Advisory Opinion No. 2018-31 Rhode Island Ethics Commission Advisory Opinion No. 2018-31 Approved: June 5, 2018 Re: The Honorable Donna M. Nesselbush QUESTION PRESENTED: The Petitioner, a legislator serving in the Rhode Island Senate, a state elected position, requests an advisory opinion regarding whether she may participate in the legislative process regarding proposed legislation to eliminate the statute of limitations applicable to civil actions alleging sexual abuse, given that her private law office represents one or two clients who would potentially benefit from the law, should it pass. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a legislator serving in the Rhode Island Senate, a state elected position, may participate in the legislative process regarding proposed legislation to eliminate the statute of limitations applicable to civil actions alleging sexual abuse, pursuant to the Code of Ethics’ class exception. The Petitioner is a member of the Rhode Island Senate. In her private capacity she is an attorney and partner at Marasco & Nesselbush, LLP, a Rhode Island law firm that focuses primarily on cases involving personal injury and social security disability. She states that during the 2018 legislative session she introduced legislation that would eliminate the statute of limitations for injuries suffered by any person as a result of sexual abuse. She states that she has since learned that one or two of her firm’s clients may have sexual abuse claims that are currently barred by the statute of limitations for such actions. She therefore seeks advice from the Ethics Commission as to whether the Code of Ethics permits her continued participation in the Senate’s consideration of the bill. Under the Code of Ethics, a public official may not participate in any matter in which she has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of her duties in the public interest. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if the public official has reason to believe or expect that she or any family member or business associate, or any business by which she is employed, will derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity. Section 36-14-7(a). Additionally, a public official may not use her public office for pecuniary gain, other than as provided by law, for herself, a family member, employer, business associate, or a business that she represents. Section 36-14-5(d). In prior advisory opinions, the Commission has found that the attorney-client relationship creates a business association for purposes of the Code of Ethics. See, e.g., A.O. 2007-5 (stating that “[t]he Commission has long held that an attorney and his or her clients are considered to be business associates as that term is defined in the Code of Ethics”); A.O. 2003-17 (opining that an attorney’s representation of petitioner’s company created a business association). It is worth noting that an attorney-client relationship ceases being a business association for purposes of the Code of Ethics once the attorney no longer represents the client in an ongoing matter, bills for prior representation have been paid and there are no plans for specific representation in the near future. Id. In order to determine whether the above provisions of the Code of Ethics limit the Petitioner’s participation in the legislative process as to the subject bill, the Commission must first ascertain whether the Petitioner or her business associate-clients are likely to be financially impacted by the bill’s passage or failure. Here, the Petitioner is a private attorney who owns and operates a law firm that specializes in personal injury and social security disability claims. She represents that one or two of her firm’s clients would potentially benefit from a law that eliminates the statute of limitations for civil claims involving sexual abuse. Accordingly, we find that it is reasonably foreseeable that the passage of the referenced legislation would result in a financial impact to the Petitioner and some of her clients. However, given that the legislation applies equally to all victims of sexual abuse, and to the attorneys who represent them, we will consider the application of the “class exception” to this particular set of circumstances. Section 36-14-7(b) of the Code of Ethics, referred to as the “class exception,” states: A person subject to this Code of Ethics does not have an interest which is in substantial conflict with the proper discharge of his or her duties in the public interest and of his or her responsibilities as prescribed by the laws of this state, if any benefit or detriment accrues to him or her or any person within his or her family or any business associate, or any business by which the person is employed or which the person represents, as a member of a business, profession, occupation or group, or of any significant and definable class of persons within the business, profession, occupation or group, to no greater extent than any other similarly situated member of the business, profession, occupation or group, or of the significant and definable class of persons within the business, profession, occupation or group. When determining whether any particular circumstance justifies the application of the class exception, the Commission considers the totality of the circumstances including, where appropriate: 1) the description of the class; 2) the size of the class; 3) the function or official action being contemplated by the public official; and 4) the nature and degree of foreseeable impact upon the class and its individual members as a result of the official action. It is also worthwhile to consider the Commission’s past opinions and analysis in similar cases. The Commission considered a very similar question in Advisory Opinion 91-25. There, a member of the Rhode Island Senate, who was a private attorney who handled personal injury cases, asked whether he was permitted to sponsor and vote on legislation which would prohibit insurance companies from placing language in policies which would prevent a person from filing a claim against his or her family members. The Commission recognized that the law, if passed, would enlarge the ability of persons who are injured to file claims, benefitting such claimants and the lawyers who represent them. However, applying the class exception, the Commission found that any benefit to the Senator was to no greater extent than any other similarly situated member of the legal profession. Accordingly, the Code of Ethics did not bar his introduction of the legislation nor his vote for passage. The Commission has applied the class exception in numerous other instances involving legislators and proposed legislation. See A.O. 2017-25 & 26 (members of the House of Representatives who are firefighters may participate in legislation that would impact firefighters across the state); A.O. 2004-27 (State Senator who is a pharmacist and pharmacy owner may participate and vote on legislation that generally impacts pharmacies and health care if he is financially impacted to no greater or lesser extent than similarly situated pharmacists or facility owners); A.O. 98-40 (member of the House of Representatives who is married to a dentist may participate and vote on legislation relating to the practice of dentistry since the legislation at issue affects all dentists within Rhode Island to the same extent); A.O. 98-14 (member of the House of Representatives who owns a restaurant which serves alcohol may vote on legislation relating to the legal alcohol limit since the legislation at issue affects all members of the restaurant, bar and hospitality industry to the same extent). In the present matter, the subject legislation would potentially impact all victims of sexual abuse, and their attorneys, who seek civil justice under Rhode Island law, permitting the filing of civil actions notwithstanding the length of time that has passed since the abuse took place. The Petitioner’s clients would not be impacted by the law’s passage to any greater or lesser extent than other similarly situated victims, and the Petitioner will not be impacted to any greater or lesser extent than other similarly situated attorneys. It is therefore the opinion of the Ethics Commission that the specific facts of this case justify the application of the class exception as set forth in section 36-14-7(b) of the Code of Ethics. The Petitioner may participate and vote on the subject legislation. 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(a) § 36-14-5(d) § 36-14-7(a) § 36-14-7(b) Related Advisory Opinions: A.O. 2017-26 A.O. 2017-25 A.O. 2007-5 A.O. 2003-17 A.O. 2004-27 A.O. 98-40 A.O. 98-14 A.O. 91-25 Keywords: Class Exception