Advisory Opinion No. 2000-69

Re: Margaret M. Lynch, Esq.

QUESTION PRESENTED

The petitioner, the Pawtucket City Solicitor, requests an advisory opinion on behalf of the Law Department as to whether the Law Department or notary publics within the Law Department may collect a fee before notarizing documents as provided in state statute.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Law Department qua Law Department and Law Department employees who are notary publics may collect notary fees that inure only to the benefit of the City. While notary fees are authorized by statute, the Code of Ethics does not permit a notary public to obtain fees in the course of his or her public employment that personally benefit him or her. See R.I. Gen Laws 36-14-5(a), 5(d). However, the Code of Ethics does not prohibit such notaries from charging fees for duties carried out in their public capacity if the City receives the benefit. Nor does it prohibit Law Department employees who are notaries from acting as such in their personal capacities on their own time and collecting fees for their own benefit. Those employees must also be cognizant that they may not solicit private business using their public office.

Under the Code of Ethics, public officials and employees may not engage in any business or professional activity that is in substantial conflict with the proper discharge of their duties or employment in the public interest. See R.I. Gen. Laws § 36-14-5(a). Further, the provisions of R.I. Gen. Laws § 36-14-5(d) prohibit public officials or employees from using their positions or confidential information received through their position to obtain financial gain for themselves, family members, business associates, employers, or for any business that they represent. Also, under R.I. Gen Laws § 42-30-13, notaries are authorized to collect fees for their services.

In Advisory Opinion 94-16, the Commission determined that pending legislation allowing Town Clerks to collect fees for performing marriages would be problematic if the services for which payment were to be received were performed on government time. Situations routinely would arise where public employees were adding to their personal income due to their government positions as well as using public resources (time) to perform such work. Additionally, the Commission stated that if the legislation were adopted, Town Clerks would have to be particularly vigilant that they not in any way use information obtained in the course of their government employment that would result in a direct economic benefit to themselves. See also A.O. 98-112 (Cranston Police Detective who provided self-defense training to his department could not sell additional training material to the department or receive additional compensation beyond his normal salary or overtime benefits for his services); A.O. 97-111 (Department of Human Services employee could not accept honoraria for a presentation since it was directly related to her public position and could not receive additional compensation); Cf D.R. 95-2 (state employees empowered to serve process in their official capacities may not serve process outside of normal working hours for compensation since such private employment would impair their independence of judgment and conflict with the proper discharge of their official duties).

Consistent with prior advisory opinions and the Code of Ethics, we conclude that the Code of Ethics requires that public officials and employees perform their responsibilities in the public interest at the level of compensation for which they were hired. Receiving additional compensation, notary fees or honoraria for work directly related to one's position may be construed as using one's position for financial gain. Consequently, those employees of the Law Department who are notaries may perform those functions in the course of their public duties only if they do not receive a personal financial benefit beyond their ordinary compensation for the services. Those employees also must be mindful that they may not solicit others or otherwise use their positions to obtain such business in their personal capacities. This opinion, however, does not preclude the collection of such fees provided that they inure entirely to the benefit of the City.

We do not believe that this opinion is inconsistent with the law in Rhode Island. The Ethics Commission is constrained to apply the Code of Ethics to all public officials and employees. Additionally, we believe that the goals and purposes of both the statute permitting notary publics to charge fees and of the Code of Ethics with regard to use of public office can be met. First, the provisions do not facially conflict and second, in application, notary publics may collect fees without causing a violation of the Code of Ethics. A notary public is not barred from accepting fees for services performed in their private capacity and on their own time, nor does the Code prohibit public officials from being notary publics. If, however, public officials and employees act as notary publics in the course of their public duties, then provisions of the Code of Ethics come into play as outlined above.

Code Citations:

36-14-5(a)

36-14-7(a)

36-14-5(d)

Related Advisory Opinions:

98-112

97-111

94-16

Declaratory Ruling 95-2

Keywords:

Compensation