[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.
[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.
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.
[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.
[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.
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.
[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.