Advisory Opinion No. 2014-28 Rhode Island Ethics Commission Advisory Opinion No. 2014-28 Approved: October 21, 2014 Re: Joseph J. Nicholson, Jr., Esq. QUESTION PRESENTED: The Petitioner, the Interim City Manager for the City of Newport, a municipal appointed position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from simultaneously serving as legal counsel to the Housing Authority of the City of Newport for the duration of his temporary service as Interim City Manager and, in the future, when he resumes his role as Newport City Solicitor. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the Interim City Manager for the City of Newport, a municipal appointed position, is not prohibited by the Code of Ethics from simultaneously serving as legal counsel to the Housing Authority of the City of Newport for the duration of his temporary service as Interim City Manager and, in the future, when he resumes his role as Newport City Solicitor. The Petitioner was appointed by the Newport City Council (“City Council”) to serve as the Interim City Manager in July 2014. He represents that he has also served as City Solicitor since his first appointment by the City Council in 1988, and he expects to return to that position as soon as a new City Manager is hired. In his private capacity, the Petitioner is a partner in the law firm of Nicholson & Sampson, LLP. He represents that the Housing Authority for the City of Newport (“Housing Authority”) is one of Nicholson & Sampson’s clients. The Petitioner represents that the Housing Authority oversees and implements United States Department of Housing and Urban Development (“HUD”) programs, which provide for public housing to residents of the City. He states that his representation of the Housing Authority generally does not involve appearing before any City boards, commissions, agencies or entities. Rather, he states that he provides advice to the Housing Authority’s Board of Commissioners, Executive Director and staff members. He represents that he appears on behalf of the Housing Authority in the Rhode Island District and Superior Courts on eviction matters, which usually arise from the non-payment of rent. He informs that he also occasionally represents the Housing Authority before the Board of Tenants’ Affairs (“BTA”) in appeals by tenants, who are usually represented by Rhode Island Legal Services. The Petitioner advises that the Housing Authority and the BTA are created and governed by Chapter 25 of Title 45 of the Rhode Island General Laws, which is entitled “City Housing Authorities.” The state’s purpose in establishing city housing authorities was to provide for sanitary and safe housing and to ensure that such housing is available for all of the city’s inhabitants. See R.I. Gen. Laws § 45-25-5(a). Thus, the Housing Authority and the BTA operate independently of City government, having been created by state law and being subject to HUD rules and regulations.[1] The Housing Authority was established in 1940 and currently has seven Commissioners, two of whom are residents of public housing facilities and are elected to serve by fellow residents. He represents that, in accordance with state law, the City Council appoints the remaining five Commissioners to the Housing Authority. He represents that the City Council’s only power over the Housing Authority is this appointment authority. See R.I. Gen. Laws §§ 45-25-10, -10.2. He states that the Housing Authority is a quasi-public authority over which the City Council has no fiscal control and it is not funded by the City budget. He informs that the Housing Authority is primarily funded by federal public housing subsidies and derives additional income from the rents paid by tenants and from federal grants. He states that the Housing Authority owns the land and buildings where its offices are located. He represents that the Housing Authority’s Board of Commissioners hires an Executive Director, who in turn hires the Housing Authority’s staff members, none of whom are city employees. Finally, he states that the Housing Authority does not utilize the City Solicitor’s office and has traditionally employed its own legal counsel.[2] Similar to the Housing Authority, the BTA is a quasi-public authority that is not part of the City government. The BTA was created in accordance with section 45-25-18.2, which provides: “There is created a board of tenants’ affairs for each city or town having a housing authority and operating one or more housing projects as provided by this chapter.” He states that the BTA is staffed and financed, as necessary, by the Housing Authority. Section 45-25-18.4. He informs that the BTA has at least eight members, half of whom are residents of public housing facilities, elected by their fellow tenants, and the other half are appointed by the City Council. Section 45-25-18.3. The Petitioner represents that this limited appointment authority is the only authority that the City Council has over the BTA. He informs that the Housing Authority uses the BTA as its mandated federal grievance panel.[3] The Petitioner represents that the Housing Authority does not presently have any matters pending before the City Council or any other City agency. He informs that since approximately 2005, some of the Housing Authority’s real estate transactions required it to appear before the City Council and the City Planning Board to seek regulatory relief. He states that the Housing Authority hired different legal counsel for this specialized real estate/tax work. He represents that he did not provide counsel to the Housing Authority on these transactions and he also recused from these matters in his capacity as City Solicitor. The Petitioner states that neither the City Manager nor the City Solicitor has any authority or control over, or involvement with the Housing Authority or the BTA. He further states that neither of the assistant City Solicitors has any duties related to the Housing Authority. Given the above facts, the Petitioner seeks guidance as to whether the Code of Ethics prohibits him from serving as legal counsel to the Housing Authority, given his official duties currently as Interim City Manager and, in the future, as City Solicitor. The central issue here is whether the Petitioner’s representation of the Housing Authority, given his City position as either Interim City Manager or City Solicitor, implicates Rhode Island General Laws § 36-14-5(e) or Commission Regulation 36-14-5008 (“Regulation 5008), two of the so-called “revolving door” provisions of the Code of Ethics. Section 5(e) prohibits a public official from representing himself or any other person 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). A public official represents another person before a state or municipal agency if he “is authorized by that other person to act, and does in fact act, as the other person’s attorney at law.” Commission Regulation 36-14-5016(b)(1). A “person” is defined as “an individual or a business entity.” Section 36-14-2(7). Section 5(e)’s prohibitions continue while the official remains in office and for a period of one year thereafter. Regulation 5008(b) provides: No municipal appointed or elected official or employee, who exercises fiscal or jurisdictional control over any municipal agency, board, commission or governmental entity, shall act, for compensation, as an agent or attorney before such agency, board, commission or governmental entity for any person or organization in any particular matter in which the municipality has an interest or is a party. Regulation 5008(b) provides for certain exceptions, such as appearing before a state court of public record or a matter requiring only ministerial acts. The Code of Ethics also 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 business by which he is employed or whom he represents. Section 36-14-5(d). 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). A “business” is defined as “a sole proprietorship, partnership, firm, corporation, holding company, joint stock company, receivership, trust or any other entity recognized in law through which business for profit or not for profit is conducted.” Section 36-14-2(2). The Commission has previously found that the Code of Ethics does not prohibit a public official from holding a position with a municipal government while simultaneously holding a position with a housing authority in the same municipality. See A.O. 2005-46 (opining that a Commissioner for the Cumberland Housing Authority was not prohibited by the Code of Ethics from continuing his full-time employment with the Cumberland School Department, given that his duties in each position were separate and distinct and the absence of a direct financial nexus between his two positions); A.O. 2004-10 (opining that a Commissioner for the Pawtucket Housing Authority was not prohibited by the Code of Ethics from simultaneously serving as an Administrative Assistant to the Mayor of Pawtucket, where the duties of each position were separate and distinct, and there was no indication that the dual public roles would impair the petitioner’s independence of judgment as to his individual public responsibilities). As an initial matter, similar to Advisory Opinions 2005-46 and 2004-10, there is no reason to believe that the Petitioner’s legal work for the Housing Authority would impair his independence of judgment or induce him to disclose confidential information acquired by him in the course of his official duties with the City, given that as Interim City Manager or City Solicitor he has no duties or involvement with the Housing Authority. Accordingly, the Code of Ethics does not generally prohibit the Petitioner’s service as legal counsel to the Housing Authority while simultaneously serving as either the Interim City Manager or the City Solicitor. Rather, the Code of Ethics requires a matter by matter evaluation and determination as to whether a conflict of interest exists in specific situations. First, we must consider the prohibitions contained in section 5(e). Here, both the Housing Authority and the BTA are quasi-public authorities that, although they share geographical boundaries with the City, are separate and distinct from City government. Under the Code of Ethics, the definition of “municipal agency” specifically includes “quasi-public authority.”[4] Section 36-14-2(8)(ii). As municipal agencies under the Code of Ethics, neither the Housing Authority nor the BTA are considered to be a “business” or a “person” as those terms are defined in the Code of Ethics. Section 36-14-2(2), (7); see also A.O. 2013-3 (opining that the Deputy Utilities Director for the City of Newport, who severed his employment with the Rhode Island Department of Health (“DOH”) less than a year prior, could represent the City before DOH because his representation of the City, a municipal agency, did not constitute representing another “person” before an agency by which he was employed). Therefore, section 5(e)’s prohibition does not apply to the instant set of facts because the Petitioner’s representation of the Housing Authority before any City board, agency, commission or entity, does not constitute representing a “person” before a municipal agency by which he is employed. However, in order to avoid appearances of impropriety, the Ethics Commission encourages the Petitioner to continue his practice of recusing from representing the Housing Authority before any City agencies over which he exercises any authority or control in his capacity as Interim City Manager or as City Solicitor. Second, we must consider the prohibitions contained in Regulation 5008(b). Based upon the above representations, the BTA is not part of City government, and the Petitioner has no interaction or involvement with the BTA as either Interim City Manager or City Solicitor. Therefore, the Petitioner’s appearance before the BTA on behalf of the Housing Authority does not implicate Regulation 5008 because neither the Interim City Manager nor the City Solicitor has any jurisdictional or fiscal control over the BTA. Accordingly, absent additional facts indicating a conflict of interest, it is the opinion of the Ethics Commission that the Petitioner is not prohibited by the Code of Ethics from serving as legal counsel to the Housing Authority while simultaneously serving as Interim City Manager or City Solicitor. The Petitioner is cautioned, however, that, if any matter should come before him as he is carrying out his duties in either of his public roles that may present any other potential conflict of interest that is not otherwise contemplated in this advisory opinion, or circumstances in which it is reasonably foreseeable that there will be a financial impact upon the Petitioner personally, he should either request further advice from the Ethics Commission or exercise the recusal provision found at § 36-14-6. 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: § 36-14-2(2) § 36-14-2(7) § 36-14-5(b) § 36-14-5(d) § 36-14-5(e) § 36-14-6 Commission Regulation 36-14-5008 Commission Regulation 36-14-5016 Related Advisory Opinions: A.O. 2013-3 A.O. 2005-46 A.O. 2004-10 Keywords: Dual Public Roles