A Council Member Bidding on a Local Government Attorney Contract

If a council member's law firm wants to bid on being the local government's attorney, a contract that is approved by the council, what is the responsible way to handle the matter?

In the borough of Lincoln City, NJ the council member feels that he merely needs to withdraw from participation in the matter, according to an article on northjersey.com this week. As long as he doesn't get involved, there is no conflict. If the firm gets the contract, he says he will resign from the council.

A staff attorney for the New Jersey League of Municipalities said that the term "conflict of interest" might not be right for this situation. He said that it sounded more like it might fall under an old common law doctrine called an "incompatibility of office."

Yes, it would fall under the incompatibility of office doctrine (which is, in many cases, statutory) if the firm won the bid and if an attorney under contract were considered to hold an "office." But that doctrine provides no guidance before the choice is made whether or not to bid, or after the bid has been made.

The League of Municipalities attorney said that there would be a "direct conflict of interest" only if the council member voted on accepting the mayor's choice for borough attorney. But the question of a direct conflict is only part of the issue. Withdrawal alone is not a responsible way of handling this matter.

Someone raised the issue of a conflict to the council and, according to the article, the council "unanimously agreed that if the RFP were to be entertained, it would get no preferential treatment, and the council member would have to step down from his elected position."

This is not a responsible way to deal with a conflict. First of all, the council will be faced only will approving the mayor's choice, not choosing between competing bids.

Second, of course the council member will be treated differently than, say, a lawyer who lives in another town. Each council member has personal and political feelings about the council member, and no one can suppress these. Whoever they vote for will be their lawyer for at least the next year, possibly for the rest of their time on the council. This isn't a contract for disposing of garbage. This is a professional contract that is based not only on price, but also on a view of the firm's competence and, in this case, the desire of council members to be represented by someone they know well. If they trust and respect him, they will certainly vote for him. If they are a member of his party, that might also cause them to vote for him, so that the council gets the kind of partisan representation they want.

But even this is only part of the issue. If the mayor selects the council member's firm, and the council accepts this selection, the public will think it's an inside deal, an act of cronyism. The deal must be good for the council member to be willing to resign from the council a year before his firm actually began work as borough attorney.

This also says something about the council member's loyalty to his constituents:  he would rather represent the council than represent them.

The best thing, I think, is for the council member's firm to withdraw its bid. If they want the contract that much, the council member should resign, and the firm should wait for a cooling-off period of at least a year before making a bid for the position. It is inappropriate for any board or commission to vote on a contract involving a member or a recent member. This seriously undermines trust in government hiring and the bidding process.

It's also worth noting that discussions of hiring are usually held in executive session. If this matter is discussed by the council, it should be done in a public meeting.

Once again, the attorneys' approach to this matter is simplistic and legalistic and, therefore, inadequate. I can't wait to hear an attorney say, "I am not a government ethics professional, so I really can't provide an adequate answer to this question. I can read the law, but I do not have a background in the responsible handling of conflicts of interest."

Robert Wechsler
Director of Research-Retired, City Ethics

---