Advisory Opinion No. 2021-21 Rhode Island Ethics Commission Advisory Opinion No. 2021-21 Approved: March 16, 2021 Re: Marisa Desautel QUESTION PRESENTED: The Petitioner, an attorney in private practice who represents the City of Newport as special counsel in an environmental litigation matter, requests an advisory opinion regarding whether the Code of Ethics prohibits her from appearing before the Newport Planning Board and/or the Newport Zoning Board on behalf of a client who seeks to retain the Petitioner as an environmental expert witness to testify in a land use application matter. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Petitioner, an attorney in private practice who represents the City of Newport as special counsel in an environmental litigation matter, is an independent contractor and, therefore, is not subject to the Code of Ethics or limited by prohibitions therein that might otherwise prevent her from appearing before the Newport Planning Board and/or the Newport Zoning Board on behalf of a client who seeks to retain the Petitioner as an environmental expert witness to testify in a land use application matter. The Petitioner represents that she is an attorney licensed in the State of Rhode Island and the focus of her practice is environmental law. She states that in 2019 she was retained by the City of Newport (“City” or “Newport”) to provide legal services to the City relative to an environmental litigation matter (“litigation matter”) in which the City is a party. The Petitioner represents that, following her interview with the Newport Solicitor, she was selected by the City Manager to assist with the litigation matter because of her environmental expertise. The Petitioner emphasizes that she has not been hired or sworn in by the City as a solicitor, nor has any other attorney in her firm been so hired or sworn in. She adds that her law firm is not handling any other legal or business matters with or against the City at this time. The Petitioner explains that the litigation matter is presently in the remediation phase before both the Environmental Protection Agency (“EPA”) and the Rhode Island Department of Environmental Management (“RIDEM”). The Petitioner further explains that she presently appears before both the EPA and the RIDEM relative to the remediation, as she has for some time and expects to for the foreseeable future. She states that, while environmental cases of this nature can continue for a long period of time, it is possible that the litigation matter could eventually be settled without having to be tried in court. The Petitioner states that she bills the City for her legal services and that she receives a Form 1099 from the City each year for income tax purposes. The Petitioner represents that one of her private law clients seeks to retain the Petitioner as an environmental expert witness to testify in a land use application matter before the Newport Planning Board (“Planning Board”) and the Newport Zoning Board (“Zoning Board”). She further represents that, in her capacity as special counsel to the City in the litigation matter, she will not be required to appear before either the Planning Board or the Zoning Board. It is in the context of the foregoing facts that the Petitioner seeks guidance from the Ethics Commission regarding whether the Code of Ethics prohibits her from appearing before the Planning and/or Zoning Boards as an environmental expert witness on behalf of her private client. As a threshold determination, the Ethics Commission must determine whether the Petitioner, in her role as special counsel to the City, is a person subject to the Code of Ethics. Pursuant to R.I. Gen. Laws § 36-14-4, the following groups of individuals shall be subject to the Code of Ethics: “(1) State and municipal elected officials; (2) State and municipal appointed officials; and (3) Employees of state and local government, of boards, commissions, and agencies.” As the Petitioner is indisputably not an elected official of any sort, the question that remains is whether she is to be considered a municipal appointed official or an employee of a local government. The Code of Ethics defines a municipal appointed official as “any officer or member of a . . . municipal agency as defined herein who is appointed for a term of office specified by the constitution or a statute of this state or a charter or ordinance of any city or town or who is appointed by or through the governing body or highest official of state or municipal government.” Section 36-14-2(9). Commission Regulation 520-RICR-00-00-1.1.3(B) Additional Definitions (36-14-2002) (“Regulation 1.1.3”) expands upon this definition to include “any officer or member of a . . . municipal agency as defined herein who is appointed to an office specified by the constitution or a statute of this state or a charter or ordinance of any city or town or who is appointed by, through or with the advice and consent of a governing body, or any court, in state or municipal government, or highest official of state or municipal government.” Here, the Petitioner was not appointed to any term of office but, rather, was selected by the City Manager to provide legal services to the City relative to an environmental litigation matter in which the City is a party because of the Petitioner’s expertise in environmental law. Therefore, the Petitioner is not a municipal appointed official as that term is defined in the Code of Ethics. As to “employees of state and local government, of boards, commissions and agencies,” the Code of Ethics defines these individuals as “any full-time or part-time employees in the classified, non-classified and unclassified service of the state or of any city or town within the state, any individuals serving in any appointed state or municipal position, and any employees of any public or quasi-public state or municipal board, commission or corporation.” Section 36-14-2(4). Regulation 1.1.3(C) further broadens this definition to include: “(1) any individual receiving a salary from a state or municipal agency, whether elected or not, on a full-time or part-time basis; (2) any individual in the classified, non-classified and unclassified service of the judicial, executive and legislative branches of state government; (3) any individual in the classified, non-classified and unclassified service of any municipality within the state; (4) any individual receiving a salary from any public or quasi-public state or municipal board, commission, corporation, or other public or quasi-public agency however named; and, (5) any state or municipal appointed official who receives a salary or stipend for their appointed service.” The Petitioner represents that she is not a salaried employee of the City, but rather, bills the City for her legal services and receives a Form 1099 from the City each year for income tax purposes. The Ethics Commission has repeatedly opined that attorneys in private practice performing legal work for public agencies are independent contractors and, therefore, are not subject to the Code of Ethics, nor constrained by its conflict of interest provisions. See, e.g., A.O. 2009-46 (opining that an attorney in private practice who performed legal work on an hourly basis for the Town of Johnston Zoning Board of Review (“Zoning Board”) through the Town Solicitor’s Office was an independent contractor and, therefore, was not subject to the Code of Ethics or limited by its prohibitions in seeking zoning relief before the Zoning Board); A.O. 2007-43 (opining that an attorney whose law firm served as legal counsel to the North Providence School Committee was an independent contractor and, as such, did not fall under the jurisdiction of the Ethics Commission); A.O. 2004-19 (opining that the petitioner, who served as legal counsel to both the Planning Board and the Zoning Board of Review for the Town of West Warwick, was not subject to the Code of Ethics in that capacity, because independent contractors of state or municipal government are neither “employees” nor appointed officials subject to the provisions of the Code of Ethics); A.O. 2001-34 (opining that the petitioner, who served as legal counsel to the Rhode Island Ethics Commission, was an independent contractor and not subject to the Code of Ethics). See also Gemma v. Rhode Island Ethics Commission, No. PC94-3404 (R.I. Super. Ct., Sept. 17, 1994) (concluding that an attorney contractually retained by the State was not an employee, but an independent contractor and, accordingly, was not subject to the revolving door provisions set forth in R.I. Gen. Laws § 36-14-5(o)). Here, the Petitioner was not elected or appointed to represent the City of Newport, nor is she an employee of the City as that term is defined in the relevant provisions of the Code of Ethics. She provides legal services to the City in the litigation matter in the capacity of independent contractor. As such, she does not fall under the jurisdiction of the Ethics Commission and is not subject to the Code of Ethics. 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: § 36-14-2(4) § 36-14-2(9) § 36-14-4 § 36-14-5(o) 520-RICR-00-00-1.1.3 Additional Definitions (36-14-2002) Related Advisory Opinions: A.O. 2009-46 A.O. 2007-43 A.O. 2004-19 A.O. 2001-34 Related Case Law: Gemma v. Rhode Island Ethics Commission, No. PC94-3404 (R.I. Super. Ct., Sept. 17, 1994) Keywords: Code Jurisdiction