Advisory Opinion No. 2007-9 Advisory Opinion No. 2007-9 Re: William A. DiLibero, Esq. QUESTION PRESENTED: The petitioner, the Town Manager for the Town of Hopkinton, a municipal appointed position, requests an advisory opinion as to whether he may simultaneously serve as the Town Manager and interim Municipal Court Judge until a permanent judge is appointed. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the petitioner, the Town Manager for the Town of Hopkinton, may simultaneously serve as the Town Manager and interim Municipal Court Judge until a permanent judge is appointed without running afoul of the Code of Ethics. The petitioner is the Town Manager for the Town of Hopkinton (“the Town”). He informs that he is also an attorney licensed to practice law in the State of Rhode Island. The petitioner advises that the Town Manager serves as the manager and Chief Administrative Officer for the Town. He further advises that the Town Manager’s position is a full-time position and entails supervision of all management level staff. The petitioner represents that the Town Council appoints and determines the salary for the Town Manager. The petitioner advises that although the Town Manager reviews the budget for all municipal agencies, including the Municipal Court, the Town Council approves the final budget for the Town. The petitioner informs that the Town is in the process of establishing a Municipal Court which will have jurisdiction over local traffic, building and zoning violations. According to the petitioner, the Municipal Court will be in session one time per month. The petitioner represents that until such time as a Municipal Court Judge is appointed by the Town Council, he would like to serve in that capacity while continuing to serve as the Town Manager. Lastly, the petitioner represents that he will not be compensated if allowed to serve as the interim Municipal Court Judge. Under the Code of Ethics, a public official may not participate in any matter in which he has an interest that is in substantial conflict with the proper discharge of his duties or employment in the public interest. See R.I. Gen. Laws § 36-14-5(a). An official 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 the public official’s activity, to the official, a family member, a business associate, an employer, or any business which the public official represents. See R.I. Gen. Laws § 36-14-7(a). Section 36-14-5(b) further provides that a public official may not accept other employment which would impair his independence of judgment or require him to disclose confidential information acquired in the course of his official duties. The Code of Ethics also prohibits the petitioner 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 family member, a business associate or employer. See R.I. Gen. Laws § 36-14-5(d). Additionally, Commission Regulation 36-14-5008(b) provides that no municipal appointed or 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 agency in any particular matter in which the municipality has an interest or is a party. This regulation provides for certain exceptions, such as appearing before a state court of public record or a matter requiring only ministerial acts. The aforementioned provisions of the Code of Ethics do not create an absolute bar to simultaneous service as Town Manager and as interim Municipal Court Judge. Rather, those provisions require a matter by matter evaluation and determination as to whether substantial conflicts of interest exist with respect to carrying out an official’s duties in the public interest. Since the petitioner’s duties as Town Manager and interim Municipal Court Judge are separate and distinct, there is no indication that serving in both capacities would impair the petitioner's independence of judgment as to his public responsibilities. Nor is there any indication that the simultaneous service, in and of itself, creates a substantial conflict with respect to carrying out his duties in the public interest. Moreover, since the petitioner does not have fiscal or jurisdictional control over the budget for the Municipal Court and is not receiving additional compensation for serving as the interim Municipal Court Judge, the prohibitions contained in Commission Regulation 36-14-5008(b) are not triggered. Absent some direct financial nexus between the petitioner’s actions as the Town Manager and his actions as interim Municipal Court Judge, no inherent conflict of interest would preclude such simultaneous service. The petitioner is cautioned, however, that if any particular matter should arise in either of these positions that could financially benefit him, then the petitioner must recuse from participation and vote on such matter pursuant to R.I. Gen. Laws § 34-14-6. Furthermore, as specific matters arise that raise potential conflicts of interest, the petitioner is urged to seek further and specific advice from the Ethics Commission. Finally, the petitioner is advised that this opinion solely addresses whether the Code of Ethics prohibits him from simultaneously holding these public positions. This opinion does not, and cannot, address whether the town charters or ordinances of the Town of Hopkinton, or any other statutes, policies or rules, such as the Rules of Professional Conduct, prohibit such simultaneous service. Code Citations: 36-14-5(a) 36-14-5(b) 36-14-5(d) 36-14-6 36-14-7(a) 36-14-5008(b) Related Advisory Opinions: 2004-10 97-40 Keywords: Dual public roles