

Q. Review of municipal public defender program.

(1) Report. The Township Attorney and the Public Defender for the Township of East Brunswick shall make and submit annually on or before February 15th on the operation of Municipal Public Defender Program for the prior calendar year. The report shall include the following information:

(a) The number of cases in which a Municipal Public Defender is appointed;

(b) The cost to the Township of East Brunswick for the services of Municipal Public Defenders;

(c) The revenues received from fees collected pursuant to Section 5 of this Ordinance; and

(d) Recommendations with regard to the operation of the Municipal Public Defender Program.

§ 3-79 Records and papers to be surrendered to successor.

All papers, documents, memoranda, reports and other materials relating to the administration of the Department of Law shall be and remain the property of the municipality. Upon the termination of his service with the municipality, each legal officer shall forthwith surrender to his successor all such property, together with a written consent to substitution of his successor in all legal actions and proceedings then pending to which the municipality is a party.

§ 3-80 Compensation: retainer services.

[Added 6-26-72 by Ord. No. 72-1-R; amended 7-23-73 by Ord. No. 73-1-W; 3-29-94 by Ord. No. 94-19; 1-21-97 by Ord. No. 97-1; 3-29-94 by Ord. No. 94-19; amended 7-8-2019 by Ord. No. 19-18]

The Director of Law shall receive a fixed annual salary, known as a "retainer," as set forth in the annual municipal budget. The retainer shall cover the following services:

A. Attendance at all regular special and public meetings of the Township Council;

B. The preparation of all ordinances and resolutions and conferences and correspondence related to same;

C. Telephone conferences and general email communications with the Mayor, Council and department and division heads and administrative staff.

D. Administrative functions required of the Director of the Department of Law.