Advisory Opinion No. 2013-17 Advisory Opinion No. 2013-17 Re: James M. Callaghan, Esq. QUESTION PRESENTED The Petitioner, a Narragansett Town Council member, a municipal elected position, requests an advisory opinion as to whether the Code of Ethics prohibits him from simultaneously serving as a Bail Commissioner/Justice of the Peace, a state appointed position, for the Town of Narragansett. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a Narragansett Town Council member, a municipal elected position, is not prohibited by the Code of Ethics from simultaneously serving as a Bail Commissioner/Justice of the Peace, a state appointed position, for the Town of Narragansett. The Petitioner was elected to the Narragansett Town Council (“Town Council”) in November 2012 and serves as its president. In May 2013, he was appointed by Chief Judge Jeanne E. LaFazia of the Rhode Island District Court to serve as a Bail Commissioner/Justice of the Peace (“Bail Commissioner”) for the towns of Narragansett and South Kingstown, as well as the University of Rhode Island. Bail Commissioners are authorized by the District Court to conduct special arraignments to determine whether a person who has been arrested should be released on bail. These arraignments occur at the police department when court is not in session in the evenings, on weekends and on holidays. He states that Bail Commissioners are paid by the accused who requests their services and the fee amounts are prescribed by statute. R.I. Gen. Laws § 12-10-2. The Petitioner states that his ability to act as a Bail Commissioner in Narragansett was questioned given that the Town Council has fiscal and jurisdictional control over the Narragansett Police Department (“Police Department”), including hiring the Chief of Police and negotiating the collective bargaining agreement with the Local IBPO. The Petitioner represents that the Bail Commissioner assignments for Narragansett rotate weekly among four (4) different people and that his next assignment is June 3, 2013, through June 9, 2013. He represents that the Police Department is required to call the Bail Commissioner on duty that week and if he or she does not answer, they are instructed to call the next person in the rotation. He states that his duties as a member of the Town Council do not intersect with his duties as a Bail Commissioner. Under the Code of Ethics, a public official may not participate in any matter in which he has an interest, financial or otherwise, that is in substantial conflict with the proper discharge of his duties or employment in the public interest. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest exists if an official has reason to believe or expect that he, any person within his family, a business associate or an employer will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. Section 36-14-7(a). Additionally, 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). Finally, the Code of Ethics provides that a public official shall not accept other employment that would impair his independence of judgment as to his official duties, or require or induce him to disclose confidential information acquired by him in the course of his official duties. Section 36-14-5(b). The Commission considered a nearly identical fact pattern in Advisory Opinion 2003-37, in which a Portsmouth Town Council member asked if she could simultaneously serve as a Bail Commissioner in the Town of Portsmouth. There, the Commission found that the Code of Ethics did not bar such simultaneous service, given the different spheres of responsibilities that fall to those respective positions. The Commission also concluded that the petitioner’s interaction with public safety officers, in her capacity as a Bail Commissioner, did not create a relationship that would warrant her recusal from the Town Council on matters involving such officers. See also A.O. 2009-17 (opining that the Chief Legal Counsel to the Rhode Island Department of Corrections was not prohibited from simultaneously serving as a Bail Commissioner given that her official duties as Chief Legal Counsel did not intersect with her duties as a Bail Commissioner). In the present matter, Sections 5(a) and 5(d) of the Code of Ethics do not create an absolute bar to simultaneous service as a Town Council member and as a Bail Commissioner in Narragansett, given that the duties of each position are separate and distinct. Rather, the above provisions require a matter by matter evaluation to determine whether substantial conflicts exist with respect to carrying out an official’s duty in the public interest. Here, as a Town Council member the Petitioner has fiscal and jurisdictional control over the municipal agencies in Narragansett. In contrast, as a Bail Commissioner, the Petitioner conducts arraignments at the police station for persons accused of offenses under the jurisdiction of the District Court, a state agency. Accordingly, it is the opinion of the Ethics Commission that the Petitioner is not prohibited by the Code of Ethics from simultaneously serving as a Narragansett Town Council member and as a Bail Commissioner for the Town of Narragansett. This opinion solely addresses the Code of Ethics and provides no opinion as to whether the Narragansett Town Charter, the Narragansett Code of Ordinances or any other statutes, regulations, rulings or policies prohibit his simultaneous service in these two public positions. Code Citations: § 36-14-5(a) § 36-14-5(b) § 36-14-5(d) § 36-14-7(a) Related Advisory Opinions: A.O. 2009-17 A.O. 2003-37 Keywords: Dual Public Roles