Common Sense And Fair Play?
The Public And Taxpayers Be Damned
Withholding Of Public Records At Issue
Taxpayers should not be paying Attorney Byrne’s legal bill -- probably several thousands of dollars -- under such circumstances.
By Thomas D. Williams
The Cool Justice Report
Nov. 14, 2008
EDITOR'S NOTE: Thomas D. Williams is not related to John Williams. This column is available for reprint courtesy of The Cool Justice Report, http://cooljustice.blogspot.com
Some lawyers and judges become obtuse, confused or forgetful when confronting conflicts of interest.
For example, attorneys sometimes continue to represent a government agency being challenged by one of that very agency’s members. Judges have decided complaints brought by organizations they support or oppose, or even sometimes rule on complaints involving clients of their old law practice.
Litchfield, Connecticut's zoning attorney, Steven Byrne, has one of those lawyer’s conflict of interests. He is representing two members and the administrator of the Planning & Zoning Commission, which his firm, Byrne & Byrne, has long represented. In so doing, Attorney Byrne is defending them from the complaint of a third member of the commission, John Williams. Mr. Williams is saying his commission colleagues violated the Connecticut Freedom of Information laws. He says the commission’s chair, vice chair and administrator agreed to block him and other commissioners from getting a Byrne law firm opinion and another report on a commission case in a timely fashion.
“Conflict of interest arises when an individual with a formal responsibility to serve the public participates in an activity that jeopardizes his or her professional judgment, objectivity and independence,” says the Anti-Corruption Resource Center.
In the case at hand, the battles over the Milton section of Litchfield’s noisy White Oak Gun Club, Mr. Williams complained to the Freedom of Information Commission, that on July 18 and after he was obstructed a couple of times in attempting to get two commission documents. Mr. Williams says, the documents, consisting of that key legal opinion from Byrne &Byrne and a report of inquiry from Zoning Administrator Matthew Speck about the gun club dispute, were not supplied to him “promptly.” Mr. Williams said he unsuccessfully demanded them from Mr. Speck and a commission office secretary. Mr. Williams explained that Mr. Speck and commission Chair Barbara Putnam and Vice Chair Bill Burgess met and discussed these reports, just before he asked for them, and agreed not to supply them to him to him or the rest of the commission. They all denied doing that, but Mr. Williams says he has a transcript of those conversations.
Mr. Speck told Mr. Williams that he and other commission members could get access to his report and the Byrne & Byrne legal opinion at a July 21 meeting. They would not need them anyway until an even later date, Mr Speck insisted. Mrs. Putnam was quoted in a Litchfield Enquirer news story as saying that Mr. Williams couldn’t get the documents because neither the town computers nor the land use office copy machine were in operable shape at the time. She did not supply any documentation for that claim.
As a result of the controversy, Mr. Williams hired a lawyer he is paying dearly for. On the other hand, Mrs. Putnam, Mr. Burgess and Mr. Speck obtained the town-paid services of Attorney Byrne. Yet the commission, as it is duty bound to do, never voted to approve Attorney Byrne’s hiring. It was instead given the informal approval of First Selectman Leo Paul. Selectman Paul was later asked if Attorney Byrne’s representation of two commission members and a commission employee against another commission member represented a conflict for Byrne & Byrne. Mr. Paul insisted it was not a conflict. Mr. Williams is a private citizen in this complaint, said Mr. Paul, not a commission member. Mr. Williams was both at the time. And, in this case, Mr. Williams was asking for the data so he could be properly informed as a commissioner about the incredibly controversial gun club case. In fact, what he was asking to obtain included conflicting positions from Mr. Speck and Byrne & Byrne in this complicated commission case.
Attorney Byrne defended himself from criticism by saying he is representing the commission, does not represent commission members, and has never represented Mr. Williams in any capacity. Attorney Byrne explained that he informed Mr. Williams one week before the FOI hearing that he was indeed representing the commission, and neither Mr. Williams nor his lawyer objected. Mr. Williams, however, said that both he and his lawyer were troubled by Attorney Byrne’s conflicting roles in this case. But, Mr. Williams said, his lawyer, David Sherwood, opined that "tactically" they should ignore the situation, at least during the FOI complaint, and bring it up if the case goes to court.
It is very significant that the commission did not vote to retain Attorney Byrne as it is required to do. He was selected by Mrs. Putnam, Mr. Burgess and Mr. Speck with Mr. Paul official approval, and not even a vote from the board of selectmen.
In any case, Connecticut’s Rules of Professional Conduct for lawyers recommend against Attorney Byrne’s conduct. They apply to this situation: a lawyer representing a government agency in a case involving an agency member, who is complaining about that very agency’s official conduct of an agency case. At a minimum, say the rules, the agency lawyer needs to obtain a waiver from that complaining agency member approving of his representation of that agency. That did not happen.
Beyond that, in this very case, one of the documents Mr. Williams asked for in a timely manner was Attorney Byrne’s own firm’s legal opinion. And, it was Byrne & Byrne’s responsibility to ensure Commissioner Williams gets their opinion promptly without obstructions through commission channels. It is not the firm’s role to contest its own legal opinion’s alleged tardy receipt to Commissioner Williams, particularly when the commission didn’t even approve Attorney Byrne’s legal services; and he did not receive a waiver to do so.
In such a case, the logic of state ethics rules suggests Attorney Byrne should have disqualified himself to avoid not only the “appearance of a conflict,” but an actual conflict of interest. Taxpayers should not be paying Attorney Byrne’s legal bill -- probably several thousands of dollars -- under such circumstances.
Mr. Williams’ complaint was initially denied by a hearing officer, but needs a full FOI panel final hearing slated for next month.
Thomas "Dennie" Williams is a former state and federal court reporter, who specialized in investigations, for the Hartford Courant. Since the 1970s, he has written extensively about irregularities in the Connecticut Superior Court, Probate Court systems for disciplining both judges and lawyers for misconduct and the failures of the Pentagon and the VA to assist sick veterans returning from war. He is now a freelance writer for several Internet sites including The Cool Justice Report, Truthout.org and The Public Record. He can be reached at firstname.lastname@example.org.