Advisory Opinion No. 2019-10 Rhode Island Ethics Commission Advisory Opinion No. 2019-10 Approved: February 5, 2019 Re: Justin Katz QUESTION PRESENTED: The Petitioner, a member of the Tiverton Town Council, a municipal elected position, requests an advisory opinion regarding whether he may participate in the Town Council’s discussions and voting relative to pending Superior Court litigation that he and two other Town Council members individually initiated against the Town of Tiverton. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a member of the Tiverton Town Council, is required by the Code of Ethics to recuse from participating in the Town Council’s discussions and voting relative to pending Superior Court litigation that he and two other Town Council members individually initiated against the Town of Tiverton. The Petitioner is a recently-elected member of the Tiverton Town Council, having been sworn in on November 26, 2018. Prior to his election, on April 26, 2018, the Petitioner filed a complaint in the Newport County Superior Court (“Superior Court”) against the Town of Tiverton, the Tiverton Board of Canvassers, and the Tiverton Town Clerk seeking declaratory judgment, injunctive relief and reimbursement for his costs and fees.[1] Therein, the Petitioner alleged that the Board of Canvassers had improperly rejected certain proposed resolutions for taxpayer consideration at the 2018 Tiverton Financial Town Referendum. The Petitioner’s lawsuit was eventually consolidated with two other substantially similar Superior Court complaints, one filed by now-Town Council member Robert Coulter (“Coulter”), and another filed by now-Town Council member Nancy Driggs (“Driggs”) and two co-plaintiffs.[2] On May 2, 2018, the Superior Court held a consolidated hearing on all plaintiffs’ motions for a temporary restraining order. The Petitioner, who is not an attorney, represented himself at the hearing. The Town defendants were all represented by Tiverton’s Town Solicitor at that time, Anthony DeSisto. After the Court denied all plaintiffs’ motions for temporary restraining orders, the Financial Town Referendum went forward without the inclusion of plaintiffs’ proposed resolutions. The Petitioner represents that the plaintiffs in all three cases have taken no further actions to move their respective lawsuits forward, although they are all still pending. The Petitioner, Coulter, and Driggs all won election to the Town Council in November 2018. At a Town Council meeting on November 26, 2018, following the swearing-in of the new Town Council members, Anthony DeSisto announced his resignation as Town Solicitor but indicated that he would stay on until a replacement was appointed. On the afternoon of December 27, 2018, the Petitioner filed a motion in the Superior Court to voluntarily dismiss his lawsuit. He represents that Coulter also filed a motion to voluntarily dismiss his own suit, and that Driggs moved to withdraw herself as a plaintiff from the lawsuit she filed with other plaintiffs.[3] The Petitioner represents that, because plaintiffs have not obtained the Town’s consent to their dismissals or withdrawal, the motions to dismiss and withdraw must be approved by the Superior Court after a hearing. He represents that absent the Town’s consent through the filing of a stipulation, the motions are scheduled to be heard in Superior Court on April 1, 2019. At a Town Council meeting on December 27, 2018, after filing his motion to dismiss the complaint, the Petitioner voted along with three other members of the Town Council to appoint attorney Giovanni D. Cicione as Tiverton’s new Interim Counsel for a period of six months, replacing the resigning Solicitor DeSisto.[4] On December 28, 2018, the Petitioner delivered the instant request for an advisory opinion to the Ethics Commission. Therein, the Petitioner notes that the Town Council may wish to discuss and vote to enter into a stipulation consenting to his and Coulter’s voluntarily dismissals and Driggs’ withdrawal, which would eliminate the need for court approval or a hearing on April 1st. If the Town Council does not authorize such a stipulation, the Petitioner states that the Town Council may wish to hire special counsel, or direct Interim Counsel, to appear at the dismissal/withdrawal hearings. The Petitioner seeks this advisory opinion for guidance as to whether he may participate in the Town Council’s discussions and voting as to these matters.[5] Under the Code of Ethics, a public official may not have an interest, financial or otherwise, that is in substantial conflict with the proper discharge of his duties in the public interest. R.I. Gen. Laws § 36-14-5(a). A public official has such a substantial conflict of interest if he has reason to believe or expect that he, a family member, employer or business associate, will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. Section 36-14-7(a). Also, he may not use his public office or confidential information received through his office to obtain financial gain, other than that provided by law, for himself, a family member, employer or business associate. Section 36-14-5(d). Finally, a public official may not disclose, for pecuniary gain, confidential information acquired in the course of and by reason of his official duties. Section 36-14-5(c). Applying these same provisions of the Code of Ethics, the Ethics Commission has previously opined that public officials who have initiated lawsuits against their municipalities must recuse from any decision-making by the municipality relative to the litigation. See A.O. 2012-8 (Charleston Town Council member who was the plaintiff in a wrongful termination lawsuit against the Town was required to recuse from any Town Council matters pertaining to her lawsuit); A.O. 2010-59 (Tiverton Town Council member was prohibited from participating in any Town Council discussions or voting involving any litigation in which he or his spouse was currently a party); A.O. 95-37 (Westerly Town Council member required to recuse from participation in any Town Council matter that affected her pending litigation against the Town). In the instant matter, the Petitioner notes that his litigation against Tiverton is still pending along with the other two lawsuits that make substantially similar allegations, seek the same declaratory relief, and which were previously consolidated for hearing. Given the similarities among these cases, and their prior consolidation for hearing, the Petitioner is required to recuse from Town Council discussions and voting on any matter relating to all three lawsuits. See A.O. 2003-61 (Five Tiverton Town Council members who each mounted a successful legal challenge to the validity of recall petitions must not only recuse from the Town Council’s consideration of whether to reimburse their own individual legal fees but also from the decision to reimburse the other members’ legal fees, since the Council's decision on these common issues as to one member would be applied consistently to each of the other four similarly situated members). In response to the Petitioner’s specific questions, it is the opinion of the Ethics Commission that the Petitioner must recuse from the Town Council’s consideration of whether the Town will consent to plaintiffs’ dismissals and withdrawal, and must further recuse from the Town Council’s discussions and voting relative to hiring special counsel or assigning its current Interim Counsel to represent the Town at the April 1st hearings or in the litigation generally. As noted in footnote number 5, supra, the Petitioner shall also recuse from the Town Council’s discussions and decision-making, if any, regarding Mr. Rom’s remaining litigation. Notice of recusal shall be filed with the Ethics Commission and the Town Council consistent with 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(c) § 36-14-5(d) § 36-14-6 § 36-14-7(a) Related Advisory Opinions: A.O. 2012-8 A.O. 2010-59 A.O. 2003-61 A.O. 95-37 Keywords: Litigation Recusal [1] Civil Action No. NC2018-0152. [2] Civil Action No. NC2018-0158 was filed by Robert Coulter prior to his November 2018 election to the Town Council. Civil Action No. NC2018-0157 was filed by Nancy Driggs and her two co-plaintiffs prior to Driggs’ November 2018 election to the Town Council. [3] The Petitioner represents that one of Driggs’ co-plaintiffs, Justin LaCroix, has also moved to withdraw from the case. The Petitioner states that the sole remaining plaintiff in that case, Richard Rom, has indicated that he does not intend to withdraw or voluntarily dismiss the lawsuit. [4] The motion passed on a 4-3 vote, with Town Council members Katz, Coulter, Driggs and Donna Cook voting in favor. [5] The Petitioner’s initial request for an advisory opinion was supplemented by a written addendum on January 3, 2019, seeking guidance as to his ability to participate in the Town Council’s consideration of Mr. Rom’s remaining litigation against the Town following the dismissal of the Petitioner’s own litigation. In a subsequent telephone call with Ethics Commission staff, the Petitioner represented that, notwithstanding the question raised by the January 3rd addendum, he intended to recuse from participating in any Town Council matters relating to the Rom litigation. Therefore, we need not address this additional question at this time. Consistent with his representations to Commission staff, the Petitioner is advised to either continue recusing on all matters relating to the Rom litigation or seek additional guidance from the Ethics Commission.