Advisory Opinion No. 2009-46

Rhode Island Ethics Commission

Advisory Opinion No. 2009-46

Re: Joseph R. Ballirano, Esq.

QUESTION PRESENTED

The Petitioner, a lawyer in private practice, who performs legal work on an hourly basis for the Town of Johnston Zoning Board of Review, through the Town Solicitor’s Office, requests an advisory opinion as to whether he is in any way limited by the Code of Ethics in seeking zoning relief from the Zoning Board of Review.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a lawyer in private practice, who performs legal work on an hourly basis for the Town of Johnston Zoning Board of Review, through the Town Solicitor’s Office, is an independent

contractor and, therefore, is not subject to the Code of Ethics or limited by its prohibitions in seeking zoning relief before the Johnston Zoning Board of Review.

The Petitioner is an attorney in private practice in Rhode Island.  He states that in January, 2007, he began providing legal services on an hourly basis to the Town of Johnston, through permission of the Town Solicitor’s Office (“Solicitor”).  Specifically, the Petitioner provides legal services to the Johnston Zoning Board of Review (“ZBR”) including the provision of broad legal opinions, attendance at monthly meetings, and the reduction of ZBR decisions into written form, as required by Rhode Island General Laws. The Petitioner represents that he is not an employee of the Town of Johnston, was not appointed or elected as Solicitor or Assistant Solicitor, and exercises no decision-making authority over the ZBR.  He further states that the ZBR itself is not authorized to hire or retain him, but that his services are procured through the Solicitor’s Office.

Additionally, the Petitioner states that he owns property located at 985 Hartford Avenue in Johnston, which he purchased in August of 2005.  At that time, he converted the building located on the property into an office, which is used to house his law practice.  In order to do so, in 2005 he was granted a special use permit and sign variance by the ZBR as required by the Johnston Zoning Code.  Currently, the Petitioner is desirous of seeking further zoning relief from the ZBR regarding the same property.  Accordingly, the Petitioner requests an advisory opinion as to whether there any prohibitions placed on him by the Code of Ethics in seeking such relief before the ZBR, given that he provides legal services on an hourly basis to the ZBR.

This Commission has repeatedly opined that attorneys in private practice performing legal work for public agencies are independent contractors and, therefore, are not subject to the Code of Ethics, nor constrained by its conflict of interest provisions.  See, e.g., A.O. 2007-43 (opining that an attorney whose law firm served as legal counsel to the North Providence School Committee was an independent contractor, and as such, did not fall under the jurisdiction of the Ethics Commission);  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).  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 or appointed to represent the ZBR, nor is he a full-time employee of the Town of Johnston, the service he provides as legal counsel to the ZBR makes him an independent contractor.  As such, he does not fall under the jurisdiction of the Ethics Commission and is 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 or otherwise constrains his private appearance before the ZBR regarding zoning relief.  This opinion does not, and cannot, address whether the Rules of Professional Conduct for Attorneys or any other statute, charter, ordinance, ruling or policy prohibits 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:

2007-43

2003-41

2001-60

2001-34

99-18

98-85

Related Case Law:

Gemma v. Rhode Island Ethics Commission, No. PC94-3404 (R.I. Super. Ct., Sept. 17, 1994)

Keywords:

Code Jurisdiction