Advisory Opinion No. 2011-13

Re: Frederick G. Tobin, Esq.

QUESTION PRESENTED

The Petitioner, the Town Solicitor for the Town of Coventry, a municipal appointed official, who is also a practicing attorney in his private capacity, requests an advisory opinion regarding whether he may continue to represent private individuals before the Coventry School Department in special education hearings.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the Town Solicitor for the Town of Coventry, a municipal appointed official, who is also a practicing attorney in his private capacity, may continue to represent private individuals before the Coventry School Department in special education hearings.

The Petitioner represents that he was appointed as the Town Solicitor (“Solicitor”) for the Town of Coventry (“Town”) in November of 2010. He represents that the Town Charter provides that the Solicitor is the attorney for all of the Town’s boards, commissions, and departments. However, he also represents that section 16-2-9(g) of the Rhode Island General Laws provides that “the elected school committee of any city, town, and regional school district shall be, and is hereby authorized to retain the services of such independent legal counsel as it may deem necessary and convenient.” The same section further provides: “Any counsel so retained shall be compensated out of funds duly appropriated to the school committee, and in no event shall the independent counsel be deemed to be an employee of the pertinent city or town for any purpose.” R.I. Gen. Laws § 16-2-9(g).

The Petitioner represents that the Coventry School Department (“School Department”) has indeed engaged its own independent legal counsel since at least July 2010, pursuant to section 16-2-9(g). He represents that the School Department’s independent legal counsel has no involvement with the Solicitor’s office or with his personal law office. He also states that he personally has no involvement with the School Department in his capacity as Solicitor. As such, the Petitioner requests an advisory opinion as to whether he may continue to represent private individuals before the School Department in special education hearings.

Section 5(e) of the Code of Ethics provides that a public official may not represent himself or any other person, or act as an expert witness, before any state or municipal agency of which he is a member or by which he is employed. R.I. Gen. Laws § 36-14-5(e)(1), (2) and (3). A public official or employee is also prohibited from accepting other employment that will either impair his independence of judgment as to his official duties or employment, or require him to disclose confidential information acquired by him in the course of his official duties. Section 36-14-5(b). Finally, a public official may not use his office for pecuniary gain, other than as provided by law, for himself, a family member, employer, business associate, or a business that he represents. Section 36-14-5(d).

In Advisory Opinion 2008-66, the Commission opined that although the Assistant City Solicitor for the City of Newport would be prohibited, along with the other members of his firm, from representing private clients before the Newport Municipal Court, the Code of Ethics did not prohibit the petitioner or other members of his firm from representing clients before other Newport boards and courts before which he does not represent the City as the Assistant City Solicitor, and over which he exercises no authority or control, such as the City Council, Zoning Board, Planning Board, Probate Court, and Board of Tax Appeal.

Similarly, in the present matter the Petitioner is neither a member of nor is he employed by the School Department, and notably the School Department does not utilize the Solicitor’s office for legal assistance, given that it is authorized to and has in fact retained its own independent legal counsel. Accordingly, based upon the above representations, the Petitioner’s private legal work before the School Department is not in substantial conflict with the proper discharge of his duties as Solicitor. Furthermore, there is no reason to believe that the Petitioner’s private legal work would impair his independence of judgment as to his official duties because he represents that his official duties do not involve the School Department. Therefore, it is the opinion of the Ethics Commission that the Petitioner may continue to represent private individuals before the Coventry School Department in special education hearings.

Code Citations:

§ 36-14-5(b)

§ 36-14-5(d)

§ 36-14-5(e)

Related Advisory Opinions:

A.O. 2008-66

Other Relevant Statutes:

§ 16-2-9(g)

Keywords:

Private Employment