Advisory Opinion No. 2005-8 Re: Mark A. McSally, Esq. QUESTION PRESENTED: The petitioner, the Town Solicitor for the Town of Narragansett, a municipal appointed position, requests an advisory opinion regarding whether he may continue to serve as Town Solicitor while, in his private capacity as a practicing attorney, he represents a member of the Town Council. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the petitioner, the Town Solicitor for the Town of Narragansett, a municipal appointed position, may continue to serve as Town Solicitor while, in his private capacity as a practicing attorney, he represents a member of the Town Council. The petitioner states that he has been the Town Solicitor for the Town of Narragansett since 1988. He advises that the Town Council appoints the Town Solicitor, and reconsiders said appointment following each election. The petitioner represents that one of the current members of the Town Council is T. Brian Handrigan (Handrigan), who was first elected in 1996. According to the petitioner, he has been Handrigan's friend since approximately 1992 and, since that time, also has represented Handrigan and/or Handrigan's business interests as an attorney. It is the petitioner's understanding that Handrigan has not participated in discussion or voting relative to the petitioner's reappointment as Town Solicitor. Furthermore, the petitioner represents that if any matter relating to Handrigan or his business interests come before him as Town Solicitor, he will recuse from participation. Given these representations, the petitioner asks whether the Code of Ethics prohibits his service as the Narragansett Town Solicitor while he is providing private legal representation to a member of the Town Council. Pursuant to the Code of Ethics, a public official may not accept other employment which will either impair his independence of judgment as to his official duties or employment, or that will require or induce him to disclose confidential information acquired by him in the course of and by reason of his official duties. R.I. Gen. Laws § 36-14-5(b). The Code further provides that a public official is prohibited from in any way using his public office or confidential information received through his office to obtain financial gain, other than that provided by law, for himself, his family, his business associates or any business by which he is employed or which he represents. R.I. Gen. Laws § 36-14-5(d). Moreover, a person subject to the Code is prohibited from having any interest, direct or indirect, or from engaging in any employment or transaction that is in substantial conflict with the proper discharge of his duties in the public interest. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if it is reasonably foreseeable that the public official or any family member or business associate, or any business by which he is employed or represents will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. R.I. Gen. Laws § 36-14-7(a). In A.O. 2004-20, the Commission opined that the Code of Ethics did not prohibit the Municipal Court Judge for the Town of Johnston from providing private legal representation to the brother of a member of the Johnston Town Council (petitioner's appointing authority). This opinion was based on an absence of facts indicating any impairment of the Judge's official duties by reason of his private employment. Similarly, in the instant matter none of the aforementioned provisions of the Code of Ethics appear to be implicated by the facts as represented by the petitioner. The mere fact that the petitioner, in his private practice of law, represents a member of the Town Council (petitioner's appointing authority), does not lead to a conclusion or likelihood of impairment of the petitioner's independence of judgement as to his duties as the Town Solicitor. Likewise, these facts as represented do not indicate that the petitioner is using his public office or confidential information obtained through that office to obtain any type of financial gain for himself or his legal clients, including Handrigan. Finally, we can find no substantial conflict of interest between the petitioner's duties as a solicitor and his private representation of a Town Councilor. For these reasons, it is the opinion of the Commission that the petitioner may continue to serve as Town Solicitor while he, in his private capacity as an attorney, represents a member of the Town Council. Code Citations: 36-14-5(a) 36-14-5(b) 36-14-5(d) 36-14-7(a) Related Advisory Opinions: 2004-20 Keywords: Private Employment