Advisory Opinion No. 2000-50

Re: Paul A. Brule, Esq.

QUESTION PRESENTED

The petitioner, an attorney whose law firm serves as the Lincoln Assistant Town Solicitor, a municipal appointed position, requests an advisory opinion as to 1) whether he may file an application with the Town's Zoning Board regarding property on which he intends to construct a home; 2) whether he may object to a motion to intervene filed by the Town where he previously represented private litigants in the underlying partition suit; and 3) whether his firm may represent private clients before the Town Council and the Zoning Board.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, an attorney whose law firm serves as the Lincoln Assistant Town Solicitor, a municipal appointed position, may file an application with the Zoning Board regarding property on which he intends to construct a home, based on a finding that his situation constitutes a hardship exception to relevant revolving door prohibitions.

Further, absent a showing that it would be a substantial hardship to his private clients to obtain other legal counsel at this stage of the proceedings, the petitioner may not represent them in objecting to any actions that the Town may take with regard to the partition suit. See R.I. Gen. Laws § 36-14-5(a) and (b). Finally, the petitioner’s law firm may not represent private clients before the Town Council and/or Zoning Board during its tenure as Assistant Town Solicitor and for one year following after that tenure ends. See R.I. Gen. Law § 36-14-5(e).

The petitioner is a member of the law firm of Walsh, Brule & Associates. He advises that the firm serves as the Lincoln Assistant Town Solicitor on a part-time basis. Its duties include assisting the Lincoln Police Department in criminal prosecutions. In January of 1999, the Ethics Commission issued Advisory Opinion 99-23, finding that the petitioner’s firm may represent private clients before the Lincoln Zoning Board, Planning Board, Sewer Assessment Appeal Board, Tax Assessment Appeal Board and Probate Court, provided that the particular matter being heard is not related to a matter with which the firm is involved as the Assistant Town Solicitor. At the Council’s request, the firm subsequently provided services to the Zoning Board and the Council. The petitioner represents that the firm’s expanded duties terminated in October of 1999 and since then has remained limited to part-time criminal prosecutions.

Additionally, the petitioner indicates that he has signed a purchase and sales agreement regarding a parcel of property located within the Town of Lincoln. He represents that he will be required to file an application with the Zoning Board prior to constructing a home on the parcel. Finally, he advises that he represented litigants in a partition suit regarding land located in Lincoln. The matter was resolved by entry of a consent decree in Providence County Superior Court. Although not a party to the litigation, the Town of Lincoln has indicated that it may move to intervene or otherwise seek to nullify the partition judgment.

Under the Code of Ethics, the petitioner may not have an interest or engage in any employment or professional activity that is in substantial conflict with the proper discharge of his duties in the public interest. R.I. Gen. Law § 36-14-5(a). He may not use his public position or confidential information received through his position to obtain financial gain, other than that provided by law. R.I. Gen. Law § 36-14-5(d). Further, the Code prohibits him from accepting other employment which will impair his independence of judgment as to his official duties. R.I. Gen. Law § 36-14-5(b). The Code also prohibits him from representing himself or any other person before the agency of which he is a member or by which he is employed and for one year after leaving the public position. R.I. Gen. Law § 36-14-5(e). Finally, Commission Regulation 36-14-5008 prohibits the petitioner from acting as attorney or agent for compensation before agencies over which he exercises fiscal jurisdiction or control.

Section 36-14-5(e) of the Code of Ethics prohibits a public official or employee from “representing him or herself” before an agency of which he or she is a member. In cases of hardship the Ethics Commission may allow exceptions to this blanket prohibition. The Commission has granted such hardship exceptions in the past when a matter involved the “vested property rights” of an official or employee. As interpreted by the Commission, vested property rights have included pre-existing ownership interests in real property that were a) the official’s or employee’s principal residence, or b) the official’s or employee’s place of business.

Here, the property at issue is being purchased as the petitioner’s residence. While his interest in the property is not pre-existing, it involves an otherwise regular purchase of property for use as a principal residence. In such circumstances, the Commission finds that a hardship exception under Section 5(e) is warranted. See A.O. 98-113 (concluding that a Narragansett Zoning Board of Review member may seek relief for property he is purchasing as his principal residence from the Zoning Board). The Commission therefore concludes that the petitioner may seek relief before the Zoning Board pursuant to R.I. Gen Laws § 36-14-5(e).

As to the petitioner's second question, in the event the Town moves to intervene or nullify a consent decree entered in a partition suit in which the petitioner represented private clients, the Commission concludes that the petitioner may not represent the clients in objecting to the Town’s actions. The Code prohibits public officials and employees from a) having interests that are in substantial conflict with their duties and employment in the public interest, and b) having other employment that would impair their independence of judgment in the public interest. See R.I. Gen. Laws § 36-14-5(a) and (b). In Advisory Opinion 97-119, the Commission found that an East Greenwich Planning Board member could not represent homeowners in litigation challenging the Town Council’s authority to act.

Here, representing private clients in contesting the actions of the Town would place the petitioner, an appointed official in the Town, in an adversarial position against the Town. As an appointed Town official, the petitioner would be in an untenable position if he represents clients in his private legal practice whose interests are contrary to the interests of the Town. Absent a showing that it would be a substantial hardship to the clients to obtain other legal counsel at this stage of the proceedings, the petitioner cannot represent them in contesting any actions the Town may take with regard to the partition suit. Although appointed as a Co-Commissioner in the matter, the petitioner nonetheless is still acting on behalf of his clients. But for his participation as counsel in this matter, his name would not be on the deed. Given the information that the petitioner has provided at this time, he may not participate in an intervention action where he is representing interests adverse to the town.

Finally, as to the third inquiry, consistent with the provisions of Section 5(e) discussed above, the petitioner’s firm may not represent private clients before the Zoning Board and/or the Town Council within the one year period following the termination of their provision of services to those public bodies. In Advisory Opinion 99-23, the Commission found that the firm could appear before those bodies based on the fact that its duties were limited to part-time criminal prosecutions and did not involve providing counsel to those bodies. However, given that the firm’s duties expanded to involve the provision services to those entities, the Code prohibits the firm’s appearance before either body until October of 2000. The Commission concluded in Advisory Opinion 97-71, inter alia, that the New Shoreham Solicitor who sits as legal advisor once or twice a year in Foster when that Solicitor has a conflict of interest on a particular matter, cannot represent private clients before the Foster Zoning Board until one year following the severance of that relationship. See also A.O. 89-36 (advising that an attorney who was engaged by Barrington for a particular matter because the Town Solicitor had a conflict could not then appear before the Barrington municipal agencies that he represented for one year after his last appearance).

Finally, as discussed in Advisory Opinion 99-23, the firm may represent clients before the Lincoln Planning Board, Sewer Assessment Appeal Board and Probate Court, provided that the particular matter being heard is not related to a matter with which the firm is involved as the Assistant Town Solicitor.

Code Citations:

36-14-5(a)
36-14-5(b)
36-14-5(d)
36-14-5(e)
36-14-7(a)
36-14-5008

Related Advisory Opinions:

99-144
99-127
99-68
99-67
99-29
99-23
98-120
98-113
98-105
98-97
98-94
98-80
98-67
98-42
98-12
97-119
97-71
97-16
96-96
96-88
96-53
96-22
96-10
96-1
95-108
93-62
93-32
90-65
89-36
GCA 11

Related Case Law:

Thomas DiLuglio v. RIEC, 726 A.2d 1149 (R.I. 1999)

Keywords:

Acting as agent
Hardship exception
Litigation
Private employment
Revolving door