Advisory Opinion No. 2005-18 Re: Michelle A. Buck, Esq. QUESTION PRESENTED: The petitioner, a Westerly 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 limitations the Code of Ethics places upon her when attorneys from her firm appear before the Westerly Probate Court, considering that she has recused and will continue to recuse from participating in the Town Council’s appointment of the Probate Court Judge. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the petitioner is in compliance with the Code of Ethics, although attorneys from her firm represent clients before the Westerly Probate Court, given the petitioner’s representations that she does not share in the fees generated by such practice and that she will recuse from participating in the Town Council’s appointment of the Probate Court Judge. The petitioner is a recently elected member of the Westerly Town Council. In her private employment, she is an associate attorney with the law firm of Lenihan Grady & Steele. The petitioner advises that she is a salaried employee. She does not receive any compensation for referring new clients to the law firm; however, she informs that she does receive a Christmas bonus at year-end which is equal to one paycheck. The petitioner advises that the law firm currently has cases pending before the Westerly Probate Court. The petitioner represents that she has recused from participating and voting on the appointment of the Probate Court Judge and that she will continue to recuse on any matters relating to the Probate Judge. The petitioner estimates that less than ten (<10%) percent of the firm’s practice is before the Westerly Probate Court. Given these representations, she seeks guidance from the Commission as to the permissible interaction under the Code of Ethics among herself, the members 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 or represents 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. 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)(2). 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 Probate Court, an entity for which the Town Council appoints the presiding judge. Given the petitioner’s employer/business associate’s practice before the Probate Court, 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 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 Probate Court, and that she will recuse from Town Council matters related to the Probate Court Judge. 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 Westerly Probate Court. Notice of recusal must be filed with both the Westerly 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)(2) 36-14-5(f) 36-14-5008 36-14-6 36-14-7(a) 36-14-7001 Related Advisory Opinions: 2001-74 2001-14 97-40 Keywords: Appointing Authority Recusal