Advisory Opinion No. 2015-23 Rhode Island Ethics Commission Advisory Opinion No. 2015-23 Approved: May 19, 2015 Re: William L. Bernstein, Esq. QUESTION PRESENTED: The Petitioner, the former Assistant Solicitor for the Town of Burrillville, a municipal appointed position, who is also an attorney in private practice, requests an advisory opinion regarding whether the Code of Ethics prohibits him from representing clients before the Burrillville Zoning Board and the Burrillville Planning Board within one year following the end of his tenure with the Town of Burrillville. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the former Assistant Solicitor for the Town of Burrillville, a municipal appointed position, who is also an attorney in private practice, is not prohibited by the Code of Ethics from representing clients before the Burrillville Zoning Board and the Burrillville Planning Board within one year following the end of his tenure with the Town of Burrillville. The Petitioner represents that he served for more than twenty-five years as the Assistant Solicitor for the Town of Burrillville (“Town”). He states that his service for the Town ended on February 15, 2015. As Assistant Solicitor, the Petitioner informs that his chief responsibility was the prosecution of criminal complaints in Providence County District Court and the Town’s Municipal Court. He states that his official duties as Assistant Solicitor never included advising or working on behalf of the Burrillville Zoning Board (“Zoning Board”) or the Burrillville Planning Board (“Planning Board”). He represents that either the Town Solicitor or another Assistant Solicitor was assigned to serve as legal counsel to the Zoning Board and Planning Board. Given his prior service as Assistant Solicitor, the Petitioner seeks advice as to whether the Code of Ethics’ revolving door restrictions prevent him from representing clients before the Zoning Board and Planning Board within one year after the end of his tenure with the Town. Section 5(e) of the Code of Ethics strictly prohibits public officials and employees from representing themselves or another person before a state or municipal agency of which they are a member or by which they are employed. R.I. Gen. Laws § 36-14-5(e)(1) & (2); Commission Regulation 36-14-5016(b)(1).[1] These prohibitions continue while the official remains in office and for a period of one year thereafter. Section 36-14-5(e)(4). The Commission has previously opined that current assistant solicitors could represent private clients before municipal boards, courts, or other entities before which they did not represent their municipality or over which they did not have any official duties. For example, in Advisory Opinion 2008-66, a newly appointed Newport Assistant City Solicitor, whose official duties consisted of representing Newport in Municipal Court, asked if he and other attorneys at his law firm could represent private clients before the Newport City Council, Zoning Board, Planning Board, Probate Court, Board of Tax Appeal, or any other Newport board, court or entity. The Commission opined that neither the petitioner nor any other members of his law firm could represent clients before the Newport Municipal Court, given the Petitioner’s substantial public duties there on behalf of Newport. However, based upon the petitioner’s representations that he had no duties to any Newport agency outside of the Municipal Court, he and other members of his firm were not prohibited by the Code of Ethics from representing clients before the other various Newport boards and agencies before which he did not represent the City as Assistant City Solicitor and over which he did not exercise any authority or control. See also A.O. 2013-24 (opining that a Providence Assistant City Solicitor, whose duties were limited to acting as legal counsel for the Providence School Board, was not prohibited by the Code of Ethics from representing private clients before other Providence boards, courts, commissions or entities before which he did not represent the City as an Assistant City Solicitor, and over which he exercised no authority or control, such as the City Council, Zoning Board, Planning Board, Probate Court, Municipal Court and Board of Tax Appeal); A.O. 2008-27 (opining, inter alia, that the North Providence Municipal Court Prosecutor could represent clients in his private capacity before the North Providence Town Council and other Town boards, commissions and departments other than the Municipal Court). In the present matter, the Petitioner served as the Town’s Assistant Solicitor, prosecuting municipal criminal complaints in District Court and Municipal Court, until February 5, 2015. He represents that, as Assistant Solicitor, he had no duties relative to the Zoning Board or Planning Board. Now, no longer a Town official, the Petitioner would like to represent private clients before the Zoning Board and Planning Board. Based upon the above representations, the Petitioner was neither a member of nor employed by the Town’s Zoning Board and Planning Board. Therefore, the one year revolving door restriction, set forth in section 36-14-5(e)(4), is inapplicable to the Petitioner’s representation of private clients before the Town’s Zoning Board and Planning Board. Accordingly, it is the opinion of the Ethics Commission that the Petitioner is not prohibited by the Code of Ethics from representing clients before the Burrillville Zoning Board and the Burrillville Planning Board within one year following the end of his tenure with the Town of Burrillville. 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: § 36-14-5(e) Commission Regulation 34-14-5016 Related Advisory Opinions: A.O. 2013-24 A.O. 2008-66 A.O. 2008-27 Keywords: Private Employment Revolving Door [1] Commission Regulation 36-14-5016(b)(1) provides that a person “represent[s] any other person before a state or municipal agency” if: He or she is authorized by that other person to act, and does in fact act, as the other person’s attorney at law or his or her attorney in fact in the presentation of evidence or arguments before that agency for the purpose of influencing the judgment of the agency in favor of that other person.