Should The Next Governor Rein In NJ Agencies' Legal Independence?

Now that the gubernatorial nominees have been chosen, we can expect to hear more about their leadership philosophies. One issue that likely will garner little attention but will have far-reaching implications is this: Should the new governor strictly enforce Executive Order No. 6, issued by Gov. Jim Florio in 1990, which requires that all state departments and agencies rely exclusively on the attorney general for legal counsel?

At first glance, this may seem like a bureaucratic detail. In practice, the question of who advises state officials on the law can significantly shape how decisions are made, how policies are implemented, and how much authority the governor actually wields. When that legal counsel is the attorney general — a lawyer nominated by and almost always an ally of the governor — the governor will possess greater power and control over state agencies and departments. On the other hand, when EO 6 is not enforced, legal advice will be dispensed by lawyers within the departments and agencies themselves, affording greater independence.

There are pros and cons to both approaches, and different governors have taken different paths on this infrequently discussed subject. I can tell you from personal experience, as a former director of the division of law (which acts for the attorney general as the "law firm" to the state), former chief counsel to Gov. Chris Christie, and attorney general of New Jersey, very few matters of consequence in state government happen without the involvement of legal counsel. I therefore urge the current candidates to make a purposeful choice on this issue after careful consideration and discussion with prior administrations.

The case for strict enforcement

Enforcement of EO 6 across the board creates a potentially very powerful benefit for the next governor — in a state that already has one of the most powerful governorships in the nation. Requiring that all legal advice be obtained from the Attorney General's Office consolidates legal strategy under one roof, making it far easier to ensure that departments and agencies are carrying out a unified policy agenda. When agency heads rely on "in-house" counsel who report only to them, not to the attorney general, legal advice can easily become siloed or even adversarial to the governor's goals. EO 6, if applied rigorously, reestablishes a more hierarchical chain of command — one that strengthens the governor's ability to lead and better achieve his or her policy objectives.

Of course, this all assumes that the attorney general is aligned with the governor on key policy issues, and that the attorney general's leadership team spends the necessary time to ensure that the legal advice being given to different departments helps advance the administration's agenda. While the attorney general is appointed by the governor and usually has close ties to him or her, New Jersey's unique constitutional structure gives the attorney general considerable independence once confirmed. If the attorney general diverges from the governor's views — or takes a more cautious or differently motivated legal approach — there is little the governor can do to override that legal advice.

The drawbacks

Yet there are significant potential downsides to enforcing the order without flexibility. Most department and agency leaders — whether in human services, environmental protection, corrections, or transportation — prefer having legal advisors embedded within their leadership teams. These internal counsel often possess expertise tailored to the specialized operations and day-to-day legal needs of their departments in ways that an externally assigned deputy attorney general may not.

Moreover, in-house counsel are often seen as trusted strategic partners, helping shape decisions in real time. In many cases, in-house counsel are hand-picked by the relevant commissioner and the Governor's Office, ensuring that they are ideological adherents of the administration's agenda as opposed to career civil servants in the Attorney General's Office. Removing in-house counsel could lead to slower responses, reduced innovation, and a sense of detachment from legal strategy. In a state government as complex as New Jersey's, a one-size-fits-all model may sacrifice practicality for formal control.

Finding the balance

The next governor must weigh these competing considerations carefully.

This is not just a governance issue. It is a question of how power flows, how leadership is exercised, and how effectively New Jersey can respond to the challenges of modern state government and its frequent interaction with the business community and citizen advocates. After prevailing on Election Day, the next governor would be wise to revisit this foundational issue during the transition — not just to reassert control, but to build a more cohesive, responsive, and strategically aligned executive branch. While this decision won't make headlines, it may determine the success of the new administration.

Originally published by New Jersey Monitor

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