Harris Beach attorney Joseph D. Picciotti presented on “Ethical Rules and Considerations in Zoning and Land Use Practice”. Key topics included: Application of Ethical Rules and Considerations to Zoning and Land Use Practice; Compliance with the Code of Professional Responsibility; Identifying and Avoiding Conflicts of Interest; Special Ethics Issues Faced by the Government Lawyer; and Concerns Regarding Ex Parte Contacts with Municipal Officials. His presentation analyzed the Applicable Ethical Rules in the context of land use matters involving municipal bodies and legislative boards.  The following summarizes several of the topics covered.

Identifying and Avoiding Conflicts of Interest for Municipal Board Members: Members of administrative boards or bodies, including planning boards and zoning boards of appeals, as well as members of municipal bodies, including Village and Town Board members are “municipal officers” under applicable law that proscribes certain conflicts of interest such as having potential personal financial interests in a contract before a government agency, as well as conflicts presented by board members having familial or other relationships with persons appearing before the board or having contracts with the board or municipality at issue. The initial inquiry as to whether a potential conflict is presented includes: Is there is a “recognized contract” with the board at issue? The ramifications for a municipal officer or official participating in a prohibited contract before a municipal board or body can result in the nullification of the contract, invalidation of the decision at issue as well as penalties for the municipal officials. Persons who knowingly and intentionally violate conflict rules can be fined, suspended, or removed from office.

Special Ethics Issues Faced by the Government Lawyer: Rule 1.7 of the Rules of Professional Conduct is implicated in the context of the special counsel whose firm practices before another board in the same municipality. The question is what constitutes an inconsistent or diverse interest that may adversely affect a lawyer’s loyalty or judgement. New York State Bar Association opinions have provided guidance on this topic. The critical issue for the private lawyer acting as special counsel: is he or she willing to zealously represent a private client when it might put him or her in conflict with the municipality for which he or she is acting as special counsel in another matter? Another question is whether the lawyer acting as special counsel, whose firm will also represent another applicant before a board in the same municipality, has unfair access to municipal officials thereby potentially compromising the public perception of the municipal approval process.

Concerns Regarding Ex Parte Contacts with Municipal Officials: When and under what circumstances may a lawyer contact public officials or even consultants working with a municipality outside of the presence of that municipality? Courts and commentators have recognized that there are circumstances where it is permissible for municipal board members to be contacted by counsel for an applicant seeking approvals, including: an applicant’s in-house attorney may contact an individual planning board member because such contact is “authorized by law”, and particularly is within the protection of the First Amendment (right to petition government); communication with a planning board member is also allowed if the communication covers pending SEQRA (State Environmental Quality Review Act), site plan and subdivision determinations with conditions.

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