Advisory Opinion No. 2003-41

Re: Albert A. DiFiore, Esq.

QUESTION PRESENTED:

The petitioner, legal counsel to the Planning Board for the Town of East Greenwich, requests an advisory opinion as to whether he may represent clients before other boards and commissions in the Town of East Greenwich prior to the expiration of one year from the termination of his position.

RESPONSE:

It is the opinion of the Rhode Island Ethics Commission that the petitioner, legal counsel to the Planning Board for the Town of East Greenwich, may represent clients before boards and commissions in the Town of East Greenwich immediately following the termination of his position.

The petitioner represents that he serves as legal counsel to the East Greenwich Planning Board. He informs that his service as legal counsel will terminate on March 31, 2003. He inquires as to whether the Code of Ethics requires him to wait one year before representing private clients before the Planning Board and other municipal boards and commissions in the Town of East Greenwich.

The Code of Ethics provides that no person subject to the Code of Ethics shall represent himself or any other person before any state or municipal agency of which he is a member or by which he is employed. See R.I. Gen. Laws § 36-14-5(e)(1), (2). This prohibition extends for a period of one year after an official or employee leaves public office or employment. See R.I. Gen. Laws §36-14-5(e)(4). Further, a public official is prohibited from acting as an agent or attorney for compensation before any board over which he exercises fiscal or jurisdictional control. See Commission Regulation 5008. Finally, the Code defines who is subject to the provision of the Code of Ethics as state and municipal elected officials, state and municipal appointed officials, and employees of state and local government, boards, commissions, and agencies. See R.I. Gen. Laws § 36-14-4.

The Commission consistently has concluded that under the very strict, but very clear, language of Section 5(e) public officials and employees may not appear before their own agency or board before the expiration of one year from their date of separation. Here, however, the petitioner is not a member of the East Greenwich Planning Board. Rather, he served as legal counsel to the Planning Board, an independent contracting position. Independent contractors of a state or municipal government are neither “employees” nor appointed officials subject to the provision of the Code of Ethics. Gemma v. Rhode Island Ethics Commission, (R.I. Sup. Ct., C.A. No. 94-3404 filed September 17, 1994).

In an analogous advisory opinion, A.O. 97-141, the Commission opined that the Code of Ethics did not bar a private attorney who was independently retained by the City Council, from representing private clients before the Zoning Board and other municipal boards. There, the Commission reasoned that the private attorney is an independent contractor and therefore is not subject to prohibitions contained in the Code of Ethics.

Given that the petitioner would not be appearing before a state or municipal agency of which he was a member or by which he was employed, his appearance before the Planning Board or other municipal bodies in the Town of East Greenwich would not trigger the prohibitions contained in Section 5(e). Furthermore, given that the petitioner is not a member of the Planning Board and does not exercise fiscal or jurisdictional control over any other board or commission, the prohibitions of Commission Regulation 5008 would not apply.

Accordingly, it is the opinion of the Rhode Island Ethics Commission that the petitioner may represent private clients before boards and commissions in the Town of East Greenwich immediately following the termination of his position as legal counsel to the East Greenwich Planning Board.

Finally, the petitioner is advised that this opinion solely addresses whether the Code of Ethics prohibits him from representing private clients before boards and commissions in the Town of East Greenwich. This opinion does not, and cannot, address whether the Rules of Professional Conduct or any other ordinances, statutes, rules or policies prohibit his representation of private clients before his former client, the East Greenwich Planning Board. The Ethics Commission does not exercise jurisdiction over those other provisions of law and, therefore, is not empowered to issue advisory opinions addressing or interpreting their effect.

Code Citations:

36-14-4

36-14-5(e)

36-14-5008

Related Advisory Opinions:

2001-60

97-141

97-16

Related Case Law:

Gemma v. R.I. Ethics Commission, (R.I. Sup. Ct., C.A. No. 94-3404, filed September 17, 1994)

Keywords:

Private employment