Advisory Opinion No. 2005-51 Re: K. Joseph Shekarchi, Esq. QUESTION PRESENTED: The petitioner, a potential candidate for the Warwick City Council, a municipal elected position, requests an advisory opinion as to whether, if elected, he may appear before the Warwick Planning and Zoning Boards in his private practice of law. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics prohibits the petitioner, a potential candidate for the Warwick City Council, from appearing before the Warwick Zoning Board in his private practice of law if he is elected. The Commission also opines, however, that the petitioner may appear before the Warwick Planning Board in his private practice of law if he is elected. The petitioner informs that he is an attorney who conducts a private law practice in Warwick. He represents that he is a solo practitioner who regularly appears before the Warwick Planning and Zoning Boards representing clients. He informs that he is considering running for the Warwick City Council in 2006 and requests an advisory opinion to determine whether he can serve as a City Councilor while continuing his private practice of law before the Warwick Planning and Zoning Boards. According to the petitioner, the members of the Zoning Board are nominated by the Mayor of Warwick and require confirmation by the City Council. He represents that these members require confirmation once every five years, and that, if elected, he will recuse himself from all confirmation votes for the membership of the Zoning Board. By contrast, the petitioner informs that the members of the Warwick Planning Board do not require confirmation or any other action by the City Council once appointed by the Mayor. He states that the only benefit the members of these Boards receive is a set monetary stipend, pursuant to City ordinance, which provides for a fixed annual compensation for each member of the Zoning and Planning Boards. He represents that this ordinance has been in place for approximately ten to fifteen years and that he is unaware of any proposed changes to it. He informs that, if elected to the City Council, he will recuse himself from any matters that come before the City Council related to this ordinance or either of these Boards. Pursuant to 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 in the public interest. R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if it is reasonably foreseeable that he or any family member or business associate, or any business by which he is employed, 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); Regulation 36-14-7001. Moreover, the Code of Ethics provides that the petitioner may not accept employment that will impair his independence of judgment as to his official duties. R.I. Gen. Laws § 36-14-5(b). The petitioner is also prohibited from using his public position or confidential information received through his position to obtain financial gain, other than that provided by law, for himself, a business associate, employer, or family member. R.I. Gen. Laws § 36-14-5(d). Based on the petitioner’s representations, Commission Regulation 36-14-5008(b) is pertinent and 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. In past advisory opinions, the Commission has determined that this regulation requires that a municipality have an interest or be a party in the proceeding; specifically, the Commission has determined that this requirement “is an essential element to the prohibitions contained in Regulation 5008(b).” A.O. 2001-74. Here, the petitioner informs that he will not handle cases in his private law practice before either the Zoning Board or Planning Board in which the City of Warwick has an identifiable interest or is a party. Accordingly, based upon the petitioner’s representations, Regulation 5008’s prohibitions do not limit the petitioner’s proposed conduct. Finally, the most pertinent section of the Code of Ethics to this situation is section 5(e), which prohibits public officials 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 is employed. The Commission has consistently held that section 5(e)’s prohibitions apply equally to a public official’s appearance before a subsidiary board made up of members appointed by the official’s own board. See A.O. 2004-33; 2001-29; 95-110. The Commission has reasoned that such an appearance “is analogous to appearing before one’s own board.” A.O. 2001-74. Absent an express finding of hardship by the Commission, this prohibition continues while the official remains in office, and for a period of one year thereafter. R.I. Gen. Laws § 36-14-5(e)(1) and (e)(4). In Advisory Opinion 2001-74, the Commission opined that a Cranston City Councilor, who had a private practice as a clinical social worker, was prohibited from appearing before a Cranston Probate Judge on behalf of a client in the course of her private practice. In so opining, the Commission relied upon the petitioner’s representation that the City Council was responsible for appointing the Probate Court Judge before whom she would appear. Likewise here, the City Council is involved in the appointment process for the Zoning Board because the City Council is required to confirm the Mayor’s appointments to the Zoning Board. Accordingly, the Commission opines that the petitioner may not appear before the Warwick Zoning Board in his private practice of law if he is elected to the City Council. Conversely, the petitioner represents that the City Council is not involved with the appointment process for the Planning Board. Furthermore, the petitioner states that he will recuse himself from any matters that come before the City Council regarding the Planning Board. The petitioner is advised that notice of recusal must be filed with the Town Council and the Ethics Commission in accordance with R.I. Gen. Laws § 36-14-6. Based upon these representations, the Commission opines that the petitioner may appear before the Warwick Planning Board in his private practice of law if he is elected to the City Council. The petitioner is advised that this opinion solely addresses whether the Code of Ethics prohibits him from appearing before the Warwick Planning and Zoning Boards in his private practice of law if he is elected. This opinion does not, and cannot, address whether the Warwick City Charter or ordinances of Warwick, or any other state or local statutes, rulings, or policies prohibit such conduct. Code Citations 36-14-5(a) 36-14-5(b) 36-14-5(d) 36-14-5(e)(1) 36-14-5(e)(4) 36-14-5008(b) 36-14-6 36-14-7(a) Regulation 36-14-7001 Related Advisory Opinions 2004-33 2001-74 2001-29 95-110 Keywords Appointing Authority Acting as Agent