INC NEWS - Let's give it a chance. Let's see what can be improved &work to make it better...
Colin Crossman
crc128 at gmail.com
Mon May 19 23:14:35 EDT 2008
Melissa-
What you seem to describe through your post is an educator or a
facilitator, rather than an advocate. If that is the intent, then what I
write below probably isn't relevant. When the person steps over from an
education role into an advisory or advocacy role, however, things will
become considerably more complicated, especially if the person is an
attorney. Though you point this out in some places, I don't believe that
you fully capture the extent of the problem.
In short, simple conflicts of interest can often be handled by simple
disclosure.
Conflicts of interests, between several clients, when the party with the
potential conflict is an attorney, paid by a third party who may be
adverse to one or more clients, is quite another. Attorneys are bound by
rules of professional conduct that regulate precisely these sorts of
problems. Specifically, RPC 1.7 (reprinted below) guides conflicts of
interest.
It is absolutely not clear that /legal/ representation of a neighborhood
will pass muster on both (a) and all four points of (b) every time, and
yet the job responsibilities of the Neighborhood Advocate would likely
compel the employee to act in favor of one faction or another. Without
further study of the rules of professional conduct and the ethics
rulings, and potentially a formal blessing from the State Bar, I would
think that only a foolish attorney would consider this position -
especially where there are litigious and litigation capable neighbors
who may disagree with the representation filed on their behalf.
Also note, that though (b)(4) allows for informed consent, that is only
allowable if (b)(1) is also true, which may be problematic if there are
two factions that oppose interest.
If, on the other hand, the attorney is limited to providing information
- and not representation in front of a body - then it may not be a problem.
-Colin
Rule 1.7 Conflict of Interest: Current Clients
(a) Except as provided in paragraph (b), a lawyer shall not represent a
client if the representation involves a concurrent conflict of interest.
A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another
client; or
(2) the representation of one or more clients may be materially limited
by the lawyer’s responsibilities to another client, a former client, or
a third person, or by a personal interest of the lawyer.
(b) Notwithstanding the existence of a concurrent conflict of interest
under paragraph (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes
<http://www.law.cornell.edu/ethics/nc/code/NC_CODE.HTM#Reasonable_belief>
that the lawyer will be able to provide competent and diligent
representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one
client against another client represented by the lawyer in the same
litigation or other proceeding before a tribunal
<http://www.law.cornell.edu/ethics/nc/code/NC_CODE.HTM#Tribunal>; and
(4) each affected client gives informed consent
<http://www.law.cornell.edu/ethics/nc/code/NC_CODE.HTM#Informed_consent>,
confirmed in writing
<http://www.law.cornell.edu/ethics/nc/code/NC_CODE.HTM#Confirmed_in_writing>.
Melissa Rooney wrote:
> The Neighborhood Advocate needs to be present at the
> meeting required between the developer and the
> community. Those community residents present would be
> the ones whose voices are heard, just like it is now.
> Those with an NA or BOD would/should have a community
> awareness committee (or other appointed person) who
> would attend this meeting, but if they don't then the
> NA can only go on the concerns of those who bother to
> show up at the meeting.
>
> At the meeting the NA can introduce him/herself and
> make it clear that (s)he is here to help the
> neighborhood with any questions or concerns they have.
> (S)he might even suggest some potential
> problems/concerns that the neighborhood may want to
> think about in relation to the development plan before
> them. This was done by a planning commissioner at last
> week's meeting, when she warned neighbors that they
> should check the development plan's rights of way, or
> they may find that they lose a good portion of their
> front yard to a new road.
>
> At this time, or say 1 -2 weeks later, the
> neighborhood organization rep or simply the group of
> neighbors present, can officially give the NA the
> ability to speak on their behalf. Or they can simply
> use the NA as a go-to person from who to get
> information and assistance, and speak for themselves
> at the upcoming PC and BOCC or CC meetings. Chances
> are that, even with an NA, neighbors will need to
> attend these meetings to show their sincere concerns
> over whatever issues they have.
>
> Of course there may be several neighborhoods who are
> concerned about the project, in which case they will
> each need to give the NA official permission to speak
> for them.
>
> Of course, the NA can still inform the PC, Planning
> Dept, BOCC/CC of all neighbor/citizen groups'
> concerns, without directly/officially 'speaking for
> them.' And if there is a disagreement of neighbors,
> the NA can present both sides of the coin. It's all
> about communication and transparency.
>
> I don't think the NA needs to 'rank' with the PC or
> the Planning Department. They just need to be the
> voice and go-between for Durham citizens' concerns,
> however many neighborhoods/groups/etc. are concerned.
> This would mean that they would explain the process
> and the stance/reasoning of the PC and Planning Dept.
> to concerned citizens, and present those citizens'
> concerns at both PC and BOCC/CC meetings. At the end
> of the day, the process is what it is, and the PC,
> Planning Department, and elected officials still trump
> the NA.
>
> Is there a direct conflict of interest if the NA is a
> lawyer being paid by the city but supposedly
> representing neighborhood interests as their primary
> job responsibility?
>
> I don't think so. I mean, is there a direct conflict
> of interest if someone who works in the development
> board sits on the Planning Commission? I very rarely
> see any paid position that doesn't represent a
> potential conflict of interest. If the
> neighborhoods/citizens are unhappy with the manner in
> which the NA represents their interest, they can
> certainly inform elected officials as such and
> request/demand a new NA.
>
> Just my 10 cents...
>
> Melissa
>
> Melissa Rooney
> Fairfield Rep
> mmr121570 at yahoo.com
>
>
>
>
> --- Mike - Hotmail <mwshiflett at hotmail.com> wrote:
>
>
>> WE DON'T WANT TO REPEAT THE PAST!!!
>>
>> But before moving forward with inserting a
>> Neighborhood Advocate into this
>> years budget let's sit down and work out the details
>> first on HOW this
>> position will benefit the community.
>>
>> Right now the process can be very intimidating and
>> confusing to newcomers
>> (even experiences ones).
>>
>> As Mr. Pickle, Pat and a number of others on this
>> listserve have proven,
>> this forum as just one of the ways these discussions
>> should take place to
>> improve it.
>>
>> Ignoring questions with euphemisms about WHY some
>> feel a Neighborhood
>> Advocate needs to be created doesn't answer those
>> concerns that have already
>> been raised.
>>
>> Which 'voice' would the neighborhood advocate
>> represent over what the staff
>> recommends or how the Planning Commission votes ?
>> The neighborhood
>> association? The board of an NA? The board of an
>> HOA?
>>
>> Is there a formal procedure that neighborhoods need
>> to follow to give the
>> Neighborhood Advocate the ability to speak for them?
>>
>> What if a neighborhood isn't organized? Can a few
>> people speak for a
>> neighborhood without some sort of authority to do
>> so?
>>
>> Where does the Planning Commission recommendations
>> rank if there's a
>> difference in opinions between what the neighborhood
>> wants, the Planning
>> Department says is ok and City Council has to vote
>> on?
>>
>> What happens if a neighborhood is split or still
>> isn't sure about what's in
>> it's best interest in a timely manner? Which
>> position will a NA
>> 'represent'.
>>
>> Is there a direct conflict of interest if the NA is
>> a lawyer being paid by
>> the city but supposedly representing neighborhood
>> interests as their primary
>> job
>> responsibility?
>>
>> Aren't our elected officials (staff and the vision
>> of the Comprehensive
>> Plan) supposed to function in the role of
>> representing our community?
>>
>> Where's our Neighborhood Improvement Services
>> Community Resource personnel
>> fit into this new scheme? Don't they have some of
>> the same job functions
>> that's being proposed for the NA?
>>
>> Why did the OP/ED authors attack NIS capabilities?
>>
>> How can someone say that these questions are red
>> herrings?
>>
>> Mike
>>
>>
>> ----- Original Message -----
>> From: "John Schelp" <bwatu at yahoo.com>
>> To: <inc-list at DurhamINC.org>
>> Sent: Friday, May 16, 2008 2:00 PM
>> Subject: INC NEWS - Let's give it a chance. Let's
>> see what can be improved
>> &work to make it better...
>>
>>
>>
>>> The point I'm trying to make (again) is we don't
>>>
>> know
>>
>>> what final form the Neighborhood Advocate will
>>>
>> take.
>>
>>> And won't know until getting input from community
>>> members, elected officials, staff and others (well
>>> beyond this listserv).
>>>
>>> Frankly, I'm not going get into a tit-for-tat over
>>> questions that are red herrings...
>>>
>>> Will the Neighborhood Advocate hold trump cards
>>>
>> over
>>
>>> the Mayor and Council? Of course not.
>>>
>>> People who ignore history are condemned to repeat
>>>
>> it.
>>
>>> As we said in support of the Neighborhood College
>>> (below), let's give it a chance. Let's see what
>>>
>> can be
>>
>>> improved and work to make it better -- before
>>>
>> jumping
>>
>>> out of the gate and undermining the idea.
>>>
>>> After all, who would want to keep the
>>>
>> neighborhoods in
>>
>>> the dark?
>>>
>>> best,
>>> John
>>>
>>> ****
>>>
>>> Subject: Neighborhood College will help more
>>>
>> people
>>
>>> get involved in the local process
>>> Date: Tue, 3 Jun 2003 16:10
>>>
>>> We have people that would cut the funding for the
>>> Neighborhood College.
>>>
>>> Why would they cut something that has not develop
>>>
>> an
>>
>>> budget. There will be a
>>> start up cost. Durham should not wasting money.
>>>
>> How do
>>
>>> the cutter know how
>>> much it should cost without a history. They say
>>>
>> that
>>
>>> they support the
>>> program, but are willing to cut funding for the
>>> Neighborhood College before
>>> it's get started. They can't have it both ways.
>>>
>> The
>>
>>> City Manger looked at
>>> the cost of other cities Neighborhood College and
>>>
>> came
>>
>>> up with a number. I
>>> respect the opinion of other, let's not be a penny
>>> wise and a pond foolish.
>>> Please read John Schelp responds below. He is on
>>>
>> point
>>
>>> and we need to send a
>>> clear message to the City, we want this program
>>>
>> and
>>
>>> spend what it take to
>>> make it happen. This decision need to be propone
>>>
>> for a
>>
>>> year, when we can evaluate ways to cut cost.
>>>
>>> Your Servant
>>> Melvin L. Whitley
>>>
>>> ****
>>>
>>>
>>>> From what I understand, the speakers would not be
>>>>
>>> paid
>>>
>>>> (rather, classes would be taught by volunteer
>>>>
>> staff,
>>
>>>> elected officials and volunteers active in the
>>>> community). According to the N&O, funding would
>>>>
>> help
>>
>>>> support transportation costs, box meals and class
>>>> materials (not everyone in the Durham community
>>>>
>> has
>>
>>> a computer).
>>>
>>>> Attendees would pay $25 each (to help off-set
>>>>
>> costs
>>
>>>> and encourage participation in all the classes).
>>>>
>>> There
>>>
>>>> may indeed be ways to cut costs (and we can and
>>>>
>>> should
>>>
>>>> look at those ways once the college is
>>>>
>> functioning).
>>
>>>> But I don't think it was helpful to say $5000 was
>>>>
>>> "too
>>>
>>>> much" without first speaking with the folks who
>>>>
>>> worked
>>>
>>>> so hard to get the Neighborhood College this far.
>>>>
>>>> All five PAC's, Durham Literacy Council, East
>>>>
>> Durham
>>
>>>> Fair Share, People's Alliance, Durham Committee
>>>>
>> for
>>
>>>> the Affairs of Black People, Durham Affordable
>>>>
>>> Housing
>>>
>>>> Coalition, InterNeighborhood Council, Durham
>>>>
>> Voter
>>
>>>> Coalition, Northeast Central Economic Development
>>>>
> === message truncated ===
>
>
>
>
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