INTERNATIONAL MUNICIPAL LAWYERS ASSOCIATION

MUNICIPAL ETHICS: WHO IS THE CLIENT AND TO WHOM DO I OWE A DUTY?

June 22, 2012

Portsmouth, New Hampshire

MUNICIPAL ETHICS

You are the new City Attorney, and Madame Mayor says:

“I need to know how to steer construction projects to a particular contractor. Don’t tell the City Council I asked you and don’t worry, I don’t want to do anything illegal. I just want to know how far I can push it.”

What do you tell her?

MUNICIPAL ETHICS

After you protest, she says:

“Okay, forget I ever asked you. But I want your personal advice – confidential, you understand – as to whether I did the right thing yesterday by awarding a parks maintenance contract to my daughter’s boyfriend.”

What do you say?

MUNICIPAL ETHICS

When you explain your position, she says:

“You look unhappy. You know what, forget I asked you any of these silly questions. Relax a little. Take a few days off and go to the beach.”

Do you go to the beach?

MUNICIPAL ETHICS

So you go to the beach, the contract becomes public, the Mayor is indicted, and she says she told you all about it, and you just went to the beach.

MUNICIPAL ETHICS

Alternatively, you talk to the City Council Chairman, tell him your concerns about the Mayor, and he says, “I’ll take care of it.” You’re relieved, and you finally go to the beach. Then you hear nothing from the City Council Chair, and you notice he is driving a new City car, which was granted him by the Mayor.

What do you do now?

MUNICIPAL ETHICSYou spill the beans to the State’s Attorney, ratting on the Mayor, and months go by without any action from his office. Your wife tells you that you should protect yourself, go to the press, say what you know, or else you’re going to take the fall.

Should you go public?

MUNICIPAL ETHICS

• And what if your real client were the public interest? Would you take different actions?

MUNICIPAL ETHICS

The Zoning Enforcement Officer and the Zoning Commission have a disagreement. The zoning regulation limits one house to each lot. However, one nonconforming lot has two houses on it, and the owner wants to expand one of them. The ZEO things that’s fine, but the Zoning Commission disagrees.

The ZEO, Zoning Commission, and Zoning Board of Appeals Golden Triangle

MUNICIPAL ETHICS

You end up agreeing with the Zoning Enforcement Officer, who signs the permit. A neighbor appeals to the Zoning Board of Appeals contesting the ZEO’s decision. Normally, you sit with the Zoning Board of Appeals and advise them.

Can you do that now?

MUNICIPAL ETHICS

The ZBA upholds the ZEO’s decision, and the neighbor appeals.

Can you defend the appeal?

MUNICIPAL ETHICS

The Zoning Board of Appeals overturns the ZEO’s decision, and the ZEO wants to appeal.

Can you represent him?

MUNICIPAL ETHICS

And what if all these representation decisions were based on public interest?

Who would you represent?