Advisory Opinion No. 2001-34

Re: William J. Conley, Jr., Esq.

QUESTION PRESENTED

The petitioner, legal counsel to the Rhode Island Ethics Commission, requests an advisory opinion as to whether he may act as legal counsel to the Commission in a complaint matter involving John B. Harwood that is pending before the Commission given that 1) in his capacity as a private attorney he in the past has represented Mr. Harwood's law firm, has acted as an arbitrator in matters in which Mr. Harwood's law firm acted as counsel for one of the parties, and that he currently serves as a guardian ad litem in a suit in which that firm is a participant, 2) in his capacity as city solicitor for the City of East Providence he has been co-counsel with Mr. Harwood's law partner in a matter, and the same law partner has represented East Providence police officers through an indemnification agreement between the City and the officers' police union, and 3) he is the former law partner of George Caruolo, who was the majority leader in the Rhode Island House of Representatives for almost six years while Mr. Harwood served as the speaker of that body.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, legal counsel to the Rhode Island Ethics Commission, may act as legal counsel to the Commission in a complaint matter involving John B. Harwood that is pending before the Commission because a) as legal counsel to the Commission, as determined by the Commission in previous matters interpreting the Code of Ethics, the petitioner is neither an elected or appointed official, nor a state employee and, therefore, he is not subject to the Code of Ethics, and b) the petitioner's interaction and involvements with Mr. Harwood and his law firm, as set out above and in the petitioner's requesting letter, are either no longer pending or are too remote to implicate provisions of the Code of Ethics.

Pursuant to R.I. Gen. Laws § 36-14-9(2) the Ethics Commission has the authority to "retain the services of independent legal counsel…" The petitioner was retained in that capacity pursuant to a contract between himself and the Commission, the term of which is coterminous with the State's fiscal year. As an independent contractor the petitioner is not subject to the Code of Ethics and, therefore, while the Commission has the authority to require adherence to certain rules, regulations or policies, either contractually or otherwise, the statutory and regulatory provisions of the Code of Ethics do not apply to him.

In addition, the interaction and involvements between the petitioner and Mr. Harwood's law firm are either no longer pending, or are too remote to implicate provisions of the Code of Ethics. Assuming the Code were applicable here, with respect to the matters that are no longer pending, the petitioner a) is not a business associate of the Harwood law firm, if for no other reason than the matter(s) that might have created such a relationship are no longer extant, and b) has no financial interest in those non-pending matters. With respect to the matters that are still pending, a) the lawsuit involving the East Providence police officers does not create a business association between the petitioner, in his role as city solicitor, and the Harwood law firm, and he otherwise does not have a financial interest in the matter, and b) the matter in which he serves as a guardian ad litem also does not create a business association, nor does the petitioner have a financial interest that in any way involves or is dependent upon the Harwood law firm.

Finally, the petitioner's former business association with a former legislative colleague of the person named in a complaint, here Mr. Harwood, ceased to have implications for provisions of the Code of Ethics when that business association terminated.

Code Citations:

36-14-9(2)