Advisory Opinion No. 2008-32 Rhode Island Ethics Commission Advisory Opinion No. 2008-32 Re: Roderick A. J. Cavanagh, Esq. QUESTION PRESENTED The petitioner, a Special Education Due Process Hearing Officer (“DPHO”), requests an advisory opinion as to whether he is prohibited by the Code of Ethics from representing a client before the Rhode Island Department of Education. RESPONSE It is the opinion of the Ethics Commission that the petitioner, a Special Education Due Process Hearing Officer (“DPHO”), is an independent contractor, and as such, is not subject to the Code of Ethics nor constrained by its conflict of interest provisions. See R.I. Gen. Laws § 36-14-4. The petitioner is an attorney in private practice in the State of Rhode Island. As a part of his practice, he has served as a Special Education Due Process Hearing Officer (“DPHO”) for approximately nineteen years. He states that at one point, there were over 180 such hearing officers in Rhode Island, but that now he is one of four attorneys remaining who serve in this capacity. He further states that he was appointed to the panel of available DPHOs by Troy Earhart, a prior Commissioner for the Rhode Island Department of Education (“Commissioner”), and that he has continued serving as a DPHO since that time. He states that his appointment is as one of a list of attorneys available to serve as DPHOs and is not for any term of office, and further, that he serves at the pleasure of the Commissioner and may continue to be called upon until he decides to discontinue serving and/or is removed from the list, for whatever reason, by the current Commissioner. He states that in his capacity as a DPHO, unlike some other full-time educational hearing officers, he is neither employed by, nor paid by, the State of Rhode Island. He states that under the Individuals with Disabilities Education Act (“IDEA”), when students with disabilities desire to appeal a decision of a municipal school district in regard to their education, they may request a special type of administrative hearing known as a Due Process Hearing. In such instances, a DPHO is requested to hear the appeal and render a decision. The petitioner states that, in total, approximately fifty such hearings are conducted in the state per year and that he is compensated for the hearings he presides over on a case-by-case basis by the individual school districts in which the matters are heard. He states that is he not an employee of any given school district and that he may be called upon to serve as a DPHO by any school district in the state. The decisions that he renders as a hearing officer are filed with the Rhode Island Department of Education (“RIDE”) and copies given to the parties. Parties aggrieved by the findings and decision of a DPHO may bring a subsequent civil action “ in any State court of competent jurisdiction or in a district court of the United States .” Regulation 300.516 of the Board of Regents for Elementary and Secondary Education, Governing the Education of Children with Disabilities. Pursuant to R.I. Gen. Laws § 16-24-2, the State Board of Regents for Elementary and Secondary Education (“Board of Regents”) is charged with the duty of creating regulations in regard to the special education of children with disabilities, including, inter alia, “[p]rovisions permitting parents . . . and their authorized representatives to appeal decisions made pursuant to the regulations . . . .” Id. To this end, the Board of Regents Regulation regarding due process hearings requires that hearing officers overseeing such hearings must not be “employee[s] of [RIDE] or the [local education agency] that is involved in the education or care of the child . . . [and that a] person who otherwise qualifies to conduct a hearing . . . is not an employee of the agency solely because he or she is paid by the agency to serve as a hearing officer.” Regulations 300.511(c)(1)(a) and (2) of the Board of Regents for Elementary and Secondary Education, Governing the Education of Children with Disabilities. Thus, the pertinent Board of Regents Regulation prohibits employees of RIDE and the local educational agencies from serving as DPHOs, and further states that persons serving as DPHOs are not to be regarded as employees of those agencies solely because they are paid by those agencies for serving as hearing officers. In addition to his work as a DPHO, the petitioner also represents private legal clients in the State of Rhode Island. Currently, he is representing a non-tenured teacher that was employed by the Newport School Department, who received notice of the non-renewal of her contract from the Newport School System. The petitioner has represented this client in her appeal from the School Department’s initial determination and in a hearing held thereafter before the Newport School Committee. Ultimately, the Newport School Department ruled against the non-tenured teacher and, subsequent to the School Department’s ruling, the non-tenured teacher filed an appeal for a hearing before RIDE. It is at this juncture that the petitioner is requesting an advisory opinion as to whether the Code of Ethics prohibits him from continuing to represent his client in the forthcoming review before RIDE. As a threshold determination, this Commission must decide whether the petitioner, in his role as a DPHO, is a person subject to the Code of Ethics. R.I. Gen. Laws § 36-14-4, entitled “Persons subject to the Code of Ethics,” provides that the following groups of individuals shall be subject to the Code of Ethics in government: “(1) State and municipal elected officials; (2) State and municipal appointed officials; and (3) Employees of state and local government, of boards, Commissions, and agencies.” As this petitioner is indisputably not an elected official of any sort, the question that remains is whether he is to be considered a state appointed official or an employee of the state or local government. The Code defines a state appointed official as “ any officer or member of a state . . . agency as defined herein who is appointed for a term of office specified by the constitution or a statute of this state . . . or who is appointed by or through the governing body or highest official of state or municipal government.” R.I. Gen. Laws § 36-14-2(9). Regulation 36-14-2002(2) expands upon this definition to include “any officer or member of a state . . . agency as defined herein who is appointed to an office specified by the constitution or a statute of this state . . . or who is appointed by, through or with the advice and consent of a governing body, or any court, in state or municipal government, or highest official of state or municipal government.” The petitioner provides that he was appointed as a person eligible to serve as a DPHO by a former Commissioner of Education; however, there is no constitutional or statutory provision specifying or providing for the appointment of such officers, nor any statutory provision prescribing the powers and duties of such officers; rather, Board of Regents Regulation 300.511 provides for the existence of “Impartial Hearing Officers” and defines the minimum eligibility criteria for such individuals. Thus, pursuant to the definitions found at R.I. Gen. Laws § 36-14-2(9) and Regulation 36-14-2002(2), this petitioner is not a state appointed official for purposes of the Code of Ethics. As to “employees of state and local government, of boards, commissions and agencies,” the Code defines these individuals as “any full-time or part-time employees in the classified, non-classified and unclassified service of the state or of any city or town within the state, any individuals serving in any appointed state or municipal position, and any employees of any public or quasi-public state or municipal board, commission or corporation.” R.I. Gen. Laws § 36-14-2(4). Regulation 36-14-2002 further broadens this definition to include: “ a) any individual receiving a salary from a state or municipal agency, whether elected or not, on a full-time or part-time basis; (b) any individual in the classified, non-classified and unclassified service of the judicial, executive and legislative branches of state government; (c) any individual in the classified, non-classified and unclassified service of any municipality within the state; (d) any individual receiving a salary from any public or quasi-public state or municipal board, commission, corporation, or other public or quasi-public agency however named; and, (e) any state or municipal appointed official who receives a salary or stipend for their appointed service.” The petitioner represents that he is not a salaried employee of either the state or any specific municipality, but rather, is paid on a case-by-case basis by the school district in which the hearing is held. Additionally, the aforementioned Board of Regents Regulation 300.511 specifically provides that a Hearing Officers is not “an employee of the agency solely because he or she is paid by the agency to serve as a hearing officer.” Furthermore, 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 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)); A.O. 2007-43 (opining that the petitioner, who served as legal counsel to the North Providence School Committee, was an independent contractor and thus not subject to the Code of Ethics); 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. 2001-34 (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). While in the past the Commission has found a number of different administrative hearing officers were persons subject to the Code of Ethics, those hearing officers, unlike this petitioner, were clearly full-time state employees. See, e.g., A.O. 2006-58 (Deputy Chief Legal Counsel in the Division of Legal Services for the Department of Health whose duties included serving as a hearing officer for 38 licensed health care professions and facilities); A.O. 99-121(Legal Counsel in the Department of Business Regulation who may serve as prosecutor or hearing officer in insurance producer license matters); A.O. 97-124 (Chief Hearing Officer of the Administrative Adjudication Division for Environmental Matters at the Department of Environmental Management ). Thus, it is the opinion of the Ethics Commission that based on relevant definitions within the Code of Ethics and prior advisory opinions, this petitioner, who serves as a Special Education Due Process Hearing Officer, is an independent contractor and as such, is not subject to the Code of Ethics nor constrained by its conflict of interest provisions. Finally, the Petitioner is cautioned that this opinion solely addresses whether he is a person subject to the Code of Ethics. This opinion does not address whether any other statutes, rulings or policies, specifically from the Rhode Island Department of Education, the Board of Regents, or the Rhode Island Rules of Professional Conduct, prohibit such activity. Code Citations : § 36-14-2(4) § 36-14-2(9) § 36-14-4 Regulation 36-14-2002(2) Regulation 36-14-2002(3) Other Law Cited : R.I. Gen. Laws § 16-24-2 R.I. Gen. Laws § 16-60-6 Regulations of the Board of Regents for Elementary and Secondary Education Governing the Education of Children with Disabilities §§ 300.516, 300.511(c)(1)(a), and 500.511(c)(2) Gemma v. Rhode Island Ethics Commission , No. PC94-3404 (R.I. Super. Ct., Sept. 17, 1994) Related Advisory Opinions : A.O. 2007-43 A.O. 2006-58 A.O. 2004-19 A.O. 2001-60 A.O. 2001-34 A.O. 99-121 A.O. 98-85 A.O. 97-124 Keywords : Jurisdiction Private Employment