Bar Journal - Fall 2007
The New Practitioner’s Guide to Representing Municipal Boards
By: Attorney Richard D. Sager
So, you’re a relatively new attorney, still a bit wet behind the gills. You know the difference between a writ of summons and a bill in equity. You finally understand how to serve process on a defendant, and what orders of notice are. You are pretty good with your clients. They tend to like you, and respect your opinions and guidance. Congratulations. You are achieving competency. Your professional liability carrier will be pleased.
You then get a call from a friend whose spouse sits on the board of selectmen for a nearby town, wanting to ask you a couple questions, and to inquire whether you might want to help the board out with a few issues that have come up. Or you get a call from the senior partner whose picture is in the hallway of your law office building asking you to cover a school board meeting Thursday night because she has “other plans,” and can you meet the client this afternoon?
Municipalities are great clients. They pay their bills, your client doesn’t go to jail, and your client doesn’t lose their kids. But if you are a relatively new attorney, still glistening from the dew of a law school classroom, representing a town or city, or even a board of a municipality, you lack the tools to fully understand what you are in for.
Providing legal representation to a municipality1 presents many circumstances unique to the practice of law. While possessing many attributes enjoyed by private corporations, municipal boards are subject to an ever increasing body of statutory and case law in the realm of public disclosure, records retention, and liability.
Municipal law is one of the few remaining legal frontiers where, at least in the context of civil law, state’s rights butt heads against personal rights.2 Zoning is a prime example, where constitutional issues involving public versus private property rights are always just around the corner. Don’t think of municipal law as boring. It is anything but. Representing a town, for example, can involve prosecuting civil and criminal defendants, preparing contracts, public speaking, trial work, and helping to develop and mold an area of the law that is constantly developing and in a state of flux.
There are no classes in law school to adequately prepare you in matters of public relations. But if you read a newspaper, watch the news, surf the internet, or watch Boston Legal or reruns of Matlock, you must realize that so much of what you need to do as a lawyer is being able to communicate effectively. And it isn’t just to a judge or a jury. It is to your client, and your client’s shareholders: the taxpayers.
A municipality and its various boards offer unique opportunities, as well as unique problems. The client is not a homogenous unit, such as you will encounter with an individual or even a married couple. The members often come from divergent political backgrounds, each with his or her political agenda and bias. So how does one traverse the myriad of conflict inherent in a diverse board, while keeping the municipal client happy? Hopefully, this article will help you navigate that landscape.
So, you’re an attorney. It’s time to perform. It’s time to represent your client, and you have little idea what you are in for. This article is not a treatise of legal trends or an ad nauseum examination of the latest blip on the New Hampshire Supreme Court’s radar. This article is the nuts-and-bolts stuff that will provide you with a road map of how to satisfy your client, but perhaps more importantly, ensure they are well represented, and keep your firm employed.
II. The Basics
A. Know Thyself. If you end up representing a board of selectmen or city council, sooner or later you will be speaking during the annual meeting into the business end of a microphone, facing a packed auditorium (and possibly a local access cable television audience) trying to answer a legal question from an irate resident who questions the legality of the municipality to tax its citizens. If you don’t feel comfortable being on a stage or in the lime light, find another area of the law, such as pensions or real estate.
B. Prepare Your Home Life. If you enjoy watching television, whether it be for sports, news, or one of the plethora of reality shows, the first thing you need to do is to purchase a digital video recorder, such as TiVo. This is because you will very likely be spending a fair number of your evenings at meetings making certain your client correctly navigates through the thicket of the “Right-to-Know Law”3 and other potential pitfalls that render public boards as a new favorite target for the new breed of plaintiff. Nine times out of ten, this new breed of plaintiff is either the well-to-do individual who hails from another state who comes to New Hampshire to take advantage of the favorable real estate prices, the more lenient regulations pertaining to real estate development, and less red tape, or the individual who has recently moved to New Hampshire to enjoy its beauty and way of life, and who wants to shut the door to any further development or influx of population.
If you are in a relationship, prepare your significant other. There will be many, many nights where you will not crawl into bed until well after midnight, simply because the board needed to deliberate endlessly upon whether a certain Jane Doe had a right to speak at the meeting, or ruminate on some other equally innocuous or ridiculous issue. And schedule your meals accordingly. A good rule of thumb: When in doubt, eat before the meeting. Many meetings that I thought would last “at most 45 minutes” had me eating cold chicken and mashed potatoes while watching Jay Leno interview the latest Hollywood Somebody.
C. Dress Appropriately. This may seem like a ridiculous item to include in a legal semi-treatise, but it isn’t. The “sophistication”4 of boards varies from municipality to municipality. In some areas, it is absolutely appropriate, and expected, that you will adorn full lawyer garb each time you appear for a formal or informal meeting. In other areas, wearing the Brooks Brothers suit or the Von Furstenberg dress each time you show up will not earn you extra points, but instead the suspicion and resentment of the boards you are hired to represent.
Many people simply do not feel as comfortable approaching a man or woman with shiny shoes as they would approach one who is more casual in appearance. Although at least one male attorney I know seemingly sleeps in his dark suit and refuses to “dress down” for any land use board meetings5 (even when the temperature threatens to rival that of Chad6 during a warm spell), there is the other side of the coin that suggests you should dress in a manner that makes your client more comfortable. To this end, at some point after having been a board’s attorney for a period of time, inquiry should be made of the preferred dress code for you as attorney. An easy way to broach the subject is to say “Some boards always like me to wear a suit. Other boards prefer I dress more casually. What do you prefer?” The answer may shock and please you, and allow you to show up in shorts for the meetings in the upstairs of the non-air conditioned town halls during those 90-degree dog days of summer.
D. Use Community Resources. Reference to “community” in this heading means two things: the municipality’s community, and the New Hampshire Bar Association community.
There is a great deal of information easily accessible on the Internet which can easily become part of your knowledge of your client. Unlike representing John and Jane Doe, most municipalities have their digital undergarments available to all to see with a click of a button. An attorney wanting to gather background on a new municipal client is well advised to visit the municipality’s website, read some selectmen’s or town council’s minutes, and Google® the municipality to get a flavor of the players and the issues of importance. If the hot-bed issue for a municipality for the last 18 months has been over a sewer bond, and you walk into the initial interview having no idea what a sewer bond is, guess who’s not getting the job?7
There are also various resources available from the New Hampshire Bar Association community that will assist new and seasoned lawyers alike. One such resource is the Municipal Law Section list-serv available through the New Hampshire Bar Association. You can pose questions online, and have the benefit of the collective intelligence and experience of the state’s municipal counsel to assist you in your quest. Of course, the Municipal Law Section also has regular meetings, where you can get to know some of the friendly lawyers who someday you might call for advice.
E. Don’t Lose Your Poise or Sense of Humor. Often municipal attorneys become the lightning rod for citizen complaints aimed at policies or actions implemented by the governing board. When a debate gets heated and the selectmen or city council members are under fire from disgruntled residents and becoming weary, you can expect to hear the phrase “We were just following the advice of our attorney.” It is at this point when you feel the weight of stares from the audience that humor can save the day, and disarm an uncomfortable situation.
Of course, it often happens that the board wasn’t following your advice at all. You can’t say that, obviously, and in fact you are not authorized in this situation to discuss your opinion whatsoever, unless the board has voted to waive the attorney/client privilege. As such, you have no good options, and nowhere to turn. Ten seconds ago you were a lawyer. You are now a politician.
There is no way to be fully prepared for every situation. But you are the authority at that moment, and it is your situation to defuse and refocus. A few simple pointers: (1) Pause – Think before you speak. Introduce yourself. Thank everyone for coming to the meeting, and how important everyone’s opinion is to make democracy function, etc.; (2) Poise – Be in charge. Don’t tolerate being interrupted (“Everyone gave you the courtesy to allow you to speak. I expect the same courtesy”); (3) Patience – Sympathize with someone, whether the selectmen, the audience, or the speaker, without agreeing or disagreeing with them (“It’s tough to pay taxes on top of everything else these days” or “The selectmen have a big responsibility here,” etc.); and (4) Punt – If it’s a mob scene, indicate you need to look into this further and will consult with the selectmen. If it’s an individual, offer to talk to him or her briefly after the meeting so that the remaining meeting business can be addressed. And of course, try to keep it light. Be self-deprecating. Be someone the members of the audience would like to have for their attorney.
When you are able to save the selectmen of city council, and moved off the difficult topic, you have secured your position as municipal counsel, as least until the next election.
III. How to Handle the “Rogue” Board Member
At some point during your representation of a municipal board, a situation will arise where one of the board members will take certain liberties with his or her authority. This behavior can show itself in a plethora of different ways. For example, a board member may offer advice to an applicant or member of the public as to his or her opinion regarding a pending application as to how to proceed, and perhaps offering assistance “behind the scenes” in order to get an approval. The board member’s offer of assistance might be financially motivated when, for example, the applicant needs services to develop a property that, not coincidently, are offered by the board member. Other situations include the failure of a board member to recuse him or herself when a conflict of interest clearly exists. Other situations can take the form of over-zealousness in dealing with town staff, such as seeking Social Security numbers of town employees, placing unreasonable demands on staff to provide information that may or may not be pertinent to pending matters, et cetera.
As legal counsel for the board, you represent the board as an entity, and not any member individually. Although not specifically in legal counsel’s scope of duties, I view one of the legal counsel’s most important roles is to ensure a board functions as a coherent unit. A board that has one or more members that seek to undermine the proper functioning of the board can often undercut the board’s ability to discharge business in an orderly fashion, thus providing fodder for newspaper articles that not only cast the board (and the municipality) in an unflattering light, but also diminish the integrity of the board and the town as a whole in the eyes of the public.
There are a number of ways to deal with these so-called “rogue” board members. Usually, it requires a tactful approach aimed at attempting to bring the rogue member back into the fold. A good first step prior to approaching the rogue member is to speak with other members of the board to get a sense of the rogue member’s personality, and the issues that he or she has. I then like to obtain permission from either the chairperson of the board, or the board as a whole, to speak with the rogue member on a one-on-one basis. A personal meeting is preferred, but often that will not be possible, and a telephone conversation is the next best thing. It is important to keep the conversation cordial, stressing that the actions of the rogue member are damaging the reputation of the board and the town as a whole, and diminishing the effectiveness of each. Take heed of the rogue member’s complaint and issues, and try to set a course with the rogue member that involves the remaining members of the board so that the member can air his or her concerns within the proper functioning of the public body.
If the personal touch does not succeed, a discussion of the rogue member’s actions by the board at a public meeting may be the next best step. This is a two-edged sword. Such a meeting, where board members discuss the rogue member’s action, can act to further alienate the rogue board member from participating in an appropriate manner. However, such a meeting also has the potential to provide the rogue member with public scrutiny, which the rogue member hopefully will not seek to have repeated in the near future. Although the press may generate a headline from the discussion taking place at that meeting, such coverage will hopefully vindicate the board as a whole in the eyes of the public, and spotlight the fact that a particular person is the one causing the problems.
Should the public spotlight on the rogue member fail to achieve desired results, there are essentially two remaining options. The first is to wait until the rogue member’s term is up, and seek to have him or her replaced, either by appointment or through the elective process, as appropriate. Unfortunately, a rogue member’s behavior usually commences the instant he or she takes office, and usually for a three-year term. Thus, depending upon the gravity of the rogue member’s actions, an action filed in Superior Court8 seeking removal of the rogue member for violation of his or her oath of office9 and/or for breach of confidentiality10 may be the only alternative.
IV. Who Does the Municipal Attorney Truly Represent?
This question is the subject of round-table debates. The thrust of the query is whether the attorney (for example, in representing a board of selectmen) represents the board itself, or the municipality as a whole. This question becomes an important one to answer when the inevitable phone call comes from a person claiming to be a taxpayer who pays your bill, and who is entitled to have his or her question answered regarding the “illegal activities” or the “goings-on” at town hall.
The answer is this: You represent the board, whether it is the planning board, board of selectmen, zoning board of adjustment, city council, or other such gathering of individuals recognized by the New Hampshire Revised Statutes as having authority over some aspect of local governmental affairs. Your efforts will be guided by the duly made and adopted motions of the various boards you represent, and not by any individual board member who calls you up and wants you to “look into this situation for me and let me know what you think.”
As a practical matter, you represent all of the board members equally, and no board member individually. They all have an equal vote, and each member presumably has the same right of access to your legal services and expertise. This situation can, and often does, cause problems for you as legal counsel.
For example, Board Member “A” calls you asking if she should step down from voting on a particular issue because she lives on the same street as the applicant. You, of course, ask her if she feels she can be impartial and can otherwise meet the juror standard. She says yes, and you say “good,” because it’s always better to have a full board sit on an issue. A week later you get a call from Board Member “B” who is very upset because you told Board Member “A” that she didn’t have a conflict of interest and therefore she wouldn’t step down, even though the applicant is Board Member “A”’s niece. Board Member “A” remembers discussing the “niece issue” with you, and that you said it was okay. You explain that you never knew the applicant was the niece of Board Member “A”, but if you had known, you would have, at the very least, asked more questions and perhaps provided a different opinion.
At this point neither Board Member “A” nor Board Member “B” have a great deal of confidence in your ability to properly represent and advise the board as a whole, and may begin a campaign to seek alternate legal counsel.
V. Regulate Client Contact
A way to avoid the above scenario is to request – better yet, insist – that all communications between the board members and legal counsel be channeled through the chairperson and, when possible, that all questions to be posed be in writing. The importance of this procedure is obvious: First, it makes the chairperson (who at least presumably is the person on the board who has the best grasp of what is going on) aware of the issue, when otherwise he or she might not have a clue there is a rift occurring between board members and/or a resident. Second, by requiring the question to be reduced to writing, it frames the exact issue for which a response is requested. Moreover, it avoids the situation whereby a board member alleges you were asked to offer an opinion on a different set of facts.
When the situation arises where the chair cannot get you the question in writing, it is imperative that you repeat the question in your answer, so as to remove any doubt of exactly what you were asked.
Always respond to the question in writing, whether it is by formal legal opinion, letter, or e-mail. There is nothing wrong in giving a quick answer over the phone, but then always follow up with a writing. Not every board member is going to be fond of attorneys in general or you in particular. It is always an uncomfortable situation when during a public meeting in front of an audience you are passively accused of rendering an opinion that puts you or the board in an unfavorable light. It’s nice to have at the ready your evidence that no such opinion was given.
VI. Board Meetings with Legal Counsel
It is often imperative that legal counsel meet with boards on a confidential basis. New Hampshire’s so-called “Right to Know Law” provides an exception to the otherwise full disclosure required by it. A thorough discussion of the Right to Know Law is worthy of its own treatise, and this author will not attempt to discuss the Right to Know Law in any great detail.
However, for the practitioner representing municipalities, a few points are critical. First, the practitioner should be aware that a consultation with a board, when meant to be protected by the attorney/client privilege, does not constitute a “meeting” under the Right to Know Law.11 Oftentimes, a board will want to go into a “nonpublic session” 12with its legal counsel pursuant to RSA 91-A:3, but this is generally not the preferred methodology to follow. In the nonpublic session format, a roll call vote is required, and minutes are required to be kept and ultimately disclosed, whether immediately or upon the resolution of the event that was the subject of the discussion, such as pending litigation.13 However, when meeting with legal counsel in a purely attorney/client privilege situation under RSA 91-A:2, I(c), no minutes need to be kept, nor should they be kept. Indeed, I often shudder when I witness a board member taking copious notes during an RSA 91-A:2, I(c) consultation for fear that the notes will end up in the public domain, thereby potentially and severely compromising litigation strategies or other issues that require the attorney/client protection.14
When meeting with a board that ultimately chooses to have privileged communication with their legal counsel, these steps should be followed:
1. Advise the board to resist the temptation to go into nonpublic session under RSA 91-A:3, and rather direct the board to recess the meeting for purposes of meeting with legal counsel pursuant to RSA 91-A:2, I(c).
2. Discourage note taking by board members, but if certain board members insist on taking notes, please request they be nominal.
3. Avoid discussing matters that should be discussed in public, such as the merits of a planning board application.
4. When concluding the consultation with legal counsel, direct the board to announce that the board is coming out of recess, and that it is reconvening the meeting.
5. Ensure superfluous personnel are not participating in the client consultation. Otherwise, the attorney/client privilege may be unwittingly waived, and a host of Right to Know Law violations may occur.
VII. Identifying Conflicts of Interest
The line that steers attorneys away from engaging in representation that would constitute a conflict of interest is often blurred when the attorney is representing a municipality. For example, is an attorney who represents a town solely for purposes of collective bargaining precluded from representing an individual in a suit against the town in a wholly unrelated matter? Is a member of the municipal attorney’s firm precluded from representing a criminal defendant who was arrested by a town police officer? And will the municipal attorney, or members of the municipal attorney’s firm, be precluded from representing clients in front of the town’s planning board? Although each situation may have its own nuances that may tilt the scales slightly one way or the other, the general answer to these questions is in the affirmative.15
A. Be Practical. Before taking on a municipal client, the practitioner should take inventory of what the representation will mean to the firm’s gross revenues. Thus, if the attorney is a sole practitioner or a member of a small firm, and generates a significant amount of fees representing clients before the town’s land use boards, or represents criminal defendants opposite the town’s police department’s prosecutor, an analysis should be undertaken as to whether representing the town will help or hurt the proverbial bottom line. Yes, municipalities can be great clients, but if the revenue stream from the municipality is meager due to the restraints it imposes on taking other cases that would naturally come your way, you may find yourself and your firm regretting that you decided to represent the town and struggling to make up the difference.
B. Representing Multiple Boards. As town counsel, you will generally have the responsibility of representing not only the governing body, such as the board of selectmen or city council, but also providing representation to the planning board, zoning board of adjustment, code office, conservation commission, and other municipal boards and committees. Eventually, a situation will arise where one board’s interest may diverge from another board’s interest.
For example, it is not an uncommon situation whereby an applicant before a planning board seeks to appeal an interpretation of the zoning ordinance rendered by the planning board, or perhaps the code officer during a planning board meeting. As the legal representative of the planning board, you may find yourself representing the planning board in front of the zoning board of adjustment, which happens also, on a normal day, to be your client. What do you do?
There are a few answers to this question, but the one I prefer in this situation is to require the zoning board of adjustment to obtain its own legal counsel, and you continue to represent the planning board. As a sole practitioner, I often will request my municipal clients establish a relationship with alternate counsel who can step in quickly in such situations, and who can also render services when I am conflicted out or, on occasion, on vacation.16
A little common sense will help the municipal practitioner avoid an unwelcome visit to the Professional Conduct Committee. Regardless of what the Rules of Professional Conduct indicate17, a good rule of thumb is “When in Doubt, Get Out.”18
Navigating the landscape of municipal representation is indeed a challenging task. Not only does the practitioner have a client with multiple personalities, but the composition of that client tends to change significantly with every election cycle.
Being an effective municipal counsel involves many aspects of you not only as an attorney, but as a communicator and, at times, a politician. It is not an area of law that is suited for every practitioner, but for the ones that do it and enjoy it, it is an integral part of an exciting and rewarding career.
1. Although the focus of this article is geared toward the representation of municipalities, the pointers are equally valid for boards of school districts, and even private corporate boards.
2. The author of this article is not so bold as to suggest that criminal law isn’t the true frontier of State v. Personal rights, but asserts that aside from legal issues within the criminal context, municipal practice is at the threshold of public versus private property constitutional issues.
3. More boringly, yet correctly, known as the RSA Chapter 91-A “Access to Public Records and Meetings.”
4. Certain individuals may believe that boards located in the more urban or more affluent portions of New Hampshire are more sophisticated than those located in predominantly rural or less affluent areas. I do not subscribe to this presumption, and I have found on occasion the common sense approach to issues in the latter areas to be not only refreshing, but intelligent and for me, a valuable learning experience.
5. I think you know who you are.
6. The country in central Africa, not the injury-prone New York Jets quarterback Pennington.
7. Answer: You.
8. RSA 42:1-a, I. “The manner of dismissing a town officer who violates the oath as set forth in RSA 42:1 shall be by petition to the superior court for the county in which the town is located.”
9. RSA 42:1 Oath Required.
“Every town officer shall make and subscribe the oath or declaration as prescribed by part 2, article 84 of the constitution of New Hampshire and any such person who violates said oath after taking the same shall be forthwith dismissed from the office involved.”
10. RSA 42:1-a, II. “Without limiting other causes for such a dismissal, it shall be considered a violation of a town officer’s oath for the officer to divulge to the public any information which that officer learned by virtue of his official position, or in the course of his official duties, if: (a) A public body properly voted to withhold that information from the public by a vote of 2/3, as required by RSA 91-A:3, III, and if divulgence of such information would constitute an invasion of privacy, or would adversely affect the reputation of some person other than a member of the public body or agency, or would render proposed municipal action ineffective; or (b) The officer knew or reasonably should have known that the information was exempt from disclosure pursuant to RSA 91-A:5, and that its divulgence would constitute an invasion of privacy, or would adversely affect the reputation of some person other than a member of the public body or agency, or would render proposed municipal action ineffective.
11. RSA 91-A:2, I(c).
12. Often referred to as an “executive session.”
13. Of course, there are certain personnel issues that will never be disclosed under current law. See RSA 91-A:5, IV.
14. In a situation where a board member discloses litigation strategy or other information protected by the attorney/client privilege, consideration should be given to whether the board member should be removed from office for violating the oath of office. RSA 42:1, 42:1-a
15. Ethics Committee Formal Opinion #1988-89/24
16. Don’t even think of taking a long vacation between Thanksgiving and the Superbowl (early February for you who don’t follow the New England Patriots football team), as you will quickly learn your services are required for budget meetings, warrant article composition, and the like.
17. When taking on a municipal client, the new practitioner should pay close attention to N.H. R. PROF. CONDUCT 1.7, “Conflict of Interest: General Rule,” N.H. R. PROF. CONDUCT 1.11, “Successive Government and Private Employment,” N.H. R. Prof. Conduct 1.9, “Conflict of Interest: Former Client” and review Sullivan County Regional Refuse Disposal District v. Acworth, 141 N.H. 479 (1996). The new practitioner is also well-advised to review the numerous New Hampshire Bar Association Ethics Committee opinions that pertain to representation of municipal clients. For example, the Committee in Formal Opinion #1988-89/24 states “Clearly, a town must be considered a client of a lawyer even if the lawyer represents the town in only the limited matter of collective bargaining negotiations. Representation of a different client in a civil action against that town presents the direct adversity generally proscribed by Rule 1.7.”
18. The actual quote, handed down to me from Attorney William P. Shea, since deceased, is “When in doubt, get the ‘____’ out.” This quote more accurately represents the speed with which one could consider actually exiting the potential conflict of interest situation.
Attorney Richard D. Sager practices in Ossipee handling a variety of matters, with a concentration on representing towns and municipal boards. He served on the NHBA Board of Governors, representing Bar members in Carroll County.