Advisory Opinion No. 2020-14 Rhode Island Ethics Commission Advisory Opinion No. 2020-14 Approved: March 3, 2020 Re: Mark P. Welch QUESTION PRESENTED: The Petitioner, Legal Counsel to the North Providence Town Council, a municipal appointed position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from representing clients in his private law practice before the Rhode Island Superior and District Courts, and before the Rhode Island Traffic Tribunal, in criminal and traffic matters involving the North Providence Police Department. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, Legal Counsel to the North Providence Town Council, a municipal appointed position, is not prohibited by the Code of Ethics from representing clients in his private law practice before the Rhode Island Superior and District Courts, and before the Rhode Island Traffic Tribunal, in criminal and traffic matters involving the North Providence Police Department. The Petitioner serves as Legal Counsel to the North Providence Town Council (“Town Council”). He states that he was originally appointed to that position by the Town Council in 2007, pursuant to the Town of North Providence Charter (“Charter”), and has served continuously since. He describes his duties in that role as advising the Town Council as to legal matters, writing legal opinions, and performing such other duties as the Town Council may require or as may be required under the Charter. The Petitioner emphasizes that he is not part of the North Providence (“Town”) Solicitor Staff, nor does he answer to, or take direction from, either the Mayor or the Town Solicitor (“Solicitor”) who is appointed by the Mayor. He describes the duties of the Solicitor and his staff and, more specifically, the duties of the Assistant Solicitor in conjunction with the North Providence Police Department (“Police Department”), as including the prosecution of criminal and traffic matters in the State of Rhode Island District Courts and Traffic Tribunal, adding that the Office of the Attorney General prosecutes felonies and misdemeanor appeals in Superior Court with the assistance of the Police Department. The Petitioner represents that, in his role as Legal Counsel to the Town Council, he does not prosecute criminal or traffic matters, nor does he provide legal services to the Police Department, explaining that those roles are handled by the Solicitor and his staff. It is in the context of these facts that the Petitioner seeks guidance from the Ethics Commission regarding whether the Code of Ethics prohibits him from representing clients in his private law practice before the Rhode Island Superior and District Courts, and before the Rhode Island Traffic Tribunal (collectively, “State Courts”), in criminal and traffic matters involving the North Providence Police Department. The Code of Ethics provides that a public official or employee shall not have any interest, financial or otherwise, direct or indirect, or engage in any business, employment, transaction or professional activity which is in substantial conflict with the proper discharge of his duties or employment in the public interest. R.I. Gen. Laws § 36-14-5(a). A public official or employee has an interest which is in substantial conflict with the proper discharge of his duties or employment in the public interest if he has reason to believe or expect that he, any person within his family, his business associate, or any business by which he is employed or represents will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. Section 36-14-7(a). Additionally, the Code of Ethics provides that a public official or employee may not use his office or confidential information received through his office to obtain financial gain for himself, his family member, his business associate, or any business by which he is employed or which he represents. Section 36-14-5(d). Further, the Code of Ethics provides that a public official or employee shall not accept other employment that would impair his independence of judgment as to his official duties or require or induce him to disclose confidential information acquired by him in the course of his official duties. Section 36-14-5(b). The Ethics Commission has on numerous previous occasions addressed the representation of private clients by attorneys working for municipalities. In Advisory Opinion 2008-27, for example, the Ethics Commission opined that a Municipal Court Prosecutor for the Town of North Providence, whose duties included prosecuting traffic offenses, animal violations, and zoning enforcement matters, was not prohibited by the Code of Ethics from representing clients in his private capacity before municipal agencies for which the petitioner had no official duties and over which the petitioner exercised no authority or control. See also A.O. 2011-13 (opining that the Town Solicitor for the Town of Coventry could continue to represent private clients before the Coventry School Department in special education hearings because the petitioner was neither a member of, nor was he employed by, the School Department and, notably, the School Department did not utilize the Solicitor’s Office for legal assistance, given that it was authorized to, and in fact had retained, its own independent legal counsel). Contra A.O. 99-68 (opining that the Johnston Town Solicitor could not continue to represent an individual in a criminal matter brought by the Johnston Police Department, given that his duties as Town Solicitor included providing legal counsel to the Johnston Police Department and acting as the prosecutor for misdemeanor violations brought by that Department). Here, the Petitioner is seeking to represent private clients in State Courts before which he has no official duties as Legal Counsel to the Town Council. Additionally, although the Petitioner’s representation of private clients in State Courts might involve the Police Department for the same municipality in which the Petitioner serves, the Petitioner has no official duties for, and exercises no authority or control over, the Police Department. Based upon his representations, the Petitioner’s private legal work in State Courts in matters involving the Police Department would not be in substantial conflict with his duties as Legal Counsel to the Town Council. Furthermore, there is no reason to believe that the Petitioner’s private legal work in State Courts in matters involving the Police Department would impair his independence of judgment as to his official duties or require or induce him to disclose confidential information acquired by him in the course of those official duties. Accordingly, it is the opinion of the Ethics Commission that the Petitioner is not prohibited by the Code of Ethics from representing clients in his private law practice in State Courts in criminal and traffic matters involving the North Providence Police Department. 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) § 36-14-7(a) Related Advisory Opinions: A.O. 2011-13 A.O. 2008-27 A.O. 99-68 Keywords: Private Employment