 Ineligibility of New Jersey Transit Corporation Board Member
          for Appointment to Amtrak Board of Directors
A p u blic m em b er o f the B oard o f Directors o f the N ew Jersey T ransit C orporation constitutes a rep­
   resen tativ e o f rail m anagem ent under sectio n 411(a) o f the A m trak Reform and A ccountability
   A ct o f 1997 an d is th erefore ineligible f o r appointm ent to the A m trak Board o f Directors.

                                                                                                        July 30, 1998

                 M e m o r a n d u m O p in io n f o r t h e C o u n s e l t o t h e P r e s id e n t


  This responds to your request for our opinion whether a public member of the
Board of Directors of the New Jersey Transit Corporation (“ NJTC” ) is eligible
for appointment to the Amtrak Board of Directors, established pursuant to section
411(a) of the Amtrak Reform and Accountability Act of 1997, Pub. L. No. 105-
134, sec. 411(a), §24302, 111 Stat. 2570, 2588 (“ Amtrak Reform A ct” or
“ Act” ). We conclude that the NJTC Board member would be a “ representative[ ]
of . . . rail management” under that provision and would therefore be ineligible
for appointment to the Amtrak Board unless he or she resigned from the NJTC
Board.

                                                          I.


   Criteria governing eligibility for appointment to the Amtrak Board are set forth
in section 4 1 1(a) of the Amtrak Reform Act, which provides:

         (C) Appointments . . . shall be made from among individuals
         who—

                   (i) have technical qualifications, professional standing, and
                   demonstrated expertise in the fields of transportation or cor­
                   porate or financial management;
                   (ii) are not representatives o f rail labor or rail management;
                   and
                   (iii) in the case of 6 of the 7 individuals selected, are not
                   employees o f Amtrak or of the United States.

49 U.S.C.A. § 24302(a)(2)(C) (West Supp. 1998) (emphasis added).
  The NJTC, on whose board the potential appointee serves, is a corporation
established in the executive branch o f the Government o f New Jersey. See N.J.
Stat. Ann. § 27:25-4.a (W est Supp. 1998). The NJTC is located within the New
Jersey Department of Transportation, although it “ shall be independent of any
supervision or control by the department or by any body or officer thereof.” Id.

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               In e lig ib ility o f N e w J e r s e y T ra n sit C o rp o ra tio n B o a r d M e m b e r f o r
                                A p p o in tm e n t to A m tr a k B o a r d o f D irec to rs

Under N.J. Stat. Ann. § 27:25—4.b, the NJTC is governed by its Board of Directors.
The NJTC Board consists of seven members: the New Jersey Commissioner of
Transportation and the New Jersey State Treasurer, who serve ex officio; another
member of the executive branch of the New Jersey Government appointed by
the Governor; and four “ public members” appointed by the Governor. Id.
   Under the Amtrak Reform Act, the NJTC is both a “ rail carrier” and a “ com­
muter authority.” The Act defines the term “ rail carrier” to mean “ a person,
including a unit o f State or local government, providing rail transportation for
compensation.” 49 U.S.C.A. §24102(7) (West Supp. 1998) (emphasis added).
Congress added the underscored language in 1997 to clarify the scope of the defi­
nition. See Amtrak Reform Act, sec. 407, §24102, 111 Stat. at 2586. The Amtrak
Reform Act also defines “ commuter authority” as “ a State, local, or regional
entity established to provide, or make a contract providing for, commuter rail pas­
senger transportation.” 49 U.S.C.A. §24102(3). The NJTC is a State entity that
provides commuter rail transportation for compensation, see N.J. Stat. Ann.
§ 27:25-5.n (West Supp. 1998), and therefore constitutes a “ rail carrier” and a
“ commuter authority” within the meaning of the Amtrak Reform Act. The ques­
tion is whether members of the board of directors of such an entity are “ represent­
atives of . . . rail management” for purposes of the Act.

                                                             II.

   The term “ representatives of . . . rail management” is not defined or explained
in the text of the Amtrak Reform Act or otherwise in title 49 of the U.S. Code.
The term, however, would certainly include those serving as the management of
“ rail carriers.” Moreover, as discussed below, we conclude that officers and direc­
tors of a rail carrier are part of its management. Because the NJTC is a rail carrier,
a member of its Board of Directors would be a “ representative[ ] of . . . rail
management.”
   We have considered the arguments supporting a contrary view. A memorandum
on this issue, prepared by the law firm of Wilmer, Cutler & Pickering ( “ Wilmer,
Cutler memorandum” ) and submitted to us by the American Public Transit
Association, see Letter for Dawn E. Johnsen, Acting Assistant Attorney General,
Office of Legal Counsel, from Daniel Duff, Chief Counsel and Vice President
for Government Affairs, American Public Transit Association (May 27, 1998),
argues that NJTC board members are not covered by section 41 l(a)(2)(C)(ii)
because it does not explicitly prohibit service by board members of commuter
authorities. The memorandum points out that when Congress amended the defini­
tion of “ rail carrier” to include units of state and local governments, it did not
similarly amend the term “ rail management” to refer expressly to such authorities.
The memorandum therefore concludes that Congress did not intend “ rail manage­
ment’’ to reach the management of state and local commuter authorities.

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                            Opinions o f the Office o f Legal Counsel m Volume 22


   Because the term “ rail management” was undefined both before and after the
1997 amendments, however, we do not believe that any conclusion can be drawn
from Congress’s not adding a reference to state and local governments or “ com­
muter authorities” in the provision concerning “ rail management.” Both before
and after the amendments, the provision on “ rail management” has not expressly
referred to any specific rail entities, and the failure to mention commuter authori­
ties therefore has no particular significance. We find more significant Congress’s
express inclusion in 1997 of state and local commuter authorities, such as the
NJTC, in amending the definition o f “ rail carriers.”
   We further believe that a member of the board of directors of a corporate state
commuter authority such as the NJTC is part of the authority’s “ management.”
Most pertinently, the New Jersey Public Transit Act explicitly provides that the
NJTC is “ governed by [the] board,” N.J. Stat. Ann. §27:25-4.b, and “ [t]he
powers o f the corporation shall be vested in the members of the board thereof,”
id. §27:25—4.e. Thus, even apart from principles of general corporation law (dis­
cussed below), the special statute establishing the NJTC makes it clear that its
board is responsible for its governance and, it necessarily follows, its management.
   It is well settled under the general corporate law of New Jersey, moreover,
that the management of a corporation’s affairs is ultimately vested in its board
of directors. As amended in 1988, the New Jersey corporation statute provides:
 “ The business and affairs of a corporation shall be managed by or under the
direction o f its board, except as in this act or in its certificate of incorporation
otherwise provided.” N.J. Stat. Ann. § 14A:6-1(1) (West Supp. 1998).1 See gen­
erally Francis v. United Jersey Bank, 432 A.2d 814, 822-24 (N.J. 1981) ( “ [A]ll
directors are responsible for managing the business and affairs of the corpora­
tion.” ); Gabriel v. A u f Der Heide-Aragona, Inc., 82 A.2d 644, 649 (N.J. Super.
Ct. App. Div. 1951). Thus, whether viewed from the standpoint of the NJTC’s
particular enabling statute or that of general New Jersey corporation law, members
of the N JTC’s board would constitute part of its “ management.” Moreover,
nothing in the text or legislative history of section 411 of the Amtrak Reform
Act indicates that Congress intended to depart from such generally recognized
understandings of the term “ management” when it decided to exclude representa­
tives o f rail management, as well as representatives of rail labor, from eligibility
for the Amtrak Board. Indeed, the context of the provision and the related defini­
tions in the Act strongly reinforce the view that the term “ rail management”
would include the directors of a commuter authority.

    'T h e C om m issioners’ Comment explaining the 1988 amendments slates “ This section was revised to reflect
the fact that corporations are managed by their officers with the board providing supervision and overall direction.”
N J Stat Ann § 14A .6-1, Com m issioners’ Comment— 1988 Amendments (West 1988) That corporate officers man­
age the business and affairs o f a corporation under the supervision and direction of the board of directors by no
means removes the directors from their ultimate responsibility for corporate management, as made clear in the text
o f the New Jersey statute


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               Ineligibility o f N ew Jersey Transit Corporation B oard M em ber f o r
                            Appointm ent to A m trak B oard o f D irectors

   In this regard, we disagree with the argument in the Wilmer, Cutler memo­
randum that NJTC directors should not be considered representatives of manage­
ment in this context because they may be analogized to so-called “ independent
outside directors” as that concept is used in the corporation law of some states.
See, e.g., Rowert v. Le Mars Mut. Ins. Co., 282 N.W.2d 639 (Iowa 1979). Outside
directors are usually defined as those who are neither officers nor employees of
the corporation (although directors with special knowledge or experience such as
legal counsel, the corporation’s banker, or representatives of major corporate sup­
pliers may be viewed as inside directors notwithstanding their lack of affiliation
with the corporation). Id. at 652. Although the outside director concept is some­
times pertinent for determining the relative responsibilities and liabilities of inside
and outside directors for the day-to-day management of corporate affairs under
state corporate law, id., it does not divorce outside directors from their funda­
mental responsibility as directors for conducting the affairs of the corporation,
see, e.g.. Smith v. Van Gorkom, 488 A.2d 858, 889 (Del. 1985) (where all directors
of corporation, outside as well as inside, took unified position, all would be treated
as one in determination of whether they were entitled to the protection of the
business judgment rule in their approval of cash-out merger of the corporation);
Francis v. United Jersey Bank, 392 A.2d 1233, 1242 (N.J. Super. Ct. Law Div.
1978), a ffd , 407 A.2d 1253 (N.J. Super. Ct. App. Div. 1979), a ffd , 432 A.2d
814 (N.J. 1981) ( “ In legal contemplation there is no such thing as a ‘figurehead’
director.” ). More to the point, the inside/outside director dichotomy has little prac­
tical relevance to the NJTC board, none of whose members would be viewed
as “ inside” directors in the conventional sense but all of whom share collective
responsibility for the governance of the NJTC. See N.J. Stat. Ann. §27:25—4.a.
   We conclude, therefore, that a member of the NJTC Board would be a
“ representative[ ] of . . . rail management” for purposes of the Amtrak Reform
Act and is therefore ineligible for appointment to the Amtrak Board unless he
or she resigns from the NJTC Board.

                                                                 BETH NOLAN
                                                         Deputy Assistant Attorney General
                                                             Office o f Legal Counsel




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