104 N.J.L.J. 401
November 8, 1979
Conflict of Interest
Law Partnership of
Mayor and Borough Attorney
We are asked whether two attorneys can form a law partnership and still retain their offices of mayor and borough attorney in the same municipality. The inquirer acknowledges that if the mayor cannot hold the office of municipal attorney while continuing to serve as mayor, as the mayor's partner he would also be precluded. The inquirer cites several statutes, such as N.J.S. 40A:9-23, which expressly permits a member of the board of chosen freeholders to be appointed to the office of county counsel and he contends that N.J.S. 40A:9-155 is a comparable statute for municipalities and contains no such prohibition. N.J.S. 40A:9-155 provides:
A member of the governing body of a municipality who resigns his office as such may be appointed to an office or position required to be filled by the governing body unless the office or position was created by ordinance adopted during the term of office of the member so resigning. In cases of any such appointment the salary of the holder of said office or position shall not be increased during the term of office of the member so resigning. (Emphasis added.)
Since the inquirer and his partner intend to continue their respective offices, and since his would-be partner, the mayor, has not resigned from his office, it is our opinion that the proposed partnership cannot be formed if the partners intend to continue, one as the mayor and the other as the borough attorney, in view of the language of the statute. The municipal attorney is appointed by the municipal governing body which determines his salary. In Opinion 192, 94 N.J.L.J. 44 (1971), we held that an attorney could not be appointed borough prosecutor while his office associate was a councilman in the same borough. In Opinion 22, 87 N.J.L.J. 13 (1964), we quoted from an opinion of our Supreme Court, which should be the guideline for attorneys who become public officials:
Similarly, our courts have recently stressed that public officials should avoid not only real conflicts of interest but apparent conflicts of interest as well.
In the proposed arrangement, the mayor is involved in the process of appointing the municipal attorney. As a partner he will share in the partnership income which will include the fees paid to the municipal attorney. It is obvious, therefore, that this arrangement creates a conflict of interest and, accordingly, is disapproved.