Advisory Opinion No. 2008-66 Rhode Island Ethics Commission Advisory Opinion No. 2008-66 Re: Girard A. Galvin, Esq. QUESTION PRESENTED The petitioner, the Assistant City Solicitor for the City of Newport, a municipal appointed official, who in his private capacity is an associate attorney at the law firm of Corcoran, Peckham, Hayes & Galvin, P.C., requests an advisory opinion regarding whether he and the other attorneys at his law firm may represent clients before the Newport City Council, Zoning Board, Planning Board, Probate Court, Board of Tax Appeal, or any other City board, court or entity. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the petitioner, the Assistant City Solicitor for the City of Newport, a municipal appointed official, would be prohibited, along with the other members of his firm, from representing private clients before the Newport Municipal Court. However, based on the facts as represented by the petitioner, the Code of Ethics does not prohibit the petitioner or other members of his firm from representing clients before other Newport boards and courts before which he does not represent the City as the Assistant City Solicitor, and over which he exercises no authority or control, such as the City Council, Zoning Board, Planning Board, Probate Court, and Board of Tax Appeal. The petitioner states that he is the Assistant City Solicitor for the City of Newport. The Assistant City Solicitor is appointed by the City Solicitor and subject to confirmation by the City Council. The petitioner states that the duties of the position are limited to prosecution of misdemeanor criminal matters before the Rhode Island District Court and municipal ordinance violations, other than Zoning Ordinance violations, before the Newport Municipal Court ("Municipal Court"). Additionally, the petitioner notes that he may be asked to appear before the Newport City Council ("City Council") from time to time for the sole purpose of reporting out regarding matters relating to his prosecutions. The petitioner expressly represents that his duties do not include the prosecution of violations of the Newport Zoning Ordinance, nor do they include serving as legal counsel to the City Council, the Zoning Board nor to any other municipal board or agency. In his private capacity, the petitioner is an associate attorney employed by the law firm Corcoran, Peckham, Hayes & Galvin, P.C. in Newport. The petitioner and members of his firm regularly represent clients before a variety of Newport boards and courts including, but not limited to, the City Council, Zoning Board, Planning Board, Board of Tax Appeals, and Probate Court. He states that the firm does not currently have a significant criminal law or Municipal Court practice. Given his anticipated duties as the Assistant City Solicitor, as described above, the petitioner asks whether the Code of Ethics prohibits him or other attorneys at his firm from representing private clients before any of the aforementioned City of Newport boards and courts. 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), (2), and (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 is also 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 set forth in previously issued advisory opinions. In A.O. 2008-27, the Municipal Court Prosecutor for the town of North Providence, whose duties involved prosecuting traffic offenses, animal violations and zoning enforcement matters before the Municipal Court, asked whether he or his law partner could represent private clients before various boards and agencies in the town such as the Town Council, Zoning Board, Planning Board and School Committee. The Ethics Commission opined that the Code of Ethics did not prohibit his representation of clients before such municipal entities, other than the Municipal Court and the Zoning Board, given that his duties did not include acting on behalf of those other municipal entities, and that he did not otherwise exercise any control or authority over them. Id. Similarly, in A.O. 99-23 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 them. See id. 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 those 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, neither the petitioner nor the other members of his firm may represent private clients before the Newport Municipal Court, given the petitioner's substantial public duties in that Court on behalf of the City. See R.I. Gen. Laws 36-14-5(e). If the petitioner's public duties involved prosecution of Zoning Ordinance violations, or regularly working with the zoning official responsible for enforcing the Zoning Ordinance, he and his firm would also be prohibited from representing clients before the Newport Zoning Board. A.O. 2008-27 (Municipal Court Prosecutor whose duties included prosecuting zoning violations may not represent private clients before zoning board, given close working relationship between prosecutor and zoning/building official, who is a likely prosecution witness in any zoning enforcement matters, and who is also a likely witness in matters pending before the zoning board). Here, however, the petitioner expressly states that he will not prosecute Zoning Ordinance violations. Furthermore, although the petitioner notes that he will be required to take the testimony of the City's Deputy Zoning Officers who investigate and enforce the City's noise ordinance, he states that these Deputy Zoning Officers are not involved in the prosecution of Zoning Ordinance violations nor are they involved in objecting to, approving, or ruling on requests for zoning relief. Based on these representations, it is our opinion that the Code of Ethics does not prohibit him or the other members of his firm from representing clients before the Newport Zoning Board. See A.O. 2008-27; A.O. 99-68. Similarly, given the petitioner's representation that he has no duties involving any board, court or agency of the City of Newport other than the Municipal Court, aside from the ministerial reporting of prosecution status matters to the City Council, the petitioner and the other members of his firm are not prohibited from representing clients before the other various boards and agencies of the City of Newport such as the City Council, Planning Board, Board of Tax Appeals, Probate Court and/or other City boards, commissions and departments before which he does not represent the City as the Assistant City Solicitor, and over which he exercises no authority or control. The petitioner is strongly cautioned, however, that should his appearances before the City Council or any other agency involve more than a ministerial reporting out, or if his duties as Assistant City Solicitor come to involve working with the City's zoning enforcement officers, then he should seek further guidance from this Commission as to the propriety of his, or his firm's, future representation of clients before that agency. Code Citations : 36-14-5(b) 36-14-5(d) 36-14-5(e) Related Advisory Opinions : 2008-27 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