104 N.J.L.J. 417
November 8, 1979
Conflict of Interest
Municipal Charter Study Commissioner
The inquirer was elected a member of a municipal charter study commission and wants to know if while so acting, can appear for property owners in the same municipality in opposing an application for a variance. We have not previously decided the status of a member of a municipal charter study commission. We see no conflict of interest. The procedure for the election to the charter study commission and the powers and duties of the commission set forth in N.J.S.A. 40:69A-1, et seq. It is clear that the charter study commission is an elected autonomous body and is neither under the control, nor a part, of the municipal "official family." It must prepare a report for the citizens of the municipality, by lodging it with the municipal clerk, and if the commission recommends no change in form of government, it will be discharged; if the commission recommends a change, it will remain in office until an election or the issue is otherwise resolved.
In Opinion 41, 87 N.J.L.J. 286 (1964), the question involved the propriety of an attorney for an elected board of education representing individual clients before the various boards of the municipality in which the school district is located. We decided that under the facts stated there appears to be no conflict:
A board of education elected by the people under
Chapter 7 is clearly autonomous and is not a part of the
municipality in which it is located. It is a separate
body and is a distinct entity from the municipal
government. Neither has any right to interfere with the
other. See Botkin v. Westwood, 62 N.J. Super. 416 (App.
The conflict which is apparent when an attorney represents an agency or board appointed by a municipality and appears before another board or agency of the municipality on behalf of a private client or represents clients against the municipality itself has already been determined.See Canons of Professional Ethics, Canon 6 and this Committee's Opinions 4, 86 N.J.L.J. 367 (1963); 5, 86 N.J.L.J. 361 (1963); 18, 19 and 20, 86 N.J.L.J. 734 (1963); and 24, 87 N.J.L.J. 19 (1964).
This decision is contrasted with our Opinion 52, 87 N.J.L.J. 610 (1964), where we decided that an attorney serving as counsel to a municipal parking authority could not properly represent other clients in the municipal court of the same municipality. There the members of the authority were appointed by the mayor and they, in turn, appointed the attorney as their counsel. We stated that a municipal parking authority is largely autonomous in nature but, nevertheless, by statute it is an agency and instrumentality of the municipality creating it. The statute provides that the authority may call upon the chief law officer of the municipality for legal services or employ its own counsel. We further said that the underlying considerations supporting the governing principle could be found in Opinion 4, 86 N.J.L.J. 357 (1963), and in Opinion 64, 87 N.J.L.J. 801 (1964), where we said that an attorney member of a municipal parking authority could not properly represent private clients before the municipal court or before any other public agency of that municipality.
The same principle is equally applicable to the case of a municipal clerk who is an attorney. As such clerk, he is identified in the public eye with the affairs of the municipality in general. In the same sense, a member of a municipal parking authority is identified in the public eye with the affairs of the municipality in general. He should avoid retainers from others where he is, or may appear to be, opposing action by the municipality on behalf of a private client.
Just as in the case of a municipal attorney representing a private client before a municipal agency, the losing litigant or the public in general will be troubled by the suspicion that his adversary's success in the matter was attributable to his position or influence as a municipal official.
Such considerations do not exist in the present case. In no way is a municipal charter study commission an agency, and under the control of the municipality in which the members were elected to serve. It is completely autonomous. Hence there is no conflict, nor appearance of conflict, in this case.