106 N.J.L.J. 93
July 31, 1980
ADVISORY COMMITTEE ON PROFESSIONAL ETHICS
Appointed by the New Jersey Supreme Court
OPINION 449 AS AMENDED
Conflict of Interest - County Legal Assistant Also Counsel for Municipal
Request is made for an opinion as to whether a person
who is a part-time legal assistant in a county law department call also
serve as counsel to a municipal planning board in the 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.
Under the provisions of N.J.S.A. 40:27-6.3, every subdivision application must be submitted to the county planning board for review and, where required, approval prior to approval by the local municipal approving authority. The municipal approving authority must either defer taking final action until it obtains approval from the county planning board or 30 days expire from the date of the receipt of the application without the county planning board in taking any action. N.J.S.A. 40:27-6.4 gives a county planning board the right to withhold approval if proposed subdivisions do not meet standards adopted by the board of chosen freeholders. The statute provides for appeal procedures in the event of disapproval by the county board.
The county planning board is appointed by the board of freeholders. N.J.S.A. 40:27-1. Among its members are the director of the board of freeholders, the county engineer, and citizens who do not hold any other county office and others. N.J.S.A. 40:27-1.1. Presumably, although the statute does not so provide, the county planning board, if it needed legal representation, would seek it from the county legal department of which the inquirer is 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 context. 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. 186 (1969), we discussed the question
of a municipal attorney's associate being attorney to the planning board
and in Opinion 164, 92 N.J.L.J. 831 (1969), we believe 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 re Opinion 415, 81 N.J. 318 (1979), concerning
our Opinion 416, 103 N.J.L.J. 38 (1979).
It is our opinion, therefore, that the inquirer cannot hold both positions.
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