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                                         100 N.J.L.J. 646
                                        July 21, 1977


Appointed by the New Jersey Supreme Court


Conflict of Interest
Environment Commission
Member Before Municipal Agencies

    An attorney serving as a member of a municipal environmental commotion, N.J.S.A. 40:56A-1, et seq., inquires whether he may represent other clients before the planning board, board of adjustment, board of health and municipal court of the same municipality as long as his appearance would not conflict with his
responsibility to the environmental commission.
    The members of the commission are appointed by the municipality, one of whom must be a member of the planning board The mayor appoints the chairman; the commission may appoint employees, but salaries shall be fixed by the council, and total salaries of all such persons shall be within limits of funds appropriated to the commotion, and the commission shall expend no funds and shall incur no expenses except to the extent and for atomic and purposes spoofed in the borough's annual budget. The
powers granted to the commission are subject to the approval of the council.
    We have not previously dealt with environmental commissions which recently came into being by an amendment to the municipalities act, N.J.S.A. 40:56A-l, et seq. We have previously dealt with the same basic question in connection with an attorney for a city housing authority, Opinion 18. 86 N.J.L.J. 734 (1963); an attorney for a local board of health, Opinion 24, 87 N.J.L.J. 19 (l964); attorney as commissioner on board of health, Opinion 37, 87 N.J.L.J. 190 (1964); attorney for municipal parking authority, Opinion 52, 87 N.J.L.J. 610 (1964); attorney member of municipal parking, Opinion 64, 87 N.J.L.J. 80l (1964); attorney member of board of education, appointed, Opinion 77, 88 N.J.L.J. 453 (1965); attorney for municipal housing authority, Opinion 79, 88 N.J.L.J. 460 (1965); attorney asked by mayor to serve as chairman of three- man committee to advise professional assessor on land values, Opinion 96, 89 N.J.L.J. 49, (l966); attorney for intermunicipal sewerage authority, Opinion 98, 89 N.J.L.J. 497 (1966); attorney for redevelopment agency, Opinion 123, 91 N.J.L.J. 97 (1968); and attorney for senior citizen housing association, Opinion 281, 97 N.J.L.J. 362 (1974).
    In the last case, the citizens housing association was a Title 15 nonprofit association created under the statute for the purpose of independently financing, constructing and managing senior citizens housing in the town. The town council determined by resolution to create this independent entity, and the resolution provided in part that it was "a municipally inspired, community oriented, broadly-represented, nonprofit corporation or association.     The original board of trustees of the housing association consisted of seven members, two appointed by the mayor, and one by each member of the five member town council. The trustees were appointed for terms of three years and subsequent appointments were to be on the same basis as the original appointments, i.e., the mayor and town council to make such appointments.
    The town council expended no funds on behalf of the housing association; and the latter was free to act as it chose. Aside from the power of the mayor and council to appoint trustees, there was no relationship between the town and the association. The association chose its own business administrator and counsel. Payment to the latter was made by the association.
    Concerning the inquiry as to whether counsel for the association might appear for private clients before various municipal bodies, such as the planning board, board of adjustment, etc., we said:
    While it is true that the association occupies a position of autonomy in its activities so far as the town is concerned, it is equally true that the members of the board of trustees of the association, to a degree, are controlled by the town, in that they owe their appointments to the governing body. In a situation somewhat analogous, Opinion 123, 91 N.J.L.J. 97 (1968), this committee said that the attorney of a redevelopment agency, which is also autonomous so far as the town is concerned and similar to the agency in question here, could not appear before the town's municipal bodies on behalf of private clients. In that opinion, we cited earlier opinions bearing on the same subject.

    Our views on this have not changed. Counsel in these cases must make a choice as to whether they desire to represent the autonomous agency and thus preclude the practice by themselves and members of their firms before the various town bodies, or whether they believe it to be more to their advantage to decline representation of the agency and represent private clients before the various municipal bodies.

    In the facts of the present case, there is little evidence of autonomy in the operation of the environmental commission, separate and apart from the municipality which created it. Control by the town is evidenced by the appointment and reappointment of the members, the designation of its chairman, the fixing of salaries for its employees, and total salaries of all persons within the limits of the funds supplied by the council, the inability of the commission to expend any funds or incur any expenses except to the extent and for the items and purposes specified in the town's annual budget, and whatever powers may be granted to the commission are subject to the approval of the council. By statute the environmental commission is not autonomous in nature, but is fully dependent upon the municipality which created it.
    In these circumstances, we believe that an attorney-member of an environmental commission cannot properly represent private clients before the municipal court or before any other public agency of that municipality. As such member, he 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. A losing litigant or the public in general will be troubled by the suspicion that his adversary's success in the matter was attributable to the attorney's portion or influence as a municipal
official. See DR 8-10(A)2, relating to attorneys as public officials, DR 9-101, regarding avoiding appearance of impropriety and the opinions supra.
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