Advisory Opinion No. 2005-9 Re: Barbara Barrow, Esq. QUESTION PRESENTED: The petitioner, a Middletown Town Councilor, a municipal elected position, who in her private employment is an associate attorney at a law firm, requests an advisory opinion as to what limits the Code of Ethics places upon her legal practice and that of her employer before the Town and its departments. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics would prohibit the petitioner, a Middletown Town Councilor, a municipal elected position, from representing clients before the Town Council and the Municipal and Probate Courts, or any board whose members are appointed by the Town Council. This prohibition would not extend to the other attorneys in the law firm based upon the petitioner’s representations that she will not share in fees generated by such practice and that she will recuse from participating in the appointment process for both the Municipal and Probate Court Judges for the Town. The petitioner is a member of the Middletown Town Council. In her private employment, she is an associate attorney with the law firm of Updegrove & Gontarz, Ltd. The petitioner is a salaried employee. She informs that she does receive a bonus for new clients that she brings into the law firm and personally represents. She further informs that she does receive a Christmas bonus at year-end, which she represents is based upon her salary and not the success of the firm for that given year. The petitioner states that she has in the past represented clients who are employees of the town on domestic relations issues. She advises that one partner of the firm represents the Middletown School Committee. She further advises that both partners routinely handle matters in the Municipal and Probate Courts. Additionally, the petitioner advises that one partner has brought a lawsuit against the town on behalf of a client. The petitioner is aware that she cannot represent any client before the Municipal or Probate Courts. She further represents that she will recuse from participating and voting on the appointment of the Judges for both the Municipal and Probate Courts, and that she will continue to recuse on any matters relating to the Municipal and Probate Court Judges. Furthermore, the petitioner informs that she will not share in any fees generated by any new or existing clients who have matters before the Municipal or Probate Courts. Given these representations, the petitioner seeks guidance from the Commission as to permissible interaction under the Code of Ethics among the petitioner, the partners of her law firm and the Town. Pursuant to the Code of Ethics, the petitioner may not participate in any matter in which she has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of her 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 she or any family member or business associate, or any business by which she is employed will derive a direct monetary gain or suffer a direct monetary loss by reason of her official activity. R.I. Gen. Laws § 36-14-7(a); Regulation 36-14-7001. She may not accept employment that will impair her independence of judgment as to her official duties. R.I. Gen. Laws § 36-14-5(b). The petitioner is prohibited from using her public position or confidential information received through her position to obtain financial gain, other than that provided by law, for herself, a business associate, employer or family member. R.I. Gen. Laws § 36-14-5(d). “Business associate” is defined as any individual or entity joined with a public official or employee “to achieve a common financial objective.” R.I. Gen. Laws § 36-14-2(3). Furthermore, the Code of Ethics prohibits public officials and employees from representing another person or entity before the state or municipal agency of which the official or employee is a member or by which he or she is employed. R.I. Gen. Laws § 36-14-5(e). The prohibition extends for a period of one (1) year after the official or employee has officially severed his or her position with said agency. R.I. Gen. Laws § 36-14-5(e)(4). The Commission previously has indicated that, for the purposes of applying § 36-14-5(e), “an individual appearing before a board, the members of which he or she appoints, is analogous to appearing before one’s own board.” E.g., A.O. 2001-74 (member of Cranston City Council prohibited by § 36-14-5(e)(2) from representing private social work client before Cranston Probate Court). In addition, R.I. Gen. Laws § 36-14-5(f) provides that no business associate of the petitioner shall represent himself or any other person before the state or municipal agency of which the petitioner is a member or by which she is employed unless he first advises the agency of the nature of his relationship with the petitioner and the petitioner recuses from participating in the agency’s consideration and disposition of the matter. Finally, Commission Regulation 36-14-5008(b) provides that no municipal elected official, who exercises fiscal or jurisdictional control over any municipal agency, board, commission or governmental entity, shall act, for compensation, as an agent or attorney before such entity for any person in any matter which the municipality has an interest or is a party. Reading these prohibitions of the Code together, it is the opinion of the Commission that the petitioner would be prohibited from sharing in any fees generated by her law firm’s representation of clients before the Municipal and Probate Courts, entities for which the Town Council appoints the presiding judges. Given the petitioner’s employer/business associate’s practice before both Courts, it is the further opinion of the Commission that the petitioner must recuse from participating in Council matters relating to the selection, retention or performance of the Municipal Court Judge and the Probate Court Judge. Here, the petitioner has made express representations that she does not share in the fees generated by her firm’s practice before the Municipal or Probate Courts, and that she will recuse from Town Council matters related to the Judges of both the Municipal and Probate Court. If the petitioner acts pursuant to these representations, she will be in compliance with the Code of Ethics when the other attorneys of the law firm by which she is employed appear before the Middletown Municipal and Probate Courts. With regard to the pending lawsuit against the Town of Middletown filed on behalf of a client by a partner in petitioner’s law firm, the petitioner is required to recuse from any Council discussion and voting on the litigation. Finally, the Code of Ethics does not prohibit a partner in the petitioner’s firm from representing the Middletown School Committee, provided the petitioner is not involved in selecting, reviewing or approving compensation for such representation. Any notices of recusal necessitated by this opinion must be filed with the Middletown Town Council and the Rhode Island Ethics Commission in accordance with R.I. Gen. Laws § 36-14-6. 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(e)(2) 36-14-5(f) 36-14-5008 36-14-6 36-14-7(a) 36-14-7001 Related Advisory Opinions: 2002-52 2001-74 2001-29 2001-14 99-23 98-120 97-40 96-57 Keywords: Appointing Authority Acting as Agent