Advisory Opinion No. 2021-1

Rhode Island Ethics Commission

Advisory Opinion No. 2021-1

Approved: January 12, 2021

Re:  Michael W. Favicchio

QUESTION PRESENTED:

The Petitioner, a former member of the Cranston City Council, a municipal elected position, who is privately self-employed as an attorney, requests an advisory opinion regarding whether the Code of Ethics prohibits him from representing clients before the Cranston Probate Court within one year from the date of his official severance from the Cranston City Council.

RESPONSE:

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a former member of the Cranston City Council, a municipal elected position, who is privately self-employed as an attorney, is not prohibited by the Code of Ethics from representing clients before the Cranston Probate Court within one year from the date of his official severance from the Cranston City Council, because such representation pertains to matters of public record in a court of law and, therefore, the Petitioner’s proposed actions fall within the exception found at R.I. Gen. Laws § 36-14-5(e)(4).

The Petitioner completed his last two-year term on the City of Cranston (“Cranston”) City Council (“City Council”) on January 4, 2021, at which time the new City Council members were sworn in and began their two-year terms.[1]  He represents that, in his private capacity, he is a self-employed attorney.  He seeks clarity as to whether he may represent clients before the Cranston Probate Court (“Probate Court”), over which the City Council has appointing authority,[2] prior to the expiration of one year following his official severance from the City Council, based upon the exception set forth in R.I. Gen. Laws § 36-14-5(e)(4) for matters of public record in a court of law. 

The Code of Ethics strictly prohibits a public official from representing himself, or another person, before a state or municipal agency of which he is a member, by which he is employed, or for which he is the appointing authority. Section 36-14-5(e)(1)&(2) (“Section 5(e)”); Commission Regulation 520-RICR-00-00-1.1.4(A)(1)&(2) Representing Oneself or Others, Defined (36-14-5016) (“Regulation 1.1.4”).  These prohibitions continue while the official remains in office and for a period of one year thereafter; however, section 5(e)(4) states that “this prohibition shall not pertain to a matter of public record in a court of law.” 

In prior advisory opinions, the Ethics Commission has recognized that the one-year waiting period set forth in section 5(e)(4) does not extend to individuals who wish to represent clients, within one year from the date of their official severance from public service, when such representation pertains to matters of public record in a court of law.  More specifically, the Ethics Commission has consistently opined that probate courts are courts of public record and have allowed petitioners to represent clients before probate courts within one year of leaving public office.   See A.O. 2015-1 (opining that a former member of the East Providence City Council and other members of his law firm were not prohibited by the Code of Ethics from representing clients before the East Providence Probate Court or the East Providence Municipal Court within one year from the date of the petitioner’s official severance from the City Council, because such representation pertained to matters of public record in a court of law and therefore, were not subject to the one-year probationary period); A.O. 2009-36 (opining that a former Coventry Probate Court Judge could represent clients before the Coventry Probate Court within one year from his termination from service as Probate Court Judge because the Coventry Probate Court is a court of public record); A.O. 2002-9 (opining that a former Woonsocket Probate Court Judge could represent clients before the Woonsocket Probate Court immediately upon leaving his position because the Probate Court is a court of public record).

Here, as a member of the City Council, the Petitioner had the authority to appoint the judge serving on the Probate Court, which would generally implicate the revolving door prohibitions in section 5(e).  However, the instant matter falls squarely within the exception found in section 5(e) of the Code of Ethics relating to matters of public record in a court of law.  Section 36-14-5(e)(4).  Accordingly, it is the opinion of the Ethics Commission that the Petitioner is not prohibited by the Code of Ethics from representing clients before the Cranston Probate Court within one year from the date of his official severance from the City Council.

This Advisory Opinion is strictly limited to the facts stated herein and relates only to the application of the Rhode Island Code of Ethics.  Under the Code of Ethics, advisory opinions are based on the representations made by, or on behalf of, a public official or employee and are not adversarial or investigative proceedings.  Finally, this Commission offers no opinion on the effect that any other statute, regulation, ordinance, constitutional provision, charter provision, or canon of professional ethics may have on this situation. 

Code Citations:          
§ 36-14-5(e)   
520-RICR-00-00-1.1.4 Representing Oneself or Others, Defined (36-14-5016)

Related Advisory Opinions:  
A.O. 2015-1   
A.O. 2009-36             
A.O. 2002-9                           

Keywords:     
Private Employment  
Revolving Door

[1] The Petitioner states that he could not seek reelection in 2020 due to ten-year term limits instituted in Cranston.
[2] The Petitioner explains that, although the City Council has appointing authority for the Probate Court, he expects that the Probate Judge before whom he would appear will have been appointed by the new City Council that was sworn in on January 4, 2021.