Advisory Opinion No. 2003-49

Re: Paul A. Brule, Esq.

A. QUESTION PRESENTED

The petitioner, an attorney whose law firm serves as the Assistant Solicitor for the Town of Lincoln, a municipal appointed position, requests an advisory opinion regarding whether the Commission has jurisdiction to regulate the conduct of public officials and employees who are attorneys, and if so whether the petitioner is permitted to represent himself before the Lincoln Town Council, Zoning Board and Planning Board regarding the development of two parcels of real estate he owns in the Town.

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that it is within the Commission's jurisdiction to regulate the conduct of public officials and employees who are attorneys, and that the petitioner, an attorney whose law firm serves as the Assistant Solicitor for the Town of Lincoln, a municipal appointed position, is prohibited from representing himself before the Lincoln Town Council, Zoning Board and Planning Board regarding the development of two parcels of real estate he owns in the Town.

C. DISCUSSION

1. Facts

The petitioner is a member of the law firm of Walsh, Brule & Associates. He advises that since December 1998 the firm has served as the Lincoln Assistant Town Solicitor on a part-time basis. The petitioner represents that his duties primarily involve the prosecution of criminal matters in the Sixth Division District Court, but that he occasionally represents the Town on a limited number of Superior Court cases involving tax assessment appeals, zoning appeals and litigation against the Town Council and the Planning Board. Occasionally, at the request of the Town Solicitor, the petitioner performs other legal services. Neither the petitioner nor his firm act as general legal counsel to the Town Council, Zoning Board or Planning Board at their meetings.

The petitioner represents that he has ownership interests in two undeveloped parcels of real estate in the Town of Lincoln. The petitioner states that he is considering building a residence for himself and his family on one or the other of these lots, and selling the remaining lot, but that both lots require appropriate relief from the Town to make planning for such development possible. The petitioner states that he cannot determine which of the lots may be suitable for his residence and which to sell until he petitions and hears from the appropriate Town authorities. Additionally, the petitioner notes that, ultimately, neither lot may be desirable for construction of his residence, in which case he may sell both parcels.

The first parcel is approximately 13,000 square feet located on Central Street, owned by the petitioner and his wife since September 2000. In order to develop the Central Street parcel, the petitioner asserts that his appearance will be required before the Town Council for a road abandonment request, before the Zoning Board for a dimensional variance and for relief under the Mapped Street Ordinance, and before the Planning Board for ratification of a prior subdivision and for questioning regarding relief from the Mapped Street Ordinance.

The second parcel of land is approximately one acre located in the Lampercock area of Lincoln. The petitioner's ownership interest in this land is through his purchase of a taxpayer's right of redemption in July 2000. A tax title to the property is held by the Town of Lincoln, but there has never been any Town action to proceed with a foreclosure. This parcel contains a significant amount of wetlands. Development of this parcel would require a dimensional variance from the Lincoln Zoning Board.

D. ANALYSIS

1. Jurisdiction.

As an initial matter, the petitioner states that it is his understanding that the Commission has no jurisdiction to regulate the conduct of public officials and employees who are admitted to practice law in Rhode Island, but that such jurisdiction is vested solely in the Rhode Island Supreme Court. He notes that if his understanding is correct, then the Commission would have no ability to regulate his appearance before the Town boards discussed above. The petitioner seeks clarification of this issue.

The Commission recognizes the Rhode Island Supreme Court's "sole authority to determine who may, and who may not, engage in the practice of law in this state." In re Ferrey, 774 A.2d 62 (R.I. 2001)(per curiam). We also recognize that this authority is not enumerated or expressed in the Rhode Island Constitution, but has long been understood to be an inherent part of the judicial power.

The Commission's authority and jurisdiction over all public officials and employees, on the other hand, is clearly articulated in the Rhode Island Constitution. Article III, section 8 of the Constitution directs the Ethics Commission to "adopt a code of ethics," and this language has been previously interpreted by the Rhode Island Supreme Court as bestowing upon the Commission the authority to legislate substantive ethics laws. In re Advisory Opinion to the Governor, 612 A.2d 1, 8 (R.I. 1992). Following this constitutional grant of authority, section 8 goes on to describe the persons subject to the Code as follows: "All elected and appointed officials and employees of state and local government, of boards, commissions and agencies shall be subject to the code of ethics." R.I. Const., art. III, sec. 8 (emphasis added). Based upon this unambiguous grant of authority, the Commission has the power to enact substantive ethics laws that apply to all government officials and employees without regard to outside employment or regulation by other bodies.

The prohibitions contained in section 5(e) of the Code (relating to appearances before one's own agency) are not limited in application to any particular profession or occupation, but apply equally to accountants, engineers, social workers, contractors, realtors and attorneys, among others. Accordingly, the Commission is not regulating the practice of law, but is regulating conflicts of interest among government officials. The fact that attorneys are within the class of public officials and employees that are regulated by certain Code provisions does not amount to a violation of the principals of separation of powers.

The Rhode Island Supreme Court has defined a constitutional violation of separation of powers as:

an assumption by one branch of powers that are central or essential to the operation of a coordinate branch, provided also that the assumption disrupts the coordinate branch in the performance of its duties and is unnecessary to implement a legitimate policy of the Government.

612 A.2d at 14 (quoting State v. Jacques, 554 A.2d 193, 196 (R.I. 1989)(quoting Chadha v. Immigration and Naturalization Service, 634 F.2d 408, 425 (9th Cir. 1980))).

The Ethics Commission has attributes of each of the three branches of Rhode Island government. "[T]he ethics commission combines the functions of a legislative body in adopting and promulgating an ethical code, of an executive body in prosecuting violations of the code, and of a judicial body in adjudicating alleged violations." In re Advisory to the Governor (Separation of Powers), 732 A.2d 55, 61 (R.I. 1999). Because of this combination of powers, it is expected that the Commission's exercise of these powers will at least minimally infringe upon the traditional powers of each branch. Such de minimus infringements, when in furtherance of the Commission's clear mission, do not violate principals of separation of powers so as to make them unconstitutional.

For example, the Rhode Island Supreme Court previously found no violation of separation of powers notwithstanding a determination that the Commission's power to enact substantive ethics laws infringed upon the legislative authority of the General Assembly. In re Advisory Opinion to the Governor, 612 A.2d 1 (R.I. 1992). This decision was based upon the Court's finding that the Commission did not assume legislative powers that are "central or essential to the operation of the General Assembly." Id. at 19. The court made note that the Commission's legislative power was very limited, only applying to ethics. Further, the Court determined that the General Assembly was not divested of all power to legislate ethics, but only of the power to legislate ethics laws that are in conflict with those enacted by the Commission. Applying these factors, the Court held that the shifting of some legislative power from the General Assembly to the Ethics Commission was not unconstitutional. Id.

A year later, the Supreme Court made a similar ruling regarding the Commission's power to interfere with the authority of the Executive branch of government. In re Advisory to the Governor, 633 A.2d 664 (R.I. 1993). In that case, the Governor of Rhode Island challenged the Code's revolving door prohibitions (R.I. Gen. Laws §§ 36-14-5(n) and (o); Regulations 5006 and 5007), arguing that these sections unconstitutionally impinged on his executive appointment powers by severely limiting the pool of qualified candidates available for appointment. Id. at 674. The Supreme Court disagreed, finding that the Code's interference with the Governor's appointment power was "de minimus" in that there was no assumption of essential executive powers, no serious disruption in the Governor's performance of his duties, and that the revolving door provisions were designed to achieve a legitimate governmental purpose. Id. at 675-76.

Consistent with these cases involving the legislative and executive branches of government, the Ethics Commission's enforcement of section 5(e) against attorneys does not unconstitutionally usurp the power of the judiciary to regulate the practice of law. These provisions do not result in the assumption of an essential operation of the judiciary, nor do they seriously disrupt the judiciary in the performance of its duties. Furthermore, such enforcement by the Commission is clearly necessary to implement the legitimate policy of the government most clearly expressed in article III, section 7 of the Rhode Island Constitution:

The people of the State of Rhode Island believe that public officials and employees must adhere to the highest standards of ethical conduct, respect the public trust and the rights of all persons, be open accountable and responsive, avoid the appearance of impropriety, and not use their position for private gain or advantage.

R.I. Const., art. III, sec. 7.

For all of these reasons, it is the opinion of the Rhode Island Ethics Commission that the Rhode Island Code of Ethics in Government, including section 5(e), applies to all state and municipal employees, appointed officials and elected officials, regardless of whether such persons may be admitted to practice law in Rhode Island.

2. Application of the Code.

Having determined that the petitioner is subject to the provisions of the Code of Ethics, we will address whether and to what extent the Code applies to the facts represented by the petitioner. The petitioner has previously received advisory opinions from the Commission on similar issues. In A.O. 99-23, the petitioner's law firm served as the part-time, Lincoln Assistant Town Solicitor, with the sole duty of assisting the Lincoln Police Department in criminal prosecutions. The Commission opined that the Code of Ethics did not bar the petitioner's law firm from representing private clients before the Lincoln Town Council, Zoning Board, Planning Board, Sewer Assessment Appeal Board, Tax Assessment Appeal Board and Probate Court, provided that the particular matter being heard was not related to a matter for which the firm was involved as the Assistant Town Solicitor and absent some indication of the potential for improper influence.

In A.O. 2000-50, the petitioner advised that his firm's Assistant Solicitor duties had been somewhat expanded, so that at the Town Council's request the firm had provided services to the Zoning Board and the Council. These expanded duties terminated, and thereafter the firm's duties remained limited to part-time criminal prosecutions. Relevant to the instant matter, the petitioner asked 1) whether he could file an application with the Lincoln Zoning Board regarding property on which he intended to construct a home for himself; and 2) whether his firm could represent private clients before the Town Council and the Zoning Board. Given the fact that the petitioner's firm had provided services to the Zoning Board and Town Council as Assistant Solicitor, the Commission opined that section 5(e) prohibited the petitioner or members of his firm from appearing before those entities within the one-year period following the termination of the firm's provision of services to those bodies. However, the Commission granted the petitioner a "hardship exception" to appear before the Council and Zoning Board relative to the development of his own land as his personal residence.

As in these prior opinions, the new facts as represented by the petitioner must be applied to the relevant Code provisions. 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. R.I. Gen. Laws § 36-14-5(a). He may not use his public position or confidential information received through his position to obtain financial gain, other than that provided by law. R.I. Gen. Laws § 36-14-5(d). Further, the Code prohibits him from accepting other employment which will impair his independence of judgment as to his official duties. R.I. Gen. Laws § 36-14-5(b). The Code also prohibits him from representing himself or any other person before any state or municipal agency of which he is a member or by which he is employed. R.I. Gen. Laws § 36-14-5(e)(1).

Section 5(e) has repeatedly been cited by the Commission in advisory opinions as being applicable to municipal Solicitors relative to the boards and agencies that they represent. See A.O. 2001-30 (section 5(e) applies to Providence Senior Assistant Solicitor wishing to represent himself before Providence Historic District Commission (HDC), Zoning Board and other municipal agencies regarding repairs and modifications to be performed on his rental property); A.O. 2000-50 (section 5(e) applies to Lincoln Assistant Solicitor wishing to represent himself and private clients before Zoning Board and Town Council); A.O. 2000-45 (section 5(e) applies to former Jamestown Solicitor wishing to represent himself before Jamestown Zoning Board regarding application for property abutting his residence); A.O. 97-85 (section 5(e) applies to Central Falls Solicitor wishing to testify at Central Falls Liquor Board hearing); A.O. 97-71 (section 5(e) applies to New Shoreham Solicitor wishing to represent private clients before Zoning Board); A.O. 95-108 (section 5(e) prohibits Hopkinton Solicitor from representing private client before Town Council).

In this matter, although the petitioner's primary duties involve prosecuting criminal matters in District Court, he states that he also represents the Town in litigation filed against the Town and its departments, including the Town Council, Zoning Board and Planning Board. Accordingly, section 5(e)(1) prohibits the petitioner from representing himself before these entities he represents unless the Commission allows such appearance under a "hardship exception."

In cases of hardship, the Ethics Commission may allow exceptions to the prohibition of section 5(e)(1). No definition for “hardship” is found in the statute, nor has the Commission promulgated a definition. In considering questions of hardship on a case by case basis, the Commission has focused on factors such as whether the matter involves a vested property interest in the official's principal residence or place of business, pre-existing or recently acquired property rights or employment, or whether the matter involved a significant economic impact. The Commission has stated, however, that absent some extraordinary circumstances the hardship exception should not be extended to property interests acquired as part of a business venture. See A.O. 2002-41 (Exeter Zoning Board of Review member may not appear before Zoning Board to request special use permit to construct cellular communications tower on his property); A.O. 2002-8 (citing A.O. 97-146 (concluding that a North Kingstown Zoning Board of Review member may not appear before that Board, personally or through counsel, to seek approval for certain variances relating to a residential subdivision in North Kingstown for which he is the developer)).

The Commission has, however, occasionally applied the hardship exception in exceptional circumstances where a commercial venture is involved. In A.O. 2001-30, the Commission opined that the Assistant Solicitor for the City of Providence could seek relief before the Providence Historic District Commission (HDC), for which he served as legal counsel, to make repairs and modification to rental property that he had owned for several years. Otherwise, the Commission found, the rental properties would be permitted to fall into disrepair. In A.O. 98-94, the Commission applied to the hardship exception to allow a Portsmouth Zoning Board of Review member to appear before her board to seek variances allowing subdivision of a lot she intended to sell. See also A.O. 98-97 (finding that a Glocester Planning Board member may appear before the Planning Board regarding variance and special use permit requests relating to the use of his barn where the property is zoned for agricultural and residential use and he sought relief to sell produce from his property).

In this case, there are factors that both favor and disfavor the Commission's application of the hardship exception. On the one hand, the petitioner represents that he wishes to explore the feasibility of constructing a primary residence for his family on whichever lot appears most suitable for that purpose after obtaining necessary relief from the Town. As things stand, and if the petitioner is unable to seek relief from the Town, neither lot is suitable for that purpose. It is also important to note that the petitioner's appearance before these boards would not require his recusal, as is usually the case in hardship applications, because the petitioner is neither a member of these boards nor does he act as general legal counsel at their meetings. Rather, his relationship to these boards is as the attorney representing the Town in external litigation matters involving the boards. There is no indication that the issues surrounding the development of his property are related to a matter with which he is involved as the Assistant Town Solicitor.

On the other hand, factors frequently cited by the Commission tending to favor application of the hardship exception are not present. The petitioner's ownership interests in both lots did not preexist his firm's initial appointment as Assistant Town Solicitor. Furthermore, even if the petitioner is able to construct a primary residence on one of the lots, the remaining lot would be sold in a commercial transaction. Finally, it may come to pass that the petitioner determines that neither lot is suitable or desirable for the construction of a primary residence, in which case both are likely to be sold in commercial transactions.

E. CONCLUSION

Balancing the particular facts of this matter as represented by the petitioner, the Commission finds that application of the hardship exception to section 5(e)(1) is not warranted. Accordingly, the petitioner is prohibited from representing himself before the Lincoln Town Council, Zoning Board and Planning Board.

Citations:

R.I. Const., art. III, sec. 8

36-14-5(a)

36-14-5(b)

36-14-5(d)

36-14-5(e)

Related Advisory Opinions:

2003-34

2002-41

2002-8

2001-30

2000-50

2000-45

99-23

98-120

98-97

98-94

98-80

98-67

98-42

97-146

97-85

97-71

97-16

96-88

96-96

96-53

96-22

96-10

96-1

95-108

94-40

90-65

83-32

81-12

Keywords:

Acting as agent

Private employment

Hardship exception

Revolving door