Advisory Opinion No. 2003-71

Re: Robert H. Humphrey, Esq.

QUESTION PRESENTED:

The petitioner, the Tiverton Municipal Court Judge, a municipal appointed position, requests an advisory opinion as to whether he and members of the law firm by which he is employed may represent private clients before the Tiverton Town Council, Zoning Board of Review and other municipal bodies, as well as represent clients charged with criminal offenses by the Tiverton Police Department.

RESPONSE:

It is the opinion of the Rhode Island Ethics Commission that the petitioner, the Tiverton Municipal Court Judge, and members of the law firm by which he is employed may represent private clients before the Tiverton Town Council, Zoning Board of Review and other municipal bodies, including individuals charged with criminal offenses by the Tiverton Police Department, provided that the representation 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 informs that the Tiverton Town Council appointed him to the position of Tiverton Municipal Court Judge on October 27, 2003. He advises that he and Amy E. Stratton, Esq. are employed as associates in his brother’s law firm, the Law Offices of Richard S. Humphrey. The petitioner inquires as to whether he, Ms. Stratton and/or his brother may represent clients before the Tiverton Town Council, Zoning Board of Review and other public bodies in the Town of Tiverton while he serves as the Municipal Court Judge. He also seeks guidance regarding their ability to represent clients charged with criminal offenses by the Tiverton Police Department. The petitioner states that he is cognizant of the fact that he may not represent clients before the Municipal Court and understands that neither his brother nor Ms. Stratton may appear before the Municipal Court in any matter in which he presides.

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 or any business by which he is employed or represents. See R.I. Gen. Laws § 36-14-7(a). He shall not engage in any employment that will impair his independence of judgment as to his public duties or require or induce him to disclose confidential information acquired in the course of his official duties. See R.I. Gen. Laws § 36-14-5(b). He also 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 of Ethics further 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). Section 5(f) provides that the petitioner must recuse from participation where a business associate appears before the state or municipal agency of which he is a member or by which he is employed. A “business associate” is as a person joined together with another person to achieve a common financial objective. R.I. Gen. Laws § 36-14-2(3). Finally, Commission Regulation 5002 requires a public official to recuse himself from participation and notify his board or agency in writing when his employer or the interests of his employer appear before his board or agency.

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. 2003-34 (Newport Municipal Court Judge may represent 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);

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). Cf. A.O. 98-42 (finding, inter alia, that Alternate Woonsocket Municipal Court Judge may not represent individuals charged with criminal violations by Woonsocket Police Department while also conducting bail hearings involving members of that Department).

Based upon prior advisory opinions and the relevant provisions of the Code of Ethics, the Commission concludes that the petitioner and members of his law firm may represent private clients before the Tiverton Town Council, Zoning Board of Review and other public bodies in the Town of Tiverton, provided that the representation does not relate to matters in which he is involved as a Municipal Court Judge or over which the Municipal Court has jurisdiction. The fact that the petitioner receives his appointment from the Town Council does not per se prohibit him from appearing before other agencies in the Town, absent some indication of the potential for improper influence. The prohibitions contained in subsections 5(a), (b) and (d) of the Code are not applicable simply because of the position to be held by the petitioner here. Rather, the existence of a prohibited conflict of interest requires a matter by matter analysis. Additionally, since the petitioner is not a member or employee of the various municipal bodies before which he wishes to appear, the prohibitions set forth in R.I. Gen. Laws § 36-14-5(e) do not apply.

In the event either the petitioner’s brother, Richard S. Humphrey, or Ms. Stratton should represent a client before the Municipal Court, the petitioner must recuse from participation consistent with the proscriptions set forth in subsections 5(a), 5(d) and Commission Regulation 5002. In reaching this determination, the Commission relies upon the petitioner’s representation that his relationship with the law firm is that of an associate and employee. Due to his private employment relationship with said firm, the petitioner is required to recuse from participating in the Municipal Court’s consideration of matters presented by members of the firm based upon the likelihood of a financial impact upon his private employer and family member. Notice of recusal should be filed with the Ethics Commission in accordance with R.I. Gen. Laws § 36-14-6.

The Commission notes that a “business associate” relationship potentially could exist between the petitioner and the Law Offices of Richard S. Humphrey, dependant upon the particulars of their financial relationship. The existence of such a relationship would additionally trigger the prohibition contained in section 5(f) of the Code, requiring the petitioner’s recusal where his business associate represents himself or any other person before the Municipal Court. However, given the petitioner’s private employment relationship with the firm and his familial relationship with its principal, the Commission need not undertake a business associate analysis to conclude that the petitioner may not participate in Municipal Court matters presented by Ms. Stratton and/or Richard S. Humphrey.

Code Citations:

36-14-2(3)

36-14-5(a)

36-14-5(b)

36-14-5(d)

36-14-5(e)

36-14-5(f)

36-14-6

36-14-7(a)

36-14-5002

Related Advisory Opinions:

2003-34

2001-18

99-67

99-19

98-80

98-67

98-42

96-53

96-3

96-1

Keywords:

Business associate

Private employment