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Legal Q & A



Deborah M. Kole, League Staff Attorney
Deborah M. Kole
League Staff Attorney

The Attorney's Advice Defense, OPRA Forms
and Conflicting Positions

Q I am a council member, and I know that if I am not sure if I have a conflict of interest in a matter, I should check with the municipal attorney. However, what happens if a council member takes the advice of the attorney in such a matter, and it turns out the attorney made a mistake? Is the official’s reliance on the attorney’s advice any kind of a defense to a violation of the Ethics Law?

A If certain conditions are met, such reliance can be a defense for the official. In a decision handed down on May 1, 2006, the New Jersey Appellate Division upheld a mayor’s right to rely on the advice of his municipal attorney concerning a possible conflict of interest. In the case of In the Matter of John F. Zisa, Mayor, City of Hackensack, 385 N.J. Super. 188 (A.D. 2006), the Court reversed the holding of the Local Finance Board. The Board had ruled that the defendant mayor had violated the Local Government Ethics Law by participating in a vote concerning the paving of a planned municipal parking lot in which the mayor planned to rent spaces for the use of a tenant of a building he owned. In deciding that the mayor’s participation did not constitute a conflict of interest, the Court also reversed the Local Finance Board’s holding that the mayor did not have the right to use the defense that he relied upon the advice of counsel.

The Court stated that while it was in agreement with the Board that the advice of counsel is not an absolute defense to violation of the Local Government Ethics Law, it was reasonable for the mayor to rely on such advice in this case. The Court did not find the basis for the Board’s decision, that there was no written notation or opinion setting forth the attorney’s advice and that the mayor was a long time public official, persuasive.

Instead, the Court looked to the Opinion of the Executive Commission on Ethical Standards, In re Howard , 93 N.J.A.R. 2d (Vol. 5A) 1, aff’d as modified, 94 N.J.A.R. 2d (Vol. 5A) 1 (App. Div. 1994). That Opinion held that there were four requirements for reliance on the opinion of counsel defense. They were: 1) that the advice was received prior to the action taken 2) that the individual who offered the advice possessed authority or responsibility with regard to ethical issues 3) that the individual seeking advice made full disclosure of all pertinent facts and circumstances and 4) that the individual complied with the advice, including all the restrictions contained in it.

The Court found that the advice given to the mayor by the municipal attorney in this case met all of these requirements, and that therefore the mayor had the right to rely on the advice of counsel.
 

Q I am a municipal clerk. It was my understanding that, although we were required to have a form available for Open Public Records Act requests, requesters did not have to use these forms. However, I was recently told that this is not true. What is the current law?

A The Government Records Council issued Advisory Opinion No. 2006-01 entitled “What Constitutes a Valid Open Public Records Request?” This opinion concluded that OPRA “requires all requestors to submit OPRA requests on an agency’s official OPRA records request form.” In this opinion the GRC reversed its previous position on this subject. You can review this Opinion at www.state.nj.us/grc/laws/

Q Our  municipal attorney is running for the school board in our municipality. If he wins, can he serve in both of these positions at the same time?

A The Advisory Committee on Professional Ethics of the Supreme Court of New Jersey has ruled that an individual can hold both positions at the same time, as long as he recuses himself from any matters involving both parties (Opinion 707). The Committee noted that interaction between the board and the municipal government was largely limited to municipal review of a school budget defeated by the voters, a situation that could be dealt with by recusal. In another opinion issued the same day, Opinion 706, the Committee differentiated a situation where an individual sought to serve as assistant county counsel and town councilman in the same county. The opinion noted that, depending on the duties involved in the particular assistant county counsel position, such a situation was likely to give rise to the necessity of multiple recusals annually, and therefore “...would not well serve the public interest.”

 

 

This column is for informational purposes only, and is not intended as legal advice.

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