Advisory Opinion No. 2000-57

Re: Steve Merolla

QUESTION PRESENTED

The petitioner, a Warwick City Councilor, a municipal elected position, requests an advisory opinion as to whether he may participate in the appointment of a municipal court judge given that the candidate serves as an arbitrator in cases involving his firm’s clients.

SUMMARY

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Warwick City Councilor, a municipal elected position, should recuse from participation in any discussion or vote on the appointment of a municipal court judge given that the candidate handles arbitration work for his law firm’s clients from time to time. The petitioner’s responsibilities to his firm and its clients as an attorney impair his independence of judgment as to the appointment of the candidate. See R.I. Gen. Laws 36-14-5(b). Not only does the municipal court position carry with it financial remuneration, thereby benefiting the appointee, but also the petitioner’s clients necessarily will be impacted by the candidate’s decision in the arbitration. Additionally, the candidate is receiving compensation in the pending arbitration by virtue of the petitioner’s firm’s selection of the candidate as an arbitrator. Therefore, the petitioner may not in his public capacity participate in the appointment of an arbitrator selected by his law firm to the position of municipal court judge.

The Code of Ethics provides that the petitioner may not have other employment that will impair his independence of judgment as to his official duties or induce him to disclose confidential information acquired by him due to his position as a City Councilor. See R.I. Gen Laws 36-14-5(b). While the provision may prohibit the acceptance of private employment, it more often involves the public official stepping back from making public decisions that are related to his or her private employment or vice versa. Additionally, this provision of the Code of Ethics does not require that the public official have reason to expect a financial benefit, but only that his or her independence of judgment will be impaired by reasons of his or her private employment.

The petitioner advises that his law firm represents clients in personal injury actions. In a pending matter, the firm is representing an insurance company. The parties have agreed to enter into binding arbitration. He advises that his is not court arbitration. The petitioner states that each party selects an arbitrator and then agree on a third arbitrator. Both party pays costs to the arbitrator. The petitioner’s law firm may advise clients about the selection of an arbitrator. Finally, the petitioner states that pending before him now and in the fall is an appointment of a Municipal Court Judge. The candidate for the position is the agreed upon arbitrator for the pending case and has also been selected by the petitioner’s firm in the past.

In two related matters, the Commission concluded that public officials who are arbitrators should not participate in other public matters concerning parties to arbitration. See A.O. 90-72 (concluding that a RIDOT employee may not be involved in projects concerning construction companies that are parties to an arbitration where he serves as arbitrator) and A.O. 89-105 (finding that RIDOT Chief/Construction Operations may serve as an arbitrator in connection with construction matters provided it is limited to the representation of other entities over which he has no jurisdiction or involvement as an employee of RIDOT).

Additionally, the Commission has issued numerous decisions discussing the necessity of recusal where it is reasonably foreseeable that a public official or employee’s public decision or actions would impact his/her private employment, or impair his/her independence of judgment, or induce disclosure of confidential information. See A.O. 98-42 (advising a Woonsocket Probate Judge may not at the same time conduct bail hearings and then represent criminal defendants charged by the Woonsocket Police Department); A.O. 95-17 (concluding that a Warwick City Councilor should recuse on the liquor license application of the spouse of client in a marital dispute); A.O. 98-129 (advising that Batterers’ Intervention Program Standards Oversight Committee members may participate in the certification of batterers’ intervention programs although they may refer offenders to programs provided that those members have no other connection to the programs). See also A.O. 96-72 (finding that a Probation Officer could accept employment as a counselor provided that he did not participate in activities at the Kent House concerning his Parole/Probation clients and recused himself in his role as Parole/Probation Officer involving Kent House clients); A.O. 97-93 (concluding that a Health Department Non-Disciplinary Alternative Program Advisory Panel member should not participate in matters where a nurse had selected the Petitioner's private employer as her case manager nor serve as a case manager in her private employment for nurses in this program); and A.O. 98-53 (advising that an East Greenwich Town Councilor who is also a realtor and real estate broker may participate in the consideration of a zoning change for a developer where she and a private client met with the developer about the proposed unit, but where there are no active negotiations for the particular property at issue).

In this matter, the petitioner is in a position to appoint a candidate as municipal court judge who is also an arbitrator selected by his law firm in a pending matter. The petitioner’s responsibilities to his firm and its clients as an attorney and advocate impair his ability to discern the appropriate course of conduct in this matter where his client’s matters could be affected by his participation in the appointment. Not only does the municipal court position carry with it financial remuneration, thereby potentially benefiting the candidate, but also the candidate’s decision in the arbitration will necessarily impact the petitioner’s clients. Additionally, the candidate is receiving compensation in the pending arbitration by virtue of the petitioner’s firm’s selection of the candidate as an arbitrator. Therefore, the petitioner may not in his public capacity participate in the appointment of an arbitrator selected by his law firm to the position of municipal court judge since his outside employment impairs his independence of judgment as to the appointment of the candidate in this matter.

Code Citations:

36-14-5(b)

Related Advisory Opinions:

98-129
98-53
98-42
97-93
96-72
90-72
89-105

Keywords:

Client’s Interest
Litigation
Private Employment