Advisory Opinion No. 2007-12 Advisory Opinion No. 2007-12 Re: Angel Taveras, Esq. QUESTION PRESENTED: The petitioner, a judicial candidate for the City of Providence Housing Court, a municipal appointed position, requests an advisory opinion as to whether the Code of Ethics would prohibit (1) his continued political activity for various federal, state and municipal candidates; and (2) his continued private practice of law before various agencies within the City of Providence, if appointed to the Providence Housing Court. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that that the petitioner, a judicial candidate for the City of Providence Housing Court, a municipal appointed position, may continue his political activity for various federal, state and municipal candidates, and may also continue his private practice of law before various agencies within the City of Providence, if appointed to the Providence Housing Court. The petitioner informs that he is a judicial candidate for the City of Providence Housing Court (“the Housing Court”). He advises that the Housing Court judge is appointed to a three (3) year term by the Mayor of Providence with confirmation by the Providence City Council (“the City Council”). The petitioner advises that the Housing Court’s jurisdiction includes hearing all actions involving violations of state and local housing laws and ordinances, the Rhode Island State Building Code, and the Providence Zoning Ordinance. The petitioner further advises that actions are brought by the Code Enforcement Division of the Department of Inspection and Standards and prosecuted by the Providence City Solicitor’s office. Furthermore, the petitioner informs that the actions heard by the Housing Court relate only to residential housing in the City of Providence. The petitioner advises that he is presently involved in the Presidential Campaign of former Senator John Edwards. The petitioner states that in 2004, he was Senator Edward’s representative in Rhode Island and expects to serve in the same capacity in 2008. In addition, the petitioner informs that he has previously contributed to state-wide political candidates as well as candidates for the Providence City Council and expects to continue to politically support those candidates. The petitioner states that he in his private employment he is a practicing attorney. He informs that his practice involves representing Lifespan, a healthcare institution, with zoning issues in the City of Providence. Specifically, the petitioner advises that he has represented Lifespan before the City Plan Commission, the Providence Zoning Board of Review, the Department of Inspection and Standards and the City Council. The petitioner states that neither the City Plan Commission nor the Providence Zoning Board of Review is subject to the appellate jurisdiction of the Housing Court. The petitioner advises that his representation of Lifespan before the Department of Inspection and Standards has been limited to building permit applications and that he has never interacted with the Code Enforcement Division of that Department. The petitioner further represents that the issues involving Lifespan are not related to residential housing. However, the petitioner informs that an affiliate of Lifespan, The Miriam Hospital, which the petitioner also represents, does own three (3) residential houses and that if those residences ever came before the Housing Court, he would recuse himself. Given these representations, the petitioner inquires whether he may continue with the aforementioned political activity and legal representation of clients, if appointed to the Housing Court. Under the Code of Ethics, the petitioner may not have any interest which is in substantial conflict with the proper discharge of his duties or employment in the public interest. 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). Additionally, he may not accept other employment which will either impair his independence of judgment as to his official duties or require him, or induce him, to disclose confidential information acquired by him in the course of his official duties. R.I. Gen. Laws § 36-14-5(b). 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). 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. With regard to the petitioner’s first inquiry, the Code of Ethics does not prohibit him from being involved in the aforementioned political activity including making political contributions. In an analogous advisory opinion, A.O. 2005-42, the Commission opined that a judge of the City of Providence Municipal Court could appear in a family member’s campaign advertisement since his public duties did not involve state-wide elections and public resources would not be used in the pursuit of the described political activity. Here, since the petitioner represents that he will not use public resources in pursuit of the aforementioned political activity, he would not run afoul of the Code. With regard to the petitioner’s second inquiry, the Code does not prohibit him from representing clients before other municipal agencies, provided that he does not represent clients before the Housing Court. Previously, the Commission has opined that appointed municipal judges, who are also practicing attorneys, could represent clients within the same municipality provided that they do not appear before their own agency or an agency over which his agency has jurisdiction. See A.O. 2005-29 (opining that the Town of Glocester Probate Judge could represent 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); A.O. 2003-71 (opining that the Tiverton Municipal Court Judge may represent private clients before the Tiverton Town Council, Zoning Board of Review and other municipal bodies, including individuals charged with criminal offenses by the Tiverton Police Department, provided that the representation is not related to a matter in which he is involved as Municipal Court Judge or over which the Municipal Court has jurisdiction). The facts represented in the instant matter are consistent with those made in these prior opinions. Provided that the petitioner does not represent clients before the Housing Court, he may continue to represent clients before other municipal agencies in the City of Providence. Furthermore, the petitioner's public duties do not involve state-wide elections and he represents that no public time or resources will be used in the pursuit of the described political activity. Accordingly, it is the opinion of the Commission that the petitioner may continue his political activity for various federal, state and municipal candidates, and may also continue his private practice of law before various agencies within the City of Providence, if appointed to the Providence Housing Court, provided that he does not use public resources in pursuit of his political activity and he does not represent clients before the Housing Court. This opinion does not, and cannot, address whether any municipal charter or ordinance, or any statute, agency regulation, ruling, policy, Rules of Professional Conduct or Canon of Judicial Conduct prohibits such activity. Code Citations : 36-14-5(a) 36-14-5(b) 36-14-5008(b) 36-14-6 36-14-7(a) Related Advisory Opinions : 2005-42 2005-29 2003-21 2002-34 98-109 Keywords : Political activity