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Officials' and Lawyers' Obligations Relating to Citizen Participation
Tuesday, October 8th, 2013
Robert Wechsler
Yesterday evening, I attended a meeting of my town's planning and
zoning commission. The principal agenda item involved a request for
an amendment to the town plan to allow the building of a private
recycling center in the town. The commission's secretary read a letter from the
requesting party's attorney, who is a member of another town board, withdrawing the request. The letter
said that the principal reason for withdrawal of the request was
opposition to the amendment by a small group of citizens who had
"distorted" the facts.
Whether this makes sense or not, it constitutes an attack, without any stated foundation, on citizens who spoke their views at a public meeting and in a flyer delivered to mailboxes asking people to attend last night's meeting. Coming from a public official and respected local attorney, it sent a clear message that citizen participation is damaging, and that those who participate will be publicly criticized. This makes it less likely that, in the future, my town's citizens will come forth and participate in matters such as this.
I would like to raise two related questions. Does a local official have an obligation, in any role he plays, not to do anything that would undermine citizen participation in government? Does an attorney have such an obligation?
It is important to recognize that citizen participation is a central goal of government ethics. Without trust that government officials are acting in the public interest rather than in their personal interest or in the interest of those with whom they have a special relationship, citizens generally do not participate in the governments that manage their communities. Although the attorney's letter did not involve trust, it did involve citizen participation, in a more direct manner. And it did involve the wearing of at least two hats.
The Creation of a Conflict Where One Did Not Exist
There is no reason a member of a board that does not involve land use should not be permitted to represent clients before a land use board. But when an attorney does this, it does not mean that he is not wearing two hats. It just means that there is no conflict between the two hats. However, the official should be careful not to create a conflict. For example, he can be paid for his services, but he cannot be given a gift by his client, especially if this might be seen as affecting his official role. And he cannot use his official position, his official relationships, or confidential information to help his client.
But what is he supposed to do if a client wants to withdraw a request and blame citizens who have opposed it? Yes, board members are known to limit or even prevent public comments, and they sometimes lash out at citizens who say things they don't like. But this doesn't make it right. I believe that other board members have an obligation to oppose their colleagues when they do this. In fact, two of the planning and zoning commission members did just this after the letter of withdrawal was read aloud. They criticized the letter, spoke out in favor of citizen participation, and thanked those who did participate.
When a board member, acting as an attorney, lashes out at citizens who say things his client doesn't like, in a public document that is likely to be read aloud at a public meeting, is it any different from that individual speaking out against citizen participation at the meeting itself? Yes, it is not a meeting of the official's board. But is this fact controlling? Should an official act in one board situation in a way that would be wrong in another board situation? I don't think he should.
When an official who is an attorney represents a client before a town board, he should let the client know that he will do nothing that he would not do before his own board. In other words, he has two roles that he will not allow to come into conflict with one another. If the client does not agree to this, it should seek other counsel. If it does, it must accept the consequences. The alternatives are for the attorney not to serve as an official or not to represent clients before his own town's government.
Meritorious Claims
But these alternatives lead to the second question: Does an attorney who is not an official of the government he is appearing before still have an obligation not to undermine citizen participation?
Attorneys are limited in what they can do by their state's rules of professional conduct. Connecticut (my state) rule 3.1, "Meritorious Claims and Contentions," states in part, "A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous."
The rule's commentary states that an action is frivolous "if the client desires to have the action taken primarily for the purpose of harassing or maliciously injuring a person or if the lawyer is unable either to make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument for an extension, modification or reversal of existing law."
So there is a question of whether an attack on opposing citizens is harassment, whether it will be injurious to citizen participation, and whether the lawyer could make a good faith argument that the citizens' "distortion" of the facts truly led to withdrawal of the client's request. If an attorney has reason to believe that the client was seeking to harass the citizens who opposed its request, that the client's attack might undermine citizen participation, or that the citizens' contentions were not the real reason for withdrawal, he should have said that the rules of professional conduct prevented him from stating this.
Lawyers' Obligations as "Public Citizens"
The preamble of the rules of professional conduct states that a lawyer is "a public citizen having special responsibility for the quality of justice. ... As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession."
This is a narrow definition of "public citizen." A lawyer is a public citizen in the sense that he understands the laws and the processes not only of the justice system, but also of government, if that is where he practices, and of other institutions in which he is active. He is a public citizen because he has more understanding and more power to affect the running of our society's institutions. This is why lawyers play such a dominant role in our governments. But whether they do so as an official or merely as a lawyer, their obligations as lawyers should be the same.
One of those obligations, akin to "a responsibility for the quality of justice" should be a responsibility for the quality and quantity of citizen participation in government. Just as a lawyer should seek access to the legal system, she should also seek access to government, and do nothing to prevent or lessen such access.
And this is what the attorney in my town did. Whether it was at the client's request or was instigated by the attorney himself, it was wrong. It is not something a "public citizen" should do to lesser citizens. "Public citizens" need to acknowledge this responsibility, and it would be valuable if the rules of professional conduct were to acknowledge that the obligations of "public citizens" go beyond the justice system.
Robert Wechsler
Director of Research-Retired, City Ethics
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Whether this makes sense or not, it constitutes an attack, without any stated foundation, on citizens who spoke their views at a public meeting and in a flyer delivered to mailboxes asking people to attend last night's meeting. Coming from a public official and respected local attorney, it sent a clear message that citizen participation is damaging, and that those who participate will be publicly criticized. This makes it less likely that, in the future, my town's citizens will come forth and participate in matters such as this.
I would like to raise two related questions. Does a local official have an obligation, in any role he plays, not to do anything that would undermine citizen participation in government? Does an attorney have such an obligation?
It is important to recognize that citizen participation is a central goal of government ethics. Without trust that government officials are acting in the public interest rather than in their personal interest or in the interest of those with whom they have a special relationship, citizens generally do not participate in the governments that manage their communities. Although the attorney's letter did not involve trust, it did involve citizen participation, in a more direct manner. And it did involve the wearing of at least two hats.
The Creation of a Conflict Where One Did Not Exist
There is no reason a member of a board that does not involve land use should not be permitted to represent clients before a land use board. But when an attorney does this, it does not mean that he is not wearing two hats. It just means that there is no conflict between the two hats. However, the official should be careful not to create a conflict. For example, he can be paid for his services, but he cannot be given a gift by his client, especially if this might be seen as affecting his official role. And he cannot use his official position, his official relationships, or confidential information to help his client.
But what is he supposed to do if a client wants to withdraw a request and blame citizens who have opposed it? Yes, board members are known to limit or even prevent public comments, and they sometimes lash out at citizens who say things they don't like. But this doesn't make it right. I believe that other board members have an obligation to oppose their colleagues when they do this. In fact, two of the planning and zoning commission members did just this after the letter of withdrawal was read aloud. They criticized the letter, spoke out in favor of citizen participation, and thanked those who did participate.
When a board member, acting as an attorney, lashes out at citizens who say things his client doesn't like, in a public document that is likely to be read aloud at a public meeting, is it any different from that individual speaking out against citizen participation at the meeting itself? Yes, it is not a meeting of the official's board. But is this fact controlling? Should an official act in one board situation in a way that would be wrong in another board situation? I don't think he should.
When an official who is an attorney represents a client before a town board, he should let the client know that he will do nothing that he would not do before his own board. In other words, he has two roles that he will not allow to come into conflict with one another. If the client does not agree to this, it should seek other counsel. If it does, it must accept the consequences. The alternatives are for the attorney not to serve as an official or not to represent clients before his own town's government.
Meritorious Claims
But these alternatives lead to the second question: Does an attorney who is not an official of the government he is appearing before still have an obligation not to undermine citizen participation?
Attorneys are limited in what they can do by their state's rules of professional conduct. Connecticut (my state) rule 3.1, "Meritorious Claims and Contentions," states in part, "A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous."
The rule's commentary states that an action is frivolous "if the client desires to have the action taken primarily for the purpose of harassing or maliciously injuring a person or if the lawyer is unable either to make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument for an extension, modification or reversal of existing law."
So there is a question of whether an attack on opposing citizens is harassment, whether it will be injurious to citizen participation, and whether the lawyer could make a good faith argument that the citizens' "distortion" of the facts truly led to withdrawal of the client's request. If an attorney has reason to believe that the client was seeking to harass the citizens who opposed its request, that the client's attack might undermine citizen participation, or that the citizens' contentions were not the real reason for withdrawal, he should have said that the rules of professional conduct prevented him from stating this.
Lawyers' Obligations as "Public Citizens"
The preamble of the rules of professional conduct states that a lawyer is "a public citizen having special responsibility for the quality of justice. ... As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession."
This is a narrow definition of "public citizen." A lawyer is a public citizen in the sense that he understands the laws and the processes not only of the justice system, but also of government, if that is where he practices, and of other institutions in which he is active. He is a public citizen because he has more understanding and more power to affect the running of our society's institutions. This is why lawyers play such a dominant role in our governments. But whether they do so as an official or merely as a lawyer, their obligations as lawyers should be the same.
One of those obligations, akin to "a responsibility for the quality of justice" should be a responsibility for the quality and quantity of citizen participation in government. Just as a lawyer should seek access to the legal system, she should also seek access to government, and do nothing to prevent or lessen such access.
And this is what the attorney in my town did. Whether it was at the client's request or was instigated by the attorney himself, it was wrong. It is not something a "public citizen" should do to lesser citizens. "Public citizens" need to acknowledge this responsibility, and it would be valuable if the rules of professional conduct were to acknowledge that the obligations of "public citizens" go beyond the justice system.
Robert Wechsler
Director of Research-Retired, City Ethics
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Comments
Scott Wolfe (not verified) says:
Wed, 2013-10-09 18:19
Permalink
I've been reading CityEthics.org for several years now, and I enjoy the detailed and often unexpected perspectives on ethical issues. I am frequently given much to think about. So, help me out here, because I may be missing something...
It seems to me that the key phrase in the rationale behind the attorney's withdrawal was "distorted the facts." This is different than attacking the small group of people for simply opposing the project. I obviously don't have all the facts, but I'll assume that you've provided all of the relevant ones here. If that's true, then the facts that have been provided don't seem to indicate an attack on public participation, but instead an attack on the distortion of facts, or lying during that participation.
I would answer both of the questions you pose in the affirmative. Any government official is ethically bound to encourage, or at least not hinder, public participation. Also, as an officer of the court, an attorney does hold a special position that should obligate him or her to recognize and (again) at least not hinder public participation.
With both of my answers in support of maximizing public participation, I would feel the need (after reading your post) to qualify my support to include only "responsible" public participation, by which I mean participation that endeavors in good faith to provide true information and testimony to decision-makers. While I cannot see any rationale which would preclude the participation of those who would knowingly present false information, I would not see the subsequent exposure of false or "distorted" information as being anything but an attempt to set the record straight. Setting the record straight, if it is done truthfully, cannot be considered an attack on public participation.
While we don't expect members of the general public to be held to the same ethical standards of our government officials, it appears that the argument could as easily be made that a group of citizens from the public loudly opposing a project could be accused of discouraging the current and future applicants from exercising their rights to apply for an amendment. That seems to be the case as the current applicant decided to withdraw the application.
Again, perhaps there is more to this story than was included in the post. Maybe the withdrawal letter suggested that the opponents were not entitled to have an opinion or that they should not have been allowed to participate. But from what is stated here, it seems that if the attorney in question was truthful in his assertion that the project opponents were distorting the facts of the project, then there was no attack on public participation. What am I missing?
Robert Wechsler says:
Wed, 2013-10-09 19:06
Permalink
I have no idea how accurate the citizens group was. But the chair of the planning and zoning commission said that the First Selectman, effectively the mayor (and of the same party as the majority of p&z members), had decided to oppose the amendment after having favored it, so it's hard to believe that the so-called distortions were so great.
I agree that there should be discussion of the facts. But when I went to the meeting to hear this discussion, all I heard was an accusation against the citizens group without one bit of evidence about any distortion that might have occurred (or that any inaccuracies were not due to ignorance). The letter precluded discussion, and even a presentation of the citizens group's views, at least for the time being. It appeared to me that the letter's intent was to cast doubt on their views without giving them a forum to express them.
Scott Wolfe (not verified) says:
Thu, 2013-10-10 12:37
Permalink
Sounds like there are a lot of unknowns about this specific case. Nevertheless, it does provide an excellent setting for the discussion of the kind of ethical issues that arise when more than one hat is worn and the considerations that must be taken to ensure that one public role does not adversely impact the other.
Thanks for all your thought-provoking posts! I think that local government ethics gets nowhere near the emphasis that it should. The information you provide helps to keep people thinking about these important issues.