Advisory Opinion No. 2003-34

Re: James F. Hyman

QUESTION PRESENTED:

The petitioner, a City of Newport Municipal Court Judge, a municipal appointed position, requests an advisory opinion as to whether he may represent private clients before the Newport Zoning Board of Review given his status as a Municipal Court Judge within the same municipality.

RESPONSE:

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not bar the petitioner, a City of Newport Municipal Court Judge, a municipal appointed position, from representing private clients before the Newport Zoning Board of Review provided that the case is not related to a matter in which he is involved as Municipal Court Judge or over which the Municipal Court has jurisdiction.

The petitioner represents that on February 10, 2003 the Newport Zoning Board of Review (Zoning Board) commenced a hearing on the petition of William Jacklin and Janet Jacklin to obtain a zoning variance. The Jacklins had retained the petitioner, in his capacity as an attorney in the private practice of law, to represent their interests before the Zoning Board. The petitioner states that questions arose at the hearing as to whether he could appear before the Zoning Board on behalf of private clients given his status as a Municipal Court Judge.

The petitioner informs that the Municipal Court has jurisdiction to hear violations of the Newport City Code, including zoning and housing violations. However, the Municipal Court does not have appellate jurisdiction over the Zoning Board, as all such appeals are heard in Superior Court.

Under the Code of Ethics, the petitioner may not participate in any matter in which he has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of his duties and employment in the public interest. See R.I. Gen. Laws § 36-14-5(a). The petitioner will have an interest in substantial conflict with his official duties if he has a reason to believe or expect that a "direct monetary gain" or a "direct monetary loss" will accrue, by virtue of his official activity, to himself, a family member, a business associate, an employer, or any business which he represents. See R.I. Gen. Laws § 36-14-7(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 an agency of which he is a member or by which he is employed, and extends this prohibition for a period of one year after he leaves the agency. See R.I. Gen. Laws §§ 36-14-5(e)(1), (e)(2), and (e)(4).

The Commission has consistently opined that the Code of Ethics does not prohibit municipal judges from representing clients before other municipal bodies where they do not have jurisdiction over such matters as a municipal court judge. See A.O. 2001-18 (Westerly Probate Judge may assist Westerly Town Solicitor by representing Town’s interests in litigation matters, provided that case is not related to matter in which he is involved as Probate Court Judge or over which Probate Court has jurisdiction); A.O. 99-19 (Cranston Probate Court Judge may represent private clients before Cranston City Council, Planning Commission and Zoning Board of Review, provided that case is not related to matter in which he is involved as Probate Court Judge or over which Probate Court has jurisdiction); A.O. 98-80 (West Warwick Municipal Court Judge may represent private clients before West Warwick Probate Court, Planning Commission, Zoning Board and Town Council provided that case is not related to matter in which he is involved as Municipal Court Judge or over which Municipal Court has jurisdiction); and A.O. 96-96 (Smithfield Probate Court Judge may represent clients before Smithfield municipal agencies provided that case is not related to matter in which he is involved as Probate Judge).

Accordingly, it is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not bar the petitioner from representing clients before the Zoning Board. The petitioner may represent clients before municipal boards and commissions provided that his representation does not relate to matters in which he is involved as a Judge or over which the Municipal Court has concurrent or appellate jurisdiction. Furthermore, since the petitioner is not a member or employee of the municipal bodies before which he wishes to appear, the prohibitions set forth in R.I. Gen. Laws § 36-14-5(e) do not apply.

Code Citations:

36-14-5(a)

36-14-5(b)

36-14-5(d)

36-14-5(e)

36-14-7(a)

Related Advisory Opinions:

2001-18

99-19

98-80

96-96

96-53

96-1

Keywords:

Acting as agent

Private employment