Can a New York part-time assistant town attorney whose duties are limited to one town board represent private clients before other town boards?

Plain-English summary

A part-time assistant town attorney in Babylon earned $5,000 a year. His only municipal duties were serving the Town Plumber's Examining Board. The town attorney asked whether he could lawfully represent private clients before other town agencies (the Zoning Board of Appeals, the Planning Board, the Planning Department).

The AG said yes, with strict conditions.

General Municipal Law § 805-a(1)(c) bars a municipal officer or employee from getting compensation for services "in relation to any matter before a municipal agency of which he is an officer, member or employee." So he could not represent paying clients before the Plumbing Board itself, where he functionally served as counsel. The State Comptroller had reached the same conclusion in similar contexts (Op. State Compt. No. 2000-22, 85-60).

But the attorney's town duties were limited. He had no role with the planning or zoning boards. § 805-a(1)(c) didn't reach those agencies. The other restriction, § 805-a(1)(d), bars contingent fees tied to agency action. As long as compensation was based on the reasonable value of services and not contingent on the agency's decision, that statute too was satisfied.

The harder question was common-law conflict. Even where § 805-a does not directly bar representation, the AG has long emphasized that public officials must avoid the appearance of impropriety. Matter of Zagoreos v. Conklin and Matter of Conrad v. Hinman are the case law backdrop. The AG flagged specific scenarios that would create problems:

• Representing a client on a project that might ultimately come before the Plumbing Board for code review.
• Representing a client whose project's planning or zoning approval would depend on the town's plumbing code.
• Representing a private client in a planning or zoning matter where the Town Attorney's Office represents the town (so the Town Attorney would be litigating against her subordinate).

The opinion also flagged Op. Atty. Gen. (Inf.) No. 94-51 (architects on a village zoning board should not represent applicants even before the building department, because matters could end up before the zoning board).

Two additional reminders: the local code of ethics may impose stricter requirements than § 805-a (some prohibit any compensated appearance before any agency of the municipality), and the Code of Professional Responsibility imposes its own constraints. The AG recommended consulting the local ethics code and contacting the State Bar Association's Committee on Professional Ethics for the latter.

Currency note

This opinion was issued in 2003. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: When does § 805-a(1)(c) flatly bar representation?
A: When the municipal officer or employee is taking compensation "in relation to any matter before a municipal agency of which he is an officer, member or employee." The AG read "employee" broadly to include attorneys functionally serving a particular board, even if their formal appointment was by the town attorney.

Q: What about contingent fees?
A: Always prohibited under § 805-a(1)(d), regardless of which agency. A municipal officer or employee cannot represent private clients before any agency of his municipality on a contingency basis. Fees must be based on the reasonable value of services.

Q: How does the case-by-case common-law analysis work?
A: Before taking on each private representation, the attorney has to assess whether the matter could create even the possibility of subsequent conflict with his Plumbing Board duties, or generate appearance issues with the Town Attorney's Office, or involve plumbing code questions. If any of those red flags appear, the representation should not be undertaken.

Q: Could the Town's local code of ethics prohibit this entirely?
A: Yes. Local ethics codes may impose stricter requirements, including a blanket prohibition on compensated appearances before any agency of the municipality. The AG recommended reviewing Babylon's code.

Q: What's the practice implication for the attorney's planning of cases?
A: He should screen new matters carefully. Matters that look like routine planning or zoning issues may turn out to involve plumbing code questions. Matters with the Town Attorney's Office on the other side raise the supervisor-subordinate concern. When in doubt, decline the representation.

Background and statutory framework

General Municipal Law Article 18 (§§ 800-806) governs conflicts of interest for municipal officers and employees. Section 805-a is the operational provision that bars certain compensated appearances and contingent fees. Subdivision (1)(c) catches direct representation before the agency for which the officer or employee works. Subdivision (1)(d) catches contingent fees before any municipal agency.

The AG's reading of § 805-a(1)(c) treats an attorney serving as counsel to a particular board as "functionally employed" by that board, even if the formal appointment was made by the town attorney. Op. State Compt. No. 2000-22 reached the same conclusion for a town attorney's representation of private clients in matters before any town agency for which the attorney served as counsel; Op. State Compt. No. 85-60 was a similar village-attorney opinion.

The common-law analysis comes from a different tradition: the requirement that public officials avoid even the appearance of impropriety. Matter of Zagoreos v. Conklin and Matter of Conrad v. Hinman are the leading judicial decisions, and a substantial line of AG opinions has applied the principle to part-time municipal counsel.

The local code of ethics (under General Municipal Law § 806) and the Code of Professional Responsibility for attorneys add another layer. The AG was careful to flag both.

Citations and references

Statutes:

• General Municipal Law § 805-a(1)(c) (representation before own agency)
• General Municipal Law § 805-a(1)(d) (contingent fees before any agency)
• General Municipal Law § 806 (local codes of ethics)

Cases:

• Matter of Zagoreos v. Conklin, 109 A.D.2d 281 (2d Dep't 1985)
• Matter of Conrad v. Hinman, 122 Misc.2d 531 (Sup. Ct. 1984)

Prior AG and Comptroller opinions:

• Op. Atty. Gen. (Inf.) No. 92-54 (city board of water supply counsel)
• Op. Atty. Gen. (Inf.) No. 93-36 (planning board attorney)
• Op. Atty. Gen. (Inf.) No. 94-51 (architects on zoning board)
• Op. Atty. Gen. (Inf.) No. 97-41 (common law conflict)
• Op. State Compt. No. 85-60 (village attorney)
• Op. State Compt. No. 2000-22 (town attorney representation)

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2003-8_pw.pdf

Original opinion text

GENERAL MUNICIPAL LAW §§ 805-a(1)(c) and (d).

A part-time assistant town attorney whose work is limited to matters relating to the town plumber's examining board may represent private clients before other town agencies so long as compensation is fixed according to the reasonable value of the services rendered, rather than contingent upon any agency action on the matter before it, and so long as the individual facts of any such representation do not create an appearance of impropriety or violate common law conflict of interest standards.

July 21, 2003

Lynne A. Bizzarro, Esq.
Town Attorney
Town of Babylon
200 East Sunrise Highway
Lindenhurst, N.Y. 11757-2597

Informal Opinion
No. 2003-8

Dear Ms. Bizzarro:

You have asked whether a part-time Assistant Town Attorney in your office, earning five thousand dollars ($5,000.00) per year, whose duties to the Town are limited to serving the Town Plumber's Examining Board, has a conflict of interest in representing private clients before the Town Zoning Board of Appeals or Planning Board, or in matters concerning the Town Planning Department.

We conclude that a part-time Assistant Town Attorney, whose work is limited to matters relating to the Town Plumber's Examining Board, may represent private clients before other Town agencies so long as compensation is fixed based upon the reasonable value of services rendered, rather than contingent upon any action by such agency regarding the matter, and so long as the individual facts of any such representation do not create an appearance of impropriety or violate common law conflict of interest standards.

Background

You have specified that the attorney in question was appointed as Assistant Town Attorney to serve the Town Plumber's Examining Board and that he does not have any other responsibilities with your office. You have further specified that the Plumber's Examining Board is responsible for the licensing of plumbers who work within the Town, and that it meets once a month and interviews applicants, tests them through both written and practical tests, and addresses any questions regarding the plumbing code. You have also advised that as part of his duties, the attorney in question recently redrafted the Town's Plumbing Code. The attorney has indicated that he would not represent any private clients in matters that are, or will likely be, before the Plumbing Board.

Analysis

Under section 805-a(1)(c) of the General Municipal Law, no municipal officer or employee may receive or enter into any agreement for compensation for services to be rendered in relation to any matter before a municipal agency of which he is an officer, member or employee. General Municipal Law § 805-a(1)(c). In addition to the prohibition against representing clients before the same board which he serves, section 805-a(1)(d) of the General Municipal Law prohibits a municipal officer or employee from receiving or entering into any agreement for compensation for services to be rendered in relation to any matter before any agency of his municipality, where his compensation is dependent or contingent upon any action by the agency. Id. § 805-a(1)(d). The provision, however, does not prohibit the fixing of fees based upon the reasonable value of the services to be rendered. Id. We have previously opined that these provisions prohibit the attorney for a town board from representing clients for compensation before that same board, and from representing private clients on a contingency basis before other municipal agencies. See Op. Att'y Gen. (Inf.) No. 93-36 (attorney for planning board may not represent clients before that board); Op. Att'y Gen. (Inf.) No. 92-54 (part-time counsel to a city board of water supply may not represent private clients on a contingency basis before the city's planning board and zoning board of appeals).

In this case, the attorney in question was appointed by the Town Attorney and Town Board to serve as an Assistant Town Attorney performing work solely for the Town Plumbing Board. As an assistant town attorney he is clearly an employee of the Town Attorney's Office. Moreover, although the attorney was not appointed by the Plumber's Examining Board, it appears that by virtue of serving as an attorney for this Board, for purposes of section 805-a, he is functionally employed by the Plumber's Examining Board as well. See Op. State Compt. No. 2000-22 (section 805-a prohibits town attorney from performing compensated services for private clients in relation to any matter before any town agency for which he or she serves as attorney); Op. State Compt. No. 85-60 (same; village attorney).

As the attorney's duties to the Town Attorney's Office are limited to serving the Plumber's Examining Board, we conclude that section 805-a does not prohibit him from representing private clients before the planning or zoning boards or planning department. Under section 805-a(1)(d), however, he could not represent private clients before those agencies on a contingency basis. The fixing of a fee based upon the reasonable value of the services rendered would be appropriate.

There are several further restrictions regarding the type of representation you describe. We have opined that even in cases where sections 805-a(1)(c) and (d) do not prohibit representation of private clients before municipal agencies, such representation may violate common law conflict of interest standards. Op. Att'y Gen. (Inf.) No. 97-41; Op. Att'y Gen (Inf.) No. 93-36; see Matter of Zagoreos v. Conklin, 109 A.D.2d 281, 287 (2d Dep't 1985); Matter of Conrad v. Hinman, 122 Misc.2d 531, 534 (Sup. Ct. 1984).

In opinions of the Attorney General, we have emphasized that public officials should avoid circumstances which compromise their ability to make impartial judgments solely in the public interest. Even the appearance of impropriety should be avoided in order to maintain public confidence in government.

Op. Att'y Gen. (Inf.) No. 93-36 (internal citations omitted). Thus, we have concluded that part-time counsel to a city board of water supply should not represent clients before the city's planning board and zoning board of appeals, where city regulations required an applicant granted planning and zoning approvals to enter into an agreement with the board of water supply for required utility easements. We found that such representation would create "at least an appearance of impropriety when the applicant appears before the Board of Water Supply for approval of easements. The Board would be faced with reviewing an applicant who had already been represented by their own counsel in appearances before the planning board and zoning board of appeals." Op. Att'y Gen. (Inf.) No. 92-54. Such conflicts must, of course, be avoided.

Similarly, a public official should not take actions that are likely to create even a possible conflict. For example, we have previously concluded that architects who serve on a village board of zoning appeals should not represent applicants seeking approval to modify buildings or start new construction, even in the initial application process before the building department, because such representation could create the possibility of conflicts of interest if those applications ultimately came before the zoning board on which the architects served. Op. Att'y Gen. (Inf.) No. 94-51. Thus, in this case, where the attorney's representation of a client before the planning or zoning boards or the planning department could cause even the possibility of a subsequent conflict of interest, such representation should not be undertaken.

Ensuring that the attorney will not represent clients in matters before the zoning and planning boards that are, or are likely to be, before the Plumbing Board is an appropriate measure that will avoid certain common law conflicts of interest. However, circumstances that might create other types of conflicts or an appearance of impropriety must also be considered. For example, if the attorney contemplates that planning or zoning approval of his client's project might in any way depend on application of the town's plumbing code, such representation should be avoided. Similarly, an appearance of impropriety could arise if the Plumbing Board attorney represents a private client in a town planning or zoning matter in which the town's interests are represented by the Town Attorney's Office. In such a circumstance, you, as Town Attorney, would be litigating against your subordinate, a situation that could threaten the public trust in the impartiality of government decision making.

Thus, while the attorney is not statutorily prohibited from representing clients in such matters as you have outlined, great sensitivity will be required to assure that a potential conflict of interest or an appearance of impropriety does not arise. Individual representations should therefore be subject to a case-by-case review to assure against any current or possible future appearance of impropriety.

Finally, we note that a municipality, as a part of its code of ethics, may include more stringent requirements. Thus, for example, a code of ethics might prohibit a municipal officer or employee from making a compensated appearance before any agency of the municipality. We suggest that you review your local code of ethics to determine whether any provisions are relevant to the question at hand. We further note that the Code of Professional Responsibility may also prohibit a municipal attorney from representing private clients before town agencies under certain circumstances. For further information in this regard, we suggest contacting the New York State Bar Association Committee on Professional Ethics.

We conclude that a part-time Assistant Town Attorney, whose duties are limited to serving as counsel to the Town Plumber's Examining Board, may represent private clients before other municipal agencies so long as fees are fixed based upon the reasonable value of services rendered, rather than contingent upon any action by such agency, and assuming that the individual facts of any such representation do not create an appearance of impropriety or violate common law conflict of interest standards. The Attorney General renders formal opinions only to officers and departments of State government. This perforce is an informal and unofficial expression of the views of this Office.

Very truly yours,

LAURA ETLINGER
Assistant Solicitor General
In Charge of Opinions

By:
PATRICK J. WALSH
Assistant Solicitor General