Advisory Opinion No. 2011-7

Re: Christopher J. Pucino, Esq.

QUESTION PRESENTED

The Petitioner, an Assistant Solicitor for the Town of Coventry, a municipal appointed position, requests an advisory opinion regarding whether the Code of Ethics prevents his service as Assistant Solicitor given his professional and business association with the Coventry Municipal Court Judge.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not bar the Petitioner, an Assistant Solicitor for the Town of Coventry, a municipal appointed position, from serving in that position notwithstanding his professional and business association with the Coventry Municipal Court Judge.

The Petitioner was recently appointed to serve as one of four Assistant Solicitors for the Town of Coventry. He represents that his particular duties, as assigned by the Town Solicitor, are to advise and assist the Planning Commission, Zoning Board and Sewer Subcommittee, and to draft their written decisions. He states that he will also be responsible for advising the Town Planner and Assistant Town Planner, and will also fill in for another Assistant Solicitor from time to time prosecuting misdemeanor offenses in the Kent County District Court. Most relevant to the instant request is the fact that the Solicitor, or a designee Assistant Solicitor, is responsible for prosecuting zoning violations and minimum housing violations before the Coventry Municipal Court. For reasons outlined below, the Petitioner notes that he will not prosecute such cases nor appear before the Municipal Court.

The Petitioner, who outside of his public duties is an attorney in private practice, states that he maintains his law office at the Coventry firm of Capaldi & Boulanger. One of the principals of Capaldi & Boulanger is Arthur G. Capaldi, who also happens to serve as the Coventry Municipal Court Judge. The Petitioner notes that he is an independent contractor and not an employee of the firm, although he does operate out of the firm's offices, shares expenses, appears as an attorney on the firm's letterhead, and is regularly paid by the firm for legal work that he provides to the firm's clients. Given this professional and business association with Judge Capaldi and the Capaldi & Boulanger law firm, the Petitioner notes that he has historically not entered his appearance before the Coventry Municipal Court and that he would continue this practice as Assistant Solicitor. Provided that he so recuses from prosecuting violations or appearing in Municipal Court, the Petitioner asks whether the Code of Ethics otherwise prevents him from serving as Assistant Solicitor in the ways outlined above.

Under the Code of Ethics, a public official must recuse himself from participating in his agency's consideration of a matter if his business associate represents himself or any other person, or acts as an expert witness. R.I. Gen. Laws § 36-14-5(f). A "business associate" is defined in the Code as a person joined with another individual or business entity to achieve a common financial objective. Sections 36-14-2(3), (7). More generally, the Code prohibits a public official from using his public office or confidential information received through his public office to obtain financial gain for himself, his family, his business associate, or any person by which he is employed or whom he represents. Section 36-14-5(d). A public official is not permitted to engage in any employment that will impair his independence of judgment as to his public duties or require or induce him to disclose confidential information acquired in the course of his official duties. Section 36-14-5(b).

Under the facts as represented by the Petitioner, he is a business associate of Judge Capaldi. Given this relationship between the Petitioner and the Municipal Court Judge, the Petitioner's decision to decline any appearances before the Municipal Court is appropriate and necessary to avoid application of the Code's prohibitions. See A.O. 2003-71 (Tiverton Municipal Court Judge must recuse whenever an employee of his law firm represents a client before the Court); A.O. 96-3 (Central Falls Municipal Court Judge must recuse from any matter in which his business associate, the Solicitor, appears).

Although we opine that the Petitioner's private business association does somewhat limit his service as Assistant Solicitor, as set forth above, the Code does not prohibit the Petitioner's service altogether. Accordingly, it is the opinion of the Ethics Commission that, under the facts as represented, the Code of Ethics does not bar the Petitioner from serving as an Assistant Solicitor for the Town of Coventry.

This opinion only concerns the application of the Code of Ethics to the particular facts set forth herein. It does not address any other fact pattern, nor whether any other statute, regulation, rule, policy, charter provision, ordinance, or professional code of conduct applies to regulate this conduct.

Code Citations:

36-14-2(3)

36-14-2(7)

36-14-5(a)

36-14-5(b)

36-14-5(f)

36-14-7(a)

Related Advisory Opinions:

2003-71

96-3

Keywords:

Business associate

Private employment