Advisory Opinion No. 2000-53

Re: David V. Igliozzi, Esq.

QUESTION PRESENTED

The petitioner, a legislator serving as a State Senator, a state elected position, requests an advisory opinion as to whether he may represent private clients before the State Housing Appeals Board given (1) that he is a former member of the Board and (2) his position as a State Senator.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the petitioner, a legislator serving as a State Senator, a state elected position, given that he does not exercise fiscal or jurisdictional control over the State Housing Appeals Board (“Board”). See R.I. Gen. Laws § 36-14-5008. Additonally, his prior service on the Board that terminated more than one year ago does not preclude the petitioner from appearing before the Board.

The petitioner states that in his private practice of law, he represents private clients who have the right to appeal a local zoning board decision to the State Housing Appeals Board. The petitioner advises that he previously served on the Board due to his appointment by the Speaker to a position to be held by a city councilor. The petitioner resigned his position as a city councilor and did not attend any more meetings of the Board in 1997. Additionally, his term, if not voided by virtue of his resignation as city councilor, also expired in 1998. The petitioner is now serving as a State Senator, elected in 1998 and represents that he has not participated in any legislation regarding the State Housing Appeals Board. The State Housing Appeals Board was created by the General Assembly pursuant to R.I. Gen. Laws §45-53-7. Of the nine members of the Board, two members are appointed by the Senate Majority Leader, two members are appointed by the Speaker of the House, two are appointed by the Governor, one member is appointed by the Courts, and two members serve by virtue of their position. The Board, itself, does not have any funding as the members are not paid and the only other costs are for stenographic services that are borne by the parties.

The Code of Ethics provides that the petitioner should not represent himself or any other person before any state or municipal agency of which he is a member or by which he is employed. R.I. Gen. Laws § 36-14-5(e)(1),(2). Section 36-14-5(e)(4) extends these prohibitions for a period of one year after the petitioner has officially severed his position with the agency. Additionally, Commission Regulation 5008, states that the petitioner is prohibited from acting as an attorney or agent for compensation before agencies over whom he has fiscal and/or jurisdictional control. Jurisdictional control includes, but is not limited to, appointing authority, appellate review, or other substantive control in connection with the operation of the applicable state or municipal agency.

Here, the petitioner’s term ended more than one year ago. Therefore, the revolving door provision of Section 5(e) of the Code is not applicable to the petitioner’s circumstance. Additionally, Commission Regulation 5008 is not applicable to the petitioner since he does not have appointing authority and he has not participated in any legislation regarding the State Housing Appeals Board. Additionally, he states that he will recuse on matters concerning that Board. Therefore, absent some additional factor, his representation of a private client before the State Housing Appeals Board does not otherwise implicate any provisions of the Code of Ethics. During the course of the petitioner’s representation of his client, however, if any matters involving the Board and/or its funding appear before him in his official capacity, he must recuse from participation and/or vote on such issues. Notice of recusal should be filed both with the Ethics Commission and the legislature in accordance with R.I. Gen. Law § 36-14-6.

Code Citations:

36-14-5(e)

36-14-5008

Related Advisory Opinions:

2000-8

99-4

98-126

97-40

95-30

97-3

92-55

Keywords:

Acting as Agent

Revolving Door