Advisory Opinion No. 2008-68 Rhode Island Ethics Commission Advisory Opinion No. 2008-68 Re: The Honorable William L. Bernstein QUESTION PRESENTED The Petitioner, a Probate Court Judge for the Town of Glocester, a municipal appointed position, requests an advisory opinion as to whether he may simultaneously serve as a Town Solicitor within the same municipality. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the Petitioner, a Probate Court Judge for the Town of Glocester, a municipal appointed position, from simultaneously serving as a Town Solicitor in the same town, provided that he does not appear or represent any other person before the Probate Court or any other board or department by which is employed, or become involved in any matter over which the Probate Court has jurisdiction. The Petitioner is a Probate Court Judge for the Town of Glocester (“Town”). In his private capacity, the Petitioner is a practicing attorney. The Petitioner advises that he would like to serve as a Solicitor for the Town. He represents that the primary duties as Town Solicitor would be to advise the Town Council and the various boards and departments, such as the zoning and planning boards, and to prosecute misdemeanor crimes on behalf of the police department. The Petitioner represents that the duties of the Town Solicitor and the Probate Court Judge are separate and distinct. In addition, the Petitioner represents that he will not appear or represent others before the Probate Court or any other board or department within the Town nor will he involve himself in any matter over which the Probate Court has jurisdiction. Given these facts, the Petitioner asks whether simultaneously serving in both capacities is permissible under the Code of Ethics. Under the Code of Ethics, the Petitioner may not participate in any matter in which he has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of his duties and employment in the public interest. See 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). The Code further provides that he shall not engage in any employment that will impair his independence of judgment as to his public duties. See R.I. Gen. Laws § 36-14-5(b). He is prohibited from using his public position or confidential information received through his position to obtain financial gain, other than that provided by law. See R.I. Gen. Laws § 36-14-5(d). 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. The aforementioned provisions of the Code of Ethics do not create an absolute bar to simultaneous service as Probate Court Judge and as a Town Solicitor. Rather, those provisions require a matter by matter evaluation and determination as to whether substantial conflicts of interest exist with respect to carrying out an official’s duties in the public interest. See A.O. 2007-9 (opining that the Town Manager for the Town of Hopkinton may simultaneously serve as Town Manager and interim Municipal Court Judge until a permanent judge is appointed without running afoul of the Code of Ethics); A.O. 2004-10 (opining that a member of the Pawtucket Housing Authority Board of Commissioners simultaneous service as Administrative Assistant to the Mayor of Pawtucket did not, in and of itself, present a conflict of interest under the Code of Ethics); A.O. 99-100 (opining that the Petitioner’s simultaneous service on the Tiverton Conservation Commission and the Tiverton Planning Board, municipal appointed positions, did not present a conflict of interest under the Code of Ethics). Since the Petitioner’s duties as Probate Court Judge and Town Solicitor are separate and distinct, there is no indication that serving in both capacities would impair the Petitioner's independence of judgment as to his public responsibilities. Nor is there any indication that the simultaneous service, in and of itself, creates a substantial conflict with respect to carrying out his duties in the public interest. See A.O. 99-62 (opining that the Associate Judge of the Pawtucket Municipal and Housing Court could also be appointed as legal counsel to the Pawtucket Housing Authority since both positions had sufficiently distinct spheres of responsibilities such that it was unlikely that the Petitioner’s independence of judgment would be affected in either position by virtue of the fact that he also held the other position). Accordingly, it is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the Petitioner from simultaneously serving as the Probate Court Judge and a Town Solicitor in the same town, provided that he does not appear or represent any other person before the Probate Court or any other board or department by which is employed or become involved in any matter over which the Probate Court has jurisdiction. Finally, the petitioner is advised that this opinion solely addresses whether the Code of Ethics prohibits him from simultaneously holding these public positions. 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) § 36-14-5(d) § 36-14-5(e) § 36-14-7(a) Commission Regulation 36-14-5008(b) Related Advisory Opinions: 2007-9 2004-10 99-100 99-62 Keywords: Dual public roles