Advisory Opinion No. 2005-29 Re: The Honorable William L. Berstein QUESTION PRESENTED: The petitioner, a Town of Glocester Probate Court Judge, a municipal appointed position, requests an advisory opinion as to whether he may represent private clients before the Glocester Zoning Board given his status as a Probate Court Judge within the same municipality. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not bar the petitioner, a Town of Glocester Probate Court Judge, a municipal appointed position, from representing private clients before the Glocester Zoning Board provided that the case is not related to a matter in which he is involved as Probate Court Judge or over which the Probate Court has jurisdiction. The petitioner is a Probate Judge in the Town of Glocester. In his private capacity he is a practicing attorney. The petitioner advises that he has a client who wishes to retain him to represent her in a zoning matter in the Town of Glocester before the Zoning Board. The petitioner informs that he has represented this client for many years. The petitioner represents that the zoning matter is not related to any matters pending in the Probate Court nor would the Probate Court have jurisdiction over it. Given these representations, he seeks guidance from the Commission as to the permissible interaction under the Code of Ethics between the Probate Court and the other municipal agencies in the Town of Glocester. 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, an employer, or any business which he represents. See R.I. Gen. Laws § 36-14-7(a). The Code further provides that he shall not engage in any employment that will impair his independence of judgment as to his public duties. See R.I. Gen. Laws § 36-14-5(b). He 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 also 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). 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 in their judicial role. See A.O. 2003-34 (City of 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 a Municipal Court Judge or over which the Municipal Court has jurisdiction.) See also 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). Accordingly, it is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not bar the petitioner from representing clients before the Zoning Board. However, the petitioner is cautioned that this opinion applies only to appearances before the Zoning Board. If the petitioner wishes to appear before any other board or municipal agency within the Town of Glocester, he should seek further guidance from the Commission. Furthermore, since the petitioner is not a member or employee of the municipal bodies before which he wishes to appear, the prohibitions set forth in R.I. Gen. Laws § 36-14-5(e) do not apply. Code Citations: 36-14-5(a) 36-14-5(b) 36-14-5(d) 36-14-5(e) 36-14-7(a) Related Advisory Opinions: 2003-34 2001-18 99-19 Keywords: Acting as agent Private employment