Advisory Opinion No. 2019-1 Rhode Island Ethics Commission Advisory Opinion No. 2019-1 Approved: January 8, 2019 Re: The Honorable Stephen R. Archambault QUESTION PRESENTED: The Petitioner, a legislator serving in the Rhode Island Senate, a state elected position, who was recently selected by the Smithfield Town Council to serve as the Town of Smithfield’s Assistant Solicitor for criminal prosecutions, a municipal appointed position, requests an advisory opinion regarding whether he may simultaneously serve in both positions. 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, who was recently selected by the Smithfield Town Council to serve as the Town of Smithfield’s Assistant Solicitor for criminal prosecutions, a municipal appointed position, is not prohibited by the Code of Ethics from simultaneously serving in both positions. The Petitioner informs that he is a state legislator who represents District 22, which includes the Towns of Smithfield, North Providence, and Johnston. The Petitioner represents that the Smithfield Town Council (“Town Council”) recently offered him the position of Assistant Solicitor for the prosecution of criminal cases brought by the Smithfield Police Department. The Petitioner advises that there would be no overlap between his duties as a State Legislator and the duties of the Assistant Solicitor for criminal prosecutions. However, the Petitioner notes that he was asked by the Town Council to seek an advisory opinion from the Ethics Commission regarding whether the Code of Ethics prohibits his appointment as Assistant Solicitor, given that he serves as a legislator in the Rhode Island Senate. Under the Code of Ethics, a public official may not accept other employment which would impair his independence of judgment or require him to disclose confidential information acquired in the course of his official duties. R.I. Gen. Laws § 36-14-5(b). Additionally, the Code of Ethics prohibits a public official from using his public position or confidential information received through his position to obtain financial gain, other than that provided by law, for himself, a family member, a business associate or employer. Section 36-14-5(d). Furthermore, a public official may not participate in any matter in which he has an interest that is in substantial conflict with the proper discharge of his duties or employment in the public interest. Section 36-14-5(a). A substantial conflict of interest occurs if he has reason to believe or expect that he or any family member or business associate, or any business by which he is employed, will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. Section 36-14-7(a). The aforementioned provisions of the Code of Ethics do not create an absolute bar to simultaneous service as a member of the General Assembly and as a town assistant solicitor. Rather, the provisions cited require a case-by-case evaluation and determination regarding whether a substantial conflict of interest exists with respect to carrying out an official’s duty in the public interest. The Ethics Commission considered a fact pattern analogous to that raised by the instant Petitioner in Advisory Opinion 2004-18, in which the Ethics Commission opined that a member of the House of Representatives who represented District 68, which included Bristol and Warren, was not prohibited from applying for, interviewing for, or accepting a position as the Town Solicitor for the Town of Warren. The Commission opined that no conflicts of interest under the Code of Ethics appeared to be present because the duties of a state legislator and town solicitor were separate and distinct. See also A.O. 2010-60 (opining that a member-elect of the Rhode Island Senate was not prohibited by the Code of Ethics from simultaneously serving as an appointed member of the North Kingstown Harbor Management Commission); A.O. 2002-24 (opining that a legislator serving as a State Senator could accept employment as legal counsel to a municipal housing authority, given that his simultaneous service in both positions did not present an inherent conflict of interest under the Code because the spheres of responsibility that fell to those respective positions were different). Here, based upon the Petitioner’s above representations, the review of prior advisory opinions and pertinent provisions of the Code of Ethics, there is no indication that the Petitioner’s simultaneous service as a Senator and Assistant Solicitor would present an inherent conflict of interest under the Code of Ethics. It is unlikely that the Petitioner’s service as Assistant Solicitor for the Town of Smithfield would impact his responsibilities as a State Senator and vice versa, given the different spheres of responsibilities that fall to those respective positions. Therefore, it is the opinion of the Ethics Commission that the Petitioner is not prohibited by the Code of Ethics from simultaneously serving in as State Legislator and the Town of Smithfield Assistant Solicitor for criminal prosecutions. However, the Petitioner is cautioned that if any matter should come before him as he is carrying out his duties in either of his public roles that present any other potential conflict of interest which is not otherwise contemplated in this advisory opinion, he 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 ethics may have on this situation. Code Citations: § 36-14-5(a) § 36-14-5(b) § 36-14-5(d) § 36-14-6 § 36-14-7(a) Related Advisory Opinions: A.O. 2010-60 A.O. 2004-18 A.O. 2002-24 Keywords: Dual Public Roles