Advisory Opinion No. 2015-24 Rhode Island Ethics Commission Advisory Opinion No. 2015-24 Approved: May 19, 2015 Re: Michele H. Kazarian, Esq. QUESTION PRESENTED: The Petitioner, the Probate Judge for the City of East Providence, a municipal appointed position, who also works part time as an attorney for the Rhode Island General Assembly, a state employee position, requests an advisory opinion regarding whether the Code of Ethics prohibits: (1) her political activity for various state and local candidates; and (2) her participation in matters before the East Providence Probate Court in which a current or former employee or member of the General Assembly is the attorney of record. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the Probate Judge for the City of East Providence, a municipal appointed position, who also works part time as an attorney for the Rhode Island General Assembly, a state employee position, is not prohibited by the Code of Ethics from: (1) engaging in political activity for various state and local candidates, provided that she does so on her own time and without the use of public resources or equipment; or (2) participating in matters before the East Providence Probate Court in which a current or former employee or member of the General Assembly is the attorney of record, provided that there are no other facts that would implicate the prohibitions within the Code of Ethics.[1] The Petitioner is the Probate Judge for the City of East Providence (“City”), having been appointed by the East Providence City Council and sworn in on December 1, 2014. She states that the East Providence Probate Court (“Probate Court”) is in session on the second and fourth Tuesdays of each month. She informs that the Probate Court’s jurisdiction is limited to certain matters such as decedents’ estates, adult limited guardianships, minor guardianships, adult adoptions and name changes. In addition, the Petitioner represents that she works part time as an attorney in the Office of Legislative Council of the Rhode Island General Assembly (“General Assembly”), which is the principal research and legal arm of the General Assembly. For purposes of clarity, we will address the Petitioner’s questions individually. 1. Does the Code of Ethics prohibit the Petitioner’s political activity for various state and local candidates? The Petitioner represents that, in her private capacity, she serves as the campaign treasurer for the Friends of Katherine Kazarian, a campaign fund for her daughter who is a member of the Rhode Island House of Representatives. She states that she has recently resigned from her position as a member of the East Providence Democratic City Committee, the Representative District 63 Committee, and the Senate District 18 Committee. She seeks guidance as to whether the Code of Ethics prohibits her from participating in and contributing to any state or local political campaigns and activities, given her public employment at the General Assembly and her municipal position as Probate Judge. Under the Code of Ethics, a public official shall not have any interest, financial or otherwise, or engage in any business, employment, transaction or professional activity, or incur any obligation of any nature, which is in substantial conflict with the proper discharge of her 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 she, any person within her family, a business associate or an employer will derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity. Section 36-14-7(a). In considering whether the Petitioner has a conflict with certain political activity, the Commission considers whether the political activity is outside the scope of her public duties; whether she holds a public position concerning elections; and whether public resources and time would be used in the pursuit of political activity. See A.O. 2007-12 (opining that a candidate for the Providence Housing Court was not prohibited by the Code of Ethics from continuing his political activity for various federal, state and municipal candidates based upon his representation that he would not use public resources in pursuit of such political activity); A.O. 2005-42 (opining that a Providence Municipal Court Judge was not prohibited by the Code of Ethics from appearing in political advertisements relating to his son’s campaign to become Rhode Island General Treasurer, because his public duties did not involve state-wide elections and he represented that no public time or resources would be used in the pursuit of such political activity). In the present matter, as Probate Court Judge, the Petitioner does not have jurisdiction over local City elections. As an attorney in the Office of Legislative Council, the Petitioner assists General Assembly members with drafting legislation. Even if the Petitioner worked on proposed legislation relating to elections, all decision making and ultimate authority rest with the legislators, because all proposed legislation must be approved by the both the House and the Senate, and then signed by the Governor. Accordingly, it is the opinion of the Ethics Commission that the Code of Ethics does not prohibit the Petitioner from participating in state or local political activities provided that she does so on her own time and without the use of public resources or equipment. 2. Does the Code of Ethics require the Petitioner to recuse from Probate Court matters in which a current or former employee or member of the General Assembly is the attorney of record? The Petitioner represents that, as an attorney in the Office of Legislative Council, she is directly employed by the Joint Committee on Legislative Services (“JCLS”), but works for the entire General Assembly in the course of her duties, which include conferring with legislators and drafting legislation. She states that the JCLS has five members: the Speaker of the House of Representatives; the House Majority Leader; the House Minority Leader; the President of the Senate; and the Senate Minority Leader. She further informs that many members of the General Assembly, including members of the JCLS, are attorneys in private practice who could represent clients before the Probate Court. Thus, the Petitioner seeks guidance as to whether the Code of Ethics requires her to recuse from matters before the Probate Court if a current or former employee or member of the General Assembly is the attorney of record. Under the Code of Ethics, a public official is prohibited from using her public office or confidential information received through her public office to obtain financial gain for herself, her family, her business associate, or any business by which she is employed or which she represents. Section 36-14-5(d). A public official must recuse herself from participation when her business associate or employer appears or presents evidence or arguments before her state or municipal agency. Commission Regulation 36-14-5002(a)(2) (“Regulation 5002”); Section 36-14-5(f). Additionally, a public official shall not have any interest, financial or otherwise, or engage in any business, employment, transaction or professional activity, or incur any obligation of any nature, which is in substantial conflict with the proper discharge of her duties or employment in the public interest. Section 36-14-5(a). A substantial conflict of interest exists if an official has reason to believe or expect that she, any person within her family, a business associate or an employer will derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity. Section 36-14-7(a). Finally, a public official may not solicit or accept any gift, loan, political contribution, reward, or promise of future employment based on any understanding or expectation that her vote, official action, or judgment will be influenced thereby. Section 36-14-5(g). 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). A business associate is defined as “a person joined together with another person to achieve a common financial objective.” Section 36-14-2(3). A person is defined as “an individual or a business entity.” Section 36-14-2(7). In prior advisory opinions, the Commission has consistently concluded that the Code of Ethics does not consider the relationship between a public official and a public body, such as a state agency, to be that of a “business associate.” For example, in Advisory Opinion 2002-63, a member of the Exeter Town Council questioned whether he could participate in the Exeter Town Council’s consideration of matters regarding land owned by the State of Rhode Island, given that he was then in negotiations with the Rhode Island Department of Environmental Management (“DEM”) to sell land that he owned to the State. Given that the State is not considered to be a “business” under the Code of Ethics, the petitioner was not a “business associate” of the State or DEM. Therefore, the Commission opined that, notwithstanding the State’s negotiations to purchase the petitioner’s land, the Code of Ethics did not prohibit the petitioner from participating in Exeter Town Council matters relating to, or even benefitting, the State and/or its departments. However, the Commission advised that the petitioner would be required to recuse from any matters that could result in a direct benefit to himself, his family, his business associates, his employer or any business that he represents. More recently, in Advisory Opinion 2014-23, the Commission opined that a member of the Rhode Island Board of Education Council on Elementary and Secondary Education (“Board of Education”) was not prohibited by the Code of Ethics from simultaneously serving as a board member of the Trinity Academy for the Performing Arts (“TAPA”), a public charter school, or from participating in Board of Education actions that directly impacted TAPA, because neither the Board of Education nor TAPA was considered to be a “business” under the Code of Ethics. Thus, the petitioner’s memberships on those public entities did not constitute business associations. However, the Commission also advised the petitioner to consider whether her affiliation with TAPA prevented her from being able to participate in the Board of Education’s evaluation of TAPA’s charter renewal application in a fair and objective manner and whether her participation would create an appearance of impropriety. See also A.O. 2011-29 (opining that a Portsmouth Planning Board member, who was also a civil engineer for the Rhode Island Department of Transportation (“DOT”), could participate in the Planning Board’s consideration of a development proposal, notwithstanding that, as a DOT engineer, she had been reviewing the same property to ensure that the state’s property interests were protected). The Commission has also opined that a public official is not required by the Code of Ethics to recuse from participating in matters involving their appointing authority, absent additional evidence implicating the Code of Ethics. See A.O. 2001-71 (opining, inter alia, that a member of the Rhode Island Ethics Commission could participate in the Commission’s consideration of a complaint filed against John B. Harwood, then Speaker of the House of Representatives, notwithstanding that this Commission member was appointed by Speaker Harwood, because the mere fact that a public official presides over and/or decides a matter involving his appointing authority did not constitute a violation of the Code of Ethics without additional evidence implicating the specific prohibitions set forth in the Code). In the present matter, consistent with prior advisory opinions, the Office of Legislative Council at the General Assembly constitutes a “state agency,” as that term is defined in the Code of Ethics.[2] Therefore, the Petitioner is not considered a “business associate” of the General Assembly, her public employer, or any of the General Assembly’s current or former employees or members. See A.O. 2011-10 (opining that a member of the Rhode Island Board of Registration for Professional Engineers (“Board”), who was also the Chief Engineer at the Rhode Island Department of Transportation (“DOT”), was not a business associate of his DOT coworkers and, therefore, could participate in Board matters involving his coworkers). Accordingly, the “business associate” prohibitions contained in section 36-14-5 and Regulation 5002, which would otherwise constrain the Petitioner while carrying out her official duties as Probate Judge, are not implicated here with respect to the members and employees of the General Assembly. Furthermore, section 36-14-5(g) would only be implicated here if there was an understanding or expectation between the Petitioner and any General Assembly member that her continued public employment at the General Assembly is contingent upon the member’s receipt of favorable rulings from her in the Probate Court. The Petitioner expressly represents that there is no such expectation or understanding. For all of these reasons, it is the opinion of the Ethics Commission that the Code of Ethics does not require the Petitioner to recuse from Probate Court matters in which a current or former member or employee of the General Assembly appears as the attorney of record. However, the Code of Ethics would require the Petitioner to recuse from Probate Court matters that involve or would result in a direct financial impact to herself, members of her family, her business associates, her private employer, or any person or business that she represents. We note, and the Petitioner herself raised the same concern before this Commission, that there may be an appearance of impropriety or a perceived bias when the Petitioner presides over cases in which the attorney of record is a General Assembly member, given the members’ influence and authority over her continued employment. However, this appearance of impropriety results primarily from her duty to be impartial as a Probate Judge under the Rhode Island Supreme Court Code of Judicial Conduct. Therefore, we encourage the Petitioner to contact the Rhode Island Supreme Court’s Advisory Committee on the Code of Judicial Conduct with respect to whether recusal may be recommended or required under these circumstances by the Code of Judicial Conduct. Conclusion : In summary, it is the opinion of the Ethics Commission that the Petitioner is not prohibited by the Code of Ethics from: (1) engaging in political activity for various state and local candidates, provided that she does so on her own time and without the use of public resources or equipment; or (2) participating in matters before the East Providence Probate Court in which a current or former employee or member of the General Assembly is the attorney of record, provided that there are no other facts that would implicate the prohibitions within the Code of Ethics. Finally, the Petitioner is advised to contact the Rhode Island Supreme Court’s Advisory Committee on the Code of Judicial Conduct and the Office of Disciplinary Counsel with respect to whether recusal may be recommended or required by either the Code of Judicial Conduct or the Rules of Professional Conduct. The Petitioner is also cautioned that, if any matters should come before her as she is carrying out her duties in either of her public roles that may present any other potential conflict of interest that is not otherwise contemplated in this advisory opinion, she should either request further advice from this Commission or exercise the recusal provision found at section 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 or judicial conduct may have on this situation. Code Citations: § 36-14-2(2) § 36-14-2(3) § 36-14-2(7) § 36-14-5(a) § 36-14-5(d) § 36-14-5(f) § 36-14-5(g) § 36-14-6 § 36-14-7(a) Commission Regulation 36-14-5002 Additional Relevant Law Sup. Ct. Rules, Art. VI, Code of Judicial Conduct Related Advisory Opinions: A.O. 2014-23 A.O. 2011-29 A.O. 2011-10 A.O. 2007-12 A.O. 2005-42 A.O. 2002-63 A.O. 2001-71 Keywords: Dual Public Roles Political Activity [1] As is discussed herein, the Ethics Commission makes no representation as to whether these circumstances require the Petitioner to recuse pursuant to the Rhode Island Code of Judicial Conduct. We encourage the Petitioner to seek further guidance on this question from the Rhode Island Supreme Court’s Advisory Committee on the Code of Judicial Conduct. Rhode Island Supreme Court Rules, Art. VI, Code of Judicial Conduct. [2] Section 36-14-2(8)(i) (including “either branch of the Rhode Island general assembly, or any agency or committee thereof” in the definition of “state agency”).