Advisory Opinion No. 2007-43 Advisory Opinion No. 2007-43 Re: Benjamin M. Scungio, Esq. QUESTION PRESENTED The petitioner, a lawyer in private practice, whose law firm Brennan, Recupero, Cascione, Scungio & McAllister, L.L.P., serves as legal counsel to the North Providence School Committee (“the School Committee”), requests an advisory opinion as to whether his firm may continue to represent the School Committee in its contract negotiations with Local 1033 of the Laborers' International Union of North America, AFL-CIO (“Local 1033”), which represents teacher assistants, secretaries, and clerical staff in the North Providence School District, given that the petitioner’s wife was hired in the summer of 2007 as a teacher’s aide in North Providence and is a member of Local 1033. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the petitioner’s law firm, Brennan, Recupero, Cascione, Scungio & McAllister, L.L.P., may continue to serve as legal counsel to the North Providence School Committee (“the School Committee”) in its contract negotiations with Local 1033 of the Laborers' International Union of North America, AFL-CIO (“Local 1033”), which represents teacher assistants, secretaries, and clerical staff in the North Providence School District, though the petitioner’s wife was hired in the summer of 2007 as a teacher’s aide in North Providence, as the petitioner’s position as legal counsel to the School Committee does not subject him to the Code of Ethics. The petitioner represents that he is a partner with the law firm of Brennan, Recupero, Cascione, Scungio & McAllister, L.L.P. He further represents that his law firm has served as legal counsel to the North Providence School Committee for approximately fifteen years. During that time, the petitioner has been primarily responsible for representing both the School Committee and the North Providence School District in various legal matters, including negotiation of several of their labor contracts. The petitioner was neither elected nor appointed to these positions, but serves in both capacities as an independent contractor. The petitioner represents that, to the best of his knowledge, his firm does not serve as an Assistant City Solicitor to the Town of North Providence. During the summer of 2007, the petitioner’s wife was hired by the North Providence School Committee as a teacher’s aide and is currently a member of Local 1033. As a result, in order to avoid the appearance of impropriety, another partner in the petitioner’s law firm has begun to represent the School Committee as negotiator and legal counsel in all matters concerning the Local 1033 contract. The petitioner requests an advisory opinion as to whether his firm may continue to represent the School Committee in its contract negotiations with Local 1033, given that his wife is now a member of that union. The Commission has repeatedly opined that private attorneys performing legal work for public agencies are independent contractors and therefore not subject to the Code of Ethics, nor constrained by its conflict of interest provisions. See, e.g., A.O. 2004-19 (opining that the petitioner, legal counsel to the Planning Board and Zoning Board of Review for the Town of West Warwick, was not subject to the Code of Ethics in that capacity, as independent contractors of a state or municipal government are neither “employees” nor appointed officials subject to the provisions of the Code of Ethics); A.O. 2001-60 (finding that the petitioner, the District Solicitor for the Union Fire District of Wakefield and legal counsel to the State Labor Relations Board, was an independent contractor and not subject to the Code of Ethics); A.O. 2001-34 (finding that the petitioner, legal counsel to the Rhode Island Ethics Commission, was an independent contractor and not subject to the Code of Ethics); A.O. 99-18 (finding that the petitioner, a private attorney retained by the Town of Gloucester as a certified planner, was an independent contractor and not subject to the Code of Ethics); A.O. 98-85 (finding that the petitioner, legal counsel to the Cranston Housing Authority and legal counsel to the Narragansett Bay Commission, was an independent contractor and not subject to the Code of Ethics). See also, Gemma v. Rhode Island Ethics Commission, No. PC94-3404 (R.I. Super. Ct., Sept. 17, 1994) (concluding that an attorney contractually retained by the State was not an employee, but an independent contractor and, accordingly, was not subject to the revolving door provisions set forth in R.I. Gen. Laws § 36-14-5(o)). As the petitioner was not elected, nor appointed, to represent the School Committee, he, and other attorneys in his firm serving as legal counsel to the School Committee, are independent contractors. As such, they do not fall under the jurisdiction of the Ethics Commission and are not subject to the Code of Ethics. See R.I. Gen. Laws § 36-14-4. The petitioner is advised, however, that this opinion solely addresses whether the Code of Ethics prohibits him, or others in his firm acting in the capacity of independent contractors, from advising the School Committee and the School District in legal matters for which they have been contractually retained. This opinion does not, and cannot, address whether the Rules of Professional Conduct or any other statute, charter, ordinance, ruling or policy prohibit such conduct. The Ethics Commission does not exercise jurisdiction over those other provisions of law and, therefore, is not empowered to issue advisory opinions addressing or interpreting their effect. Code Citations : 36-14-4 36-14-5(o) Related Advisory Opinions : 2003-41 2001-60 2001-34 99-18 Related Advisory Opinions Cont. : 98-5 Related Case Law : Gemma v. Rhode Island Ethics Commission , No. PC94-3404 (R.I. Super. Ct., Sept. 17, 1994) Keywords : Code Jurisdiction