Advisory Opinion No. 2001-18

Re: Leo F. Manfred II, Esq.

QUESTION PRESENTED

The petitioner, the Westerly Probate Judge, a municipal appointed position, requests an advisory opinion as to whether he may assist the Westerly Town Solicitor by representing the Town’s interests in non-probate related litigation matters.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not bar the petitioner, the Westerly Probate Judge, a municipal appointed position, from assisting the Westerly Town Solicitor by representing the Town’s interests in litigation matters, provided that the case is not related to a matter in which he is involved as Probate Court Judge or over which the Probate Court has jurisdiction.

The petitioner advises that in his private law practice he wishes to assist the Westerly Town Solicitor in handling a recent influx of Town litigation by representing the Town’s interests in non-probate litigation matters while serving as Probate Court Judge within the same municipality. 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. See R.I. Gen. Laws §§ 36-14-5(a), 7(a). The Code further provides that he shall not engage in any employment that will impair his independence of judgment as to his public duties. See R.I. Gen. Laws § 36-14-5(b). He is prohibited from using his public position or confidential information received through his position to obtain financial gain, other than that provided by law. See R.I. Gen. Laws § 36-14-5(d). The Code also prohibits the petitioner from representing himself or any other person before the agency of which he is a member or by which he is employed and extends the prohibition for one year after he leaves the agency. See R.I. Gen. Laws §§ 36-14-5(e)(1), 5(e)(2), and 5(e)(4). Finally, Section 5(f) provides that the petitioner should recuse from participation where a business associate appears before the state or municipal agency of which he is a member. The Code of Ethics defines “business associate” as a person joined together with another person to achieve a common financial objective. See R.I. Gen. Laws § 36-14-2(3).

The Commission concludes that Code of Ethics does not bar the petitioner from representing the Town of Westerly’s interests in litigation matters before various forums, provided his representation does not relate to matters in which he is involved as a Judge or over which the Probate Court has jurisdiction. The fact that the petitioner receives his appointment from the Town Council does not per se prohibit him from appearing before other agencies in the Town absent some indication of the potential for improper influence. The prohibitions found in subsections 5(a), (b) and (d) of the Code are not applicable simply because of the dual positions to be held by the petitioner here. Rather, the existence of a prohibited conflict of interest requires a matter by matter analysis. Additionally, since the petitioner is not a member or employee of state and or municipal bodies before which he wishes to appear, the prohibitions set forth in R.I. Gen. Laws § 36-14-5(e) do not apply. However, should the Town Solicitor appear before the Probate Court, the petitioner must recuse from participation in matters involving his business associate pursuant to Section 5(f). Notice of recusal should be filed both with the Ethics Commission and the Town of Westerly in accordance with R.I. Gen. Laws § 36-14-6.

Code Citations:

36-14-2(3)

36-14-5(a)

36-14-5(b)

36-15-5(d)

36-14-5(e)

36-14-5(f)

36-14-6

36-14-7(a)

Related Advisory Opinions:

2000-50

2000-1

99-67

99-23

99-19

98-80

98-42

97-16

96-103

96-88

96-96

96-53

96-10

96-1

90-65

86-69

Keywords:

Acting as agent

Business associate

Litigation

Private employment