Advisory Opinion No. 2012-7

Re: Amy R. Tabor, Esq.

QUESTION PRESENTED

The Petitioner, a part-time teacher at the University of Rhode Island, a state employee position, who in her private capacity is also a practicing attorney, requests an advisory opinion regarding whether she may represent children with disabilities who attend the Henry Barnard Laboratory School, a department of Rhode Island College, in connection with their right to be provided with reasonable accommodations for their disabilities pursuant to state and federal laws. 

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that that Petitioner, a part-time teacher at the University of Rhode Island, a state employee position, who in her private capacity is also a practicing attorney, may represent children with disabilities who attend the Henry Barnard Laboratory School, a department of Rhode Island College, in connection with their right to be provided with reasonable accommodations for their disabilities pursuant to state and federal laws. 

The Petitioner is a part-time teacher at the University of Rhode Island (“URI”), having been employed there since 1983.  She informs that she teaches two graduate level evening courses in employment law at URI’s Labor Research Center, one course in the fall and one course in the spring.  She represents that in addition to teaching, her responsibilities at URI include participating in departmental meetings and conferences sponsored by the Labor Research Center; formulating exam questions and grading student answers for a comprehensive exam administered prior to graduating from the program; and advising students on post-graduation employment opportunities. 

The Petitioner represents that, in her private capacity, she is a full-time practicing attorney with a primary practice area of special education and disability law.  She states that she represents students with disabilities, and their parents and guardians, who are seeking appropriate special education services and/or reasonable accommodations at the pre-school, elementary, and secondary school levels, in both private and public schools. 

The Petitioner informs that she has been contacted by the parents of a disabled child who is enrolled at the Henry Barnard Laboratory School (“Henry Barnard”), a preschool through fifth grade elementary school located on the campus of Rhode Island College (“RIC”).  She states that Henry Barnard is a department of the Feinstein School of Education and Human Development at RIC.  She represents that the Rhode Island Department of Elementary and Secondary Education classifies Henry Barnard as a private school.  She anticipates that her legal services may include the following actions and contacts with Henry Barnard:  corresponding and attending meetings with school personnel or the school’s attorney on behalf of the child and his or her parents in an effort to obtain the needed accommodations for the child; assisting parents in filing a complaint or request for hearing with the U.S. Office of Civil Rights or other state or federal agencies; representing the child in a lawsuit seeking appropriate accommodations and/or compensation for the denial of the needed accommodations. 

Cognizant that the Rhode Island Board of Governors for Higher Education (“Board of Governors”) is responsible for the control, management and operations of both RIC and URI, the Petitioner asks whether it would be a conflict for her, as an employee of the Board of Governors, to represent clients and potentially file suit against Henry Barnard, a department of RIC.  She represents that her responsibilities at URI do not require or involve any contact with any aspect of RIC, including Henry Barnard.  She states that she does not have or exercise any authority or control over any aspect of RIC.  She further informs that her responsibilities at URI do not require or involve the provision of any legal services to either URI or RIC.  She states that she has no professional affiliation with any attorneys, either in-house or private, who provide legal services to URI or RIC.

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

In Advisory Opinion 2011-13, an attorney sought advice as to whether he could continue to represent private clients before the Coventry School Department in special education hearings, given his recent appointment as the Coventry Town Solicitor.  Notably, he represented that the School Department did not utilize the Town Solicitor’s office for assistance because the School Department was authorized to and did in fact retain its own independent legal counsel.  As such, the Commission opined that the petitioner could continue to represent private clients before the School Department because there was no reason to believe that his private legal work would impair his independence of judgment as to his official duties because his official duties did not involve the School Department. 

In the present matter, similar to Advisory Opinion 2011-13, there is no reason to believe that the Petitioner’s private legal work in special education and disability law for elementary and secondary education students would impair her independence of judgment as to her official duties as a teacher of employment law to graduate students at URI.  While the Petitioner is an employee of the Board of Governors, and both URI and RIC are overseen by the Board of Governors, her work is limited to teaching at URI.  She represents that she has no involvement and does not exercise any authority or control over any aspect of RIC, including Henry Barnard.  Additionally, her private legal work will not require her to appear before the Board of Governors, her employer, given that its jurisdiction is limited to the state colleges and does not extend to whether a private elementary school, such as Henry Barnard, is providing appropriate disability accommodations. 

For all of these reasons, it is the opinion of the Ethics Commission that, absent any other fact that may implicate the Code of Ethics, the Petitioner may represent children with disabilities who attend the Henry Barnard Laboratory School, a department of RIC, in connection with their right to be provided with reasonable accommodations for their disabilities pursuant to state and federal laws. 

Finally, this advisory opinion only considers the Code of Ethics and provides no opinion as to whether such private legal work is permissible under the policies of the Board of Governors for Higher Education, or pursuant to any other policy, statute, rule or regulation.

Code Citations:

§ 36-14-5(b) 

§ 36-14-5(d) 

§ 36-14-5(e)

Related Advisory Opinions:

A.O. 2011-13

Keywords: 

Private Employment