Advisory Opinion No. 2002-22

Re: The Honorable J. Peter McGuirl

QUESTION PRESENTED

The petitioner, the Jamestown Probate Court Judge, a municipal appointed position, requests an advisory opinion as to whether he may preside over a probate matter involving the estate of a Jamestown Town Councilor’s deceased spouse, and particularly whether he may hear and decide a petition to remove the Town Councilor as Executor of the estate.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the petitioner, the Jamestown Probate Court Judge, a municipal appointed position, from presiding over a probate matter involving the estate of a Jamestown Town Councilor’s deceased spouse, nor from hearing and deciding a petition to remove the Town Councilor as Executor of the estate.

The petitioner states that he was appointed by the Jamestown Town Council to the position of Probate Court Judge. In 1999, pursuant to a Petition for Probate of the Estate of Shelley Arden Tyre, the petitioner appointed the decedent’s husband, David A. Swain, as Executor of the estate. Mr. Swain is an elected member of the Jamestown Town Council. On April 1, 2002, a Petition on behalf of the decedent’s father was filed seeking the removal of Mr. Swain as Executor. The petitioner has requested an opinion from the Ethics Commission as to whether the Code of Ethics prohibits him from presiding over this matter.

Section 5(a) of the Code of Ethics provides that a public official may not participate in matters in which he has an interest that is in substantial conflict with the proper discharge of his duties in the public interest. Such a substantial conflict is present if a public official has reason to believe or expect that he or she, a family member or business associate, will derive a direct monetary gain or suffer a direct monetary loss by reason of his or her official activity. See R.I. Gen. Laws §§ 36-14-5(a), 7(a). Similarly, § 36-14-5(d) of the Code prohibits a public official from using his public office to obtain financial gain, other than that provided by law, for himself, his family, his business associates or any business by which the person is employed or which the person represents.

Based upon the facts as represented, the petitioner does not appear to have an interest that is in substantial conflict with the discharge of his duties as a probate judge. Nor is there any indication that petitioner’s decisions as a probate judge in the matter will confer upon him any financial gain other than that provided by law. While the Commission has previously issued advisory opinions concerning the ability of a Town Councilor to appear before the Town’s Probate Court, in which case other sections of the Code such as section 5(e) are implicated, there are neither any specific Code provisions nor past advisory opinions that are directly applicable to these facts. Accordingly, and notwithstanding the fact that petitioner’s rulings in the case will impact a member of his appointing authority, the petitioner may continue to preside over the probate matter without violating the Code of Ethics.

Code Citations:

36-14-5(a)
36-14-5(d)
36-14-7(a)
36-14-5(e)

Keywords:

Appointing Authority