Until last year, you were Chairman of the Zoning By-law Study Committee in a town ("Town"). The Committee, which was established by and reports to the Board of Selectmen, is made up of town residents and has been assigned the project of revising and restructuring the Town's zoning bylaws. The Committee intends to completely revise and rewrite the entire zoning bylaws, rather than recommend amending only certain parts.
Although you no longer reside in the Town, the Board of Selectmen would like to retain you as paid counsel to assist the Committee in preparing the revised zoning bylaws, because current Committee members are not familiar with certain legal requirements of zoning.
Your private law practice occasionally requires you to represent clients before the Town's boards and agencies.
1. May you represent property owners before the Zoning Board of Appeals or other authorities in Town?
2. After the new zoning bylaws are enacted, may you represent clients before the Zoning Board of Appeals or other Town authorities?
1. Yes, subject to the limitations set forth below.
2. Yes, subject to the limitations set forth below.
If you were to be retained by the Town as legal consultant to the Committee, you would become a municipal employee. EC-COI-87-8. Sections 17, 18, and 23 of the conflict law apply to your questions.
Restrictions as a Current Municipal Employee
- 17(a) prohibits a municipal employee from receiving compensation from anyone, other than the municipality, in connection with a particular matter in which the municipality is a party or has a direct and substantial interest. In addition, s.17(c) prohibits a municipal employee from acting as an agent or attorney for anyone other than the municipality in any claim against the municipality or in connection with any particular matter in which the municipality has a direct and substantial interest.
The broad sweep of s.17 would preclude you as a current municipal employee from representing private parties in any matter in which the Town had a direct and substantial interest, not only matters involving the Zoning Board of Appeals, zoning issues or other permit granting authorities. See, e.g., EC-COI-89-30; 88-21.
Section 17 would apply somewhat less restrictively to you, however, if you were designated a special municipal employee. A special municipal employee is subject to the restrictions of s.17(a) and (c) only in relation to a particular matter (a) in which he has at any time participated as a municipal employee, or (b) which is or within one year has been subject of his official responsibility, or (c) which is pending in the municipal agency in which he is serving. Clause (c) does not apply in the case of a special municipal employee who serves on no more than sixty days during any period of three hundred and sixty-five consecutive days.
For example, if you were a special municipal employee as a consultant to the Committee, you would be prohibited from also representing a client seeking
to amend the zoning bylaws, because amending the bylaws would constitute a particular matter in which you participated or which was within your official responsibility. Section 17 would not, however, preclude you from representing private clients in zoning and permitting issues where you were retained only to interpret and apply the current bylaws or in matters involving other municipal agencies or boards.
If you were to serve for more than 60 days during a 365-day period, however, the s.17 prohibition would apply to any particular matter pending before the agency in which you serve. In your case, the consultant position was established by and reports to the Board of Selectmen. Therefore, you could not represent private clients or be compensated by anyone other than the Town in connection with a particular matter before the Board of Selectmen.
Section 23 describes standards of conduct that apply to all public employees. Section 23(b)(2) provides that no municipal employee may use his official position to secure unwarranted privileges or exemptions for himself or others. Section 23(b)(3) prohibits a municipal employee from engaging in any conduct which gives a reasonable basis for the impression that any person or entity can improperly influence or unduly enjoy his favor in the performance of his duties, or that he is likely to act or fail to act as a result of kinship, rank, or position of any person. If there is an appearance of a conflict under s.23(b)(3), you must file a written disclosure in advance to your appointing authority of all the facts and circumstances about the matter and continue to perform your Committee work using objective criteria. EC-COI-89-19. For example, a challenge to the validity of a current zoning bylaw could raise concerns under s.23 if the issue were peculiar to your client and the same issue were being contemplated by the Committee.
Finally, s.23(c) prohibits a municipal employee from engaging in any business or professional activity that will require him to disclose confidential information which he has gained by reason of his official position or authority, and from improperly disclosing such confidential materials or using such information to further his private interests.
Restrictions after Municipal Employment
Section 18(a) prohibits a former municipal employee from acting as an agent or attorney for, or receiving compensation from, anyone other than the municipality or a municipal agency in connection with any particular matter in which the municipality or a municipal agency is a party or has a direct and substantial interest and in which he participated as a municipal employee.
Section 18(b) prohibits a former municipal employee, for one year, from appearing personally before any officer or agency of the municipality as an agent or attorney for anyone other than the municipality or a municipal agency in connection with any particular matter in which the municipality is a party or has a direct and substantial interest and which was under official responsibility any time within a period of two years prior to the termination of his municipal employment.
As a former legal consultant to the Committee, you will be barred from working for anyone other than the Town in challenging the validity, or supporting the wisdom, of the Town's revised zoning bylaws because you participated in their revision. The only particular matter that will be under your official responsibility also will be the only matter in which you participate as a municipal employee --- the revision of the zoning bylaws. Therefore, the prohibition under s.18(b) will be subsumed under s.18(a).
The Commission has concluded that regulations, once promulgated, are not "particular matters" as defined in s.1(k), however, "the process by which they are adopted and the determination that was initially made as to their validity will be considered particular matters." EC-COI-81-34. See also, EC-COI-87-34; 85-11. Although we concluded in EC-COI-85-22 that a proposed zoning amendment is a particular matter under s.1(k), we have not heretofore determined whether a comprehensive revision of zoning bylaws should be analyzed, for the purposes of the conflict law, in the same manner as the creation of regulations. Applying our analysis in EC-COI-87-34, we conclude that the revision process should receive the same treatment under the conflict law.
In EC-COI-87-34, a state employee had reviewed a draft of proposed regulations, suggested changes, and met with industry representatives regarding the draft. As a former state employee, he then wished to represent private clients in discussions with state officials in connection with promulgating the draft. We concluded that because the employee had participated personally and substantially in the promulgation process and made decisions about the public policy of some or all of the regulations, he was permanently prohibited from challenging the wisdom or legality of the draft regulation.
The underlying principle in our reasoning was that former public employees should not be able to attack
regulations they helped create. EC-COI-87-34. As in that case, there may be circumstances in which your private clients' challenges to the revised bylaws raise the same issues being addressed in your Committee work. Therefore, your consulting work to rewrite the zoning bylaws and a challenge by your private client to the validity of those bylaws would involve the same determination or particular matter.
Once the revised bylaws have become effective, you may represent private parties in cases related to the interpretation or application of the new bylaws. EC-COI-87-34. The goal of s.18 is not to bar former public employees from benefiting from the general subject-matter expertise they acquired in government service, but rather from selling to private interests their familiarity with the facts of particular matters that are of continuing concern to their former government employer. EC-COI-92-17. Lawyers who develop an area of expertise should not be prohibited from representing clients in that area, because such a prohibition would unduly restrict their practice and deprive their clients of needed expertise. EC-COI-87-34.