104 N.J.L.J. 25
July 12, 1979
Conflict of Interest
Municipal Attorney's Partner
Serving on Planning Board
We are asked whether a municipal attorney's law partner may
properly accept appointment as a citizen member of the planning
board of the municipality.
This Committee has always recognized the special benefits flowing to a municipality from the service of attorneys on its public bodies. See Opinions 28, 87 N.J.L.J. 106 (1964), 102, 90 N.J.L.J. 1 (1967), and 395, 101 N.J.L.J. 432 (1978). Whenever possible, we have applied the rule of occasional disqualification to permit an attorney to participate in government with the understanding that he must step aside from any matter presenting a real or apparent conflict of interest. Thus in Opinion 315, 98 N.J.L.J. 822 (1975), we held that an associate of a municipal judge could properly serve as a citizen member of the planning board and of the board of health of the same municipality. In Opinion 44, 87 N.J.L.J. 297 (1964), we held that the partner of a municipal councilman could accept appointment as attorney for the board of education of that municipality, and in Opinion 59, 87 N.J.L.J. 741 (1964), that the partner of a municipal attorney could become counsel for the board of education serving the same municipality. See also, with respect to permissible dual public service by the same attorney, Opinions 300, 98 N.J.L.J. 126 (1975), and 39, 87 N.J.L.J. 191 (1964). In each such instance, however, we stressed that the public bodies involved were autonomous and independent of one another, so that a conflict of interest could arise only sporadically if at all. Since the municipal attorney serves as legal advisor to the governing body, it is necessary to examine the relationship between the governing body and the planning board to ascertain the potential for real or apparent conflict when the municipal attorney and a planning board member are partners. Prior to the enactment of the new Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq. (L 1975, c. 291), we held that neither a municipal attorney nor his partner should serve as attorney for the planning board of the same municipality "because the two bodies may entertain conflicting points of view." Opinions 149, 92 N.J.L.J. 185 (1969), and 67, 88 N.J.L.J. 81 (1965). We also held that a municipal attorney should not act as advisor to the borough's planning board in preparation of its master plan, noting that "the prospect of differences of opinion as to policy between the planning board and governing body is not so remote as to be discounted...." Opinion 117, 90 N.J.L.J. 745 (1967). The new law makes significant changes in the role of municipal governing bodies in the land use process. However, the law also preserves the basic framework of review by the governing body of the planning board's recommendations with respect to zoning, subdivision, site plan and official map ordinances, as well as other municipal regulation of the use and development of land and capital improvement programs. N.J.S.A. 40:55D-26, 30 and 32. Thus it remains possible, if not probable, that the statutory relationship between the two bodies may engender conflicting viewpoints on matters of fundamental importance to the residents of the municipality. As we indicated in Opinion 117, supra, such differences of opinion might well raise legal questions to which the answers might vary depending upon the respective policies and approaches of the governing body and the planning board to their distinctive responsibilities. Accordingly, the municipal attorney might find himself in the position of regularly rendering legal advice to the body sitting in judgment on the merits of his law partner's decisions as a member of the planning board. In line with our earlier opinions on this subject, we believe that the interplay between the functions of the governing body and those of the planning board is too active to allow such an arrangement. Even though the inquirer's partner would be acting as a lay member of the planning board rather than as its paid attorney, the appearance of conflict could lie in public expectation that the municipal attorney's advice to the governing body would give greater weight to the views of his partner than to those of a board member with whom he had no private escutcheon.
We should observe that the new Land Use Law also provides that if so permitted by ordinance, any interested party may appeal to the governing body from a final decision of the planning board on an application for development N.J.S.A. 40:55D-17a. We are advised that the municipality involved here has not adopted an ordinance permitting such appeals, and thus we have not considered this provision in reaching our holding of disqualification. We merely note that in an appropriate situation, the appellate function of the governing body could in itself present another area of potential conflict.
Finally, we are referred by the inquirer to Schear v. Elizabeth, 41 N.J. 321 (1964), for the proposition that it is proper for a municipal attorney himself, and a fortiori his partner, to serve as a member of the planning board. But the Schear decision was concerned with the issue of compatibility of offices, i.e, whether there is a conflict of duties as opposed to a conflict of intents. In holding that no conflict of duties exists between the two offices as a matter of legislative intent, the Court went on to address the entirely different question of conflict of interests and expressly warned the bar against the ethical dangers inherent in such dual office holding by an attorney. 41 N.J. at 327-9. It is of course the problem of conflict of interest with which we are concerned, and we hold for the reasons stated above that the partner of a municipal attorney should not serve on the planning board of the same municipality.