Advisory Opinion No. 2008-27 Rhode Island Ethics Commission Advisory Opinion No. 2008-27 Re: Robert A. Peretti, Esq. QUESTION PRESENTED The petitioner, the Municipal Court Prosecutor for the Town of North Providence, a municipal appointed position, requests an advisory opinion concerning whether, in his private law practice, he may represent clients before the North Providence Town Council and other town boards, commissions and departments, other than the Municipal Court. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the petitioner, the Municipal Court Prosecutor for the Town of North Providence, a municipal appointed position, may represent clients before the North Providence Town Council and other town boards, commissions and departments, other than the Municipal Court and the Zoning Board. The petitioner states that in June of 2007 he was appointed by the Mayor of North Providence to the position of Municipal Court Prosecutor, and that this appointment did not require confirmation by the North Providence Town Council. The petitioner states that his duties involve prosecuting traffic offenses, animal violations and zoning enforcement matters that come before the Municipal Court. In his private capacity, the petitioner is an attorney and principal of the law firm, Liberati & Peretti, LLP. Given his public position and duties as the Municipal Court Prosecutor for the Town of North Providence, the petitioner asks whether the Code of Ethics prohibits him from representing private clients before the North Providence Town Council, Zoning Board, Planning Board, School Committee and/or other town boards, commissions and departments, other than the Municipal Court. If prohibited from such representation, he asks whether this prohibition would similarly apply to his law partner and other attorneys associated with his law firm. The Code of Ethics prohibits a public official 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 severs his position with the agency. See R.I. Gen. Laws §§ 36-14-5(e)(1), (e)(2), and (e)(4). The Code further provides that a public official shall not engage in any employment that will impair his independence of judgment as to his public duties, or require or induce him to disclose confidential information acquired in the course of his official duties. See R.I. Gen. Laws § 36-14-5(b). He also is prohibited from using his public position or confidential information received through his position to obtain financial gain for himself, his family, his employer or his business associates. See R.I. Gen. Laws § 36-14-5(d). Finally, section 5(f) of the Code requires a public official to recuse from participation in his agency's consideration or disposition of any matter for which the official's business associate appears to represent any person's interest. See R.I. Gen. Laws § 36-14-5(f). The underlying facts of this advisory opinion request are similar to those represented in a prior advisory opinion, A.O. 99-23. There, the Town of Lincoln Assistant Solicitor, whose duties solely involved assisting the Lincoln police department with criminal prosecutions, asked whether he and the other members of his law firm could represent private clients before various boards and agencies in the town such as the Zoning Board, the Planning Board, the Tax Appeal Board, the Probate Court and the Town Council. Relying on the petitioner's representations that his duties as Assistant Solicitor did not include acting on behalf of these municipal entities, and that he did not otherwise exercise any control or authority over them, the Commission opined that the Code of Ethics did not prohibit his representation of private clients before the entities. Cf. A.O. 2003-49 (Town of Lincoln Assistant Solicitor whose duties expanded from solely assisting police department with criminal prosecutions, to representing the Town Council, Zoning Board and Planning Board in litigation, is prohibited by section 5(e) from representing himself before these entities). The Commission has also issued several analogous advisory opinions sought by municipal court judges, and has consistently opined that the Code of Ethics does not prohibit such municipal judges from representing clients before other municipal bodies over which they do not have jurisdiction as a municipal court judge. See A.O. 2003-73 (Tiverton Municipal Court judge may represent private clients before the Tiverton Town Council, Zoning Board and other municipal bodies other than the Municipal Court, provided that such representation is unrelated to a matter in which he is involved as Municipal Court Judge, or over which the Municipal Court has jurisdiction); A.O. 2003-34 (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 Municipal Court Judge or over which the Municipal 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); A.O. 98-80 (West Warwick Municipal Court Judge may represent private clients before West Warwick Probate Court, Planning Commission, Zoning Board and Town Council provided that case is not related to matter in which he is involved as Municipal Court Judge or over which Municipal Court has jurisdiction); and A.O. 96-96 (Smithfield Probate Court Judge may represent clients before Smithfield municipal agencies provided that the case is not related to a matter in which he is involved as Probate Judge). Cf. A.O. 98-42 (finding, inter alia, that Alternate Woonsocket Municipal Court Judge may not represent individuals charged with criminal violations by Woonsocket Police Department while also conducting bail hearings involving members of that Department). Consistent with these prior advisory opinions, and in light of the aforementioned provisions of the Code of Ethics, although the petitioner and the other attorneys in his firm may not represent clients before the North Providence Municipal Court, with one other exception they are not prohibited by the Code of Ethics from representing private clients before the other various boards and agencies of the Town of North Providence such as the Town Council, Planning Board, School Committee and/or other Town boards, commissions and departments before which he does not practice as a Municipal Court Prosecutor, and over which he exercises no authority or control. However, in addition to the more readily apparent conflict that would occur if the Municipal Court Prosecutor were to represent private clients before the Municipal Court, we are of the opinion that the petitioner's representation of private clients before the Zoning Board would also present a less obvious, but still problematic, conflict of interest. The petitioner notes that his duties as Municipal Court Prosecutor involve prosecuting zoning enforcement matters. In such cases, the petitioner is expected to work closely with the North Providence zoning/building official, who is a likely prosecution witness in any zoning enforcement case in the Municipal Court. The same zoning/building official is a likely witness in matters pending before the Zoning Board, and his or her actions and opinions will frequently be at odds with the positions taken by private parties and their attorneys. The Ethics Commission has previously opined in an analogous situation that such conflicting representations create an appearance of impropriety and are likely to impair a public official's independence of judgment as to his official duties or employment in violation of section 5(b) of the Code. For example, in A.O. 99-68, the Commission found that the Solicitor for the Town of Johnston, whose duties included providing legal counsel to the Johnston Police Department and acting as prosecutor for misdemeanor violations brought by the Police Department, could not continue to represent an individual in a criminal matter that was brought by the Police Department. The Commission noted that for the same counsel to be appearing opposite those officers in adversarial proceedings would create an appearance of impropriety, and was likely to create repeated circumstances that would lead to an impairment of independence of judgment on behalf of the Town Solicitor, or the improper use of confidential information. In anticipation of this issue, the petitioner in this matter has stated in his request that if necessary he would refrain from representing clients before the Zoning Board. Based on the reasoning set forth in A.O. 99-68, it is our opinion that such restraint is required under the Code of Ethics. Furthermore, it is our opinion that the prohibition on representing clients before the Zoning Board also applies to his law partner and the other attorneys associated with his firm. See e.g. A.O. 96-22 (neither the Narragansett Solicitor nor the other members of his firm may represent defendants in criminal cases brought by the Narragansett Police Department, given the likelihood that as defense counsel he will be required to question and impeach the credibility of the same police officers with whom he works in prosecuting misdemeanor offenses). In summary, the Code of Ethics prohibits the petitioner, the North Providence Municipal Court Prosecutor, as well as his law partner and other attorneys associated with his firm, from representing private clients before the North Providence Municipal Court and the North Providence Zoning Board. Aside from those two municipal entities, the petitioner and the members of his law firm are not prohibited by the Code of Ethics from representing clients before the North Providence Town Council, Planning Board, School Committee or other boards, commissions or departments of North Providence, for which the petitioner has no official duties and over which he exercises no authority or control. Code Citations: 36-14-5(b) 36-14-5(d) 36-14-5(e) Related Advisory Opinions: 2003-73 2003-49 2003-34 2001-18 99-68 99-23 99-19 98-80 98-67 98-42 96-53 96-22 Keywords: Business associate Private employment