105 N.J.L.J. 119
February 7, 1980
ADVISORY COMMITTEE ON PROFESSIONAL ETHICS
Appointed by the New Jersey Supreme Court
Conflict of Interest
County Legal Assistant - Also for
Municipal Planning Board Counsel
Request is made for an opinion as to whether a person
who is a part-time legal assistant in a county law department can also
serve as counsel to a municipal planning board in that same county. He
says that he can conceive of no situation in which there would be a conflict
between the two positions and, therefore, sees no incompatibility.
N.J.S.A. 40:55-D 24 states that the planning board may engage counsel but that such counsel must be "other than the Municipal Attorney." Obviously, it was intended that the attorney for the planning board should be completely disassociated from the legal representative of the municipality. Under the statute, N.J.S.A. 40:27-7, (County Planning Act), it is provided with respect to matters involving the county that "local authorities before approving any plat must submit the same to the County Planning Board for approval" and if the latter does not act within 20 days from the submission, the act of the local authorities shall be deemed approved.
The County Planning Board is appointed by the board of chosen freeholders of the county. One member of the planning board is the director of the board of freeholders, another is the county engineer, and another is a member of the board of freeholders. The other members are citizens at-large. The duties of the planning board are outlined in the statute and the board does have authority to withhold approval of any plat submitted by a municipality unless certain facilities are provided for. N.J.S.A. 40:27-12.
Presumably, although the statute does not so provide, that county planning board, if it needed legal representation, would seek it from the county legal department of which the inquirer is, of course, a member. But, even if the county planning board were to have its own counsel, who would also be a county employee like the inquirer, the result we arrive at would be the same.
In Opinion 262, 96 N.J.L.J. 1150 (1973), relating to attorneys for county school boards, which boards are autonomous, we said that such an attorney was a member of the official family of the county and his actions must be viewed in that contest. Despite the inquirer's statement, there could be a conflict if the county planning board disapproved the action of the municipal planning board as a matter of law. While the probabilities of this may be remote, conflicts between local and county boards have arisen in the past and it cannot be said with any degree of certainty that they will not arise in the future. What we said in Opinion 54, 87 N.J.L.J. 689 (1964), bears repeating here:
This case provides a clear example of what was pointed out in N.J. Advisory Committee on Professional Ethics, Opinion 8, 86 N.J.L.J. 718 (1963), that counsel in matters involving the public business must not only be extremely careful to avoid any situation which actually involves a conflict of interest, but also must avoid any situation which could be construed to be in conflict with his duties and responsibilities to the municipality.
In Opinion 149, 92 N.J.L.J. 185 (1969), we discussed the question of an associate of a municipal attorney being attorney to the planning board and in Opinion 164, 92 N.J.L.J. 831 (1969), we had the question of an attorney representing both the board of adjustment and the planning board in the same municipality. While the factual situation is different here, we think the reasoning of those two opinions is apposite. We believe that the finding herein is consistent with the decision of the Supreme Court in Opinion 415, 103 N.J.L.J. 38 (1979). It is our opinion, therefore, that the inquirer cannot hold both positions.
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