Advisory Opinion No. 2010-2 Rhode Island Ethics Commission Advisory Opinion No. 2010-2 Re: Alfred W. DiOrio, PLS, CPESC QUESTION PRESENTED The Petitioner, a Hopkinton Planning Board member, a municipal appointed position, who is also a professional land surveyor in private practice, requests an advisory opinion as to whether he is prohibited by the Code of Ethics from acting as an expert witness on behalf of a private client before the Hopkinton Zoning Board of Review. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the Petitioner, a Hopkinton Planning Board member, a municipal appointed position, who is also a professional land surveyor in private practice, from acting as an expert witness on behalf of a private client before the Hopkinton Zoning Board of Review. The Petitioner is a member of the Hopkinton Planning Board (“Planning Board”). He states that the Planning Board reviews and acts upon land development applications and may offer advisory opinions to other municipal boards and commissions. Pursuant to the Town of Hopkinton Town Charter, both Planning Board and Zoning Board of Review members are appointed by the Hopkinton Town Council. See Town of Hopkinton Town Charter, Art. V.,§§ 5110, 5210. In his private capacity, the Petitioner represents that he is the president and principal surveyor of Alfred W. DiOrio, RLS, Inc., a professional land surveying and land-use consulting firm.[1] The Petitioner asks whether the Code of Ethics prohibits him from acting as an expert witness on behalf of a current client before the Hopkinton Zoning Board of Review. The Code of Ethics provides that the Petitioner shall not represent himself or any other person before his Board. R.I. Gen. Laws § 36-14-5(e)(1) and (2). Additionally, R.I. Gen. Laws § 36-14-5(e)(3) prohibits the Petitioner from appearing as an expert witness before his Board with respect to any matter the agency's disposition of which will, or can reasonably be expected to, directly result in an economic benefit or detriment to himself, or any person within his family or any business associate of the person or any business by which the person is employed or which the person represents. R.I. Gen. Laws § 36-14-5(e)(4) extends the prohibitions of R.I. Gen. Laws § 36-14-5(e) to one year after the Petitioner has officially severed his position with his Board. Commission Regulation 36-14-5016 clarifies that the prohibition on representing oneself also includes representing oneself or any other person before another agency for which the official is the appointing authority or a member thereof. It is the opinion of the Ethics Commission that, barring any additional facts that would implicate other prohibitions found in the Code, nothing in the Code of Ethics prohibits the Petitioner from acting as an expert witness before the Hopkinton Zoning Board of Review, an entity of which he is neither a member, nor serves as an appointing authority. See A.O. 2002-7 (opining that a Warwick Zoning Board member may testify as an expert witness before the Warwick City Council in his private capacity as a real estate broker/appraiser given that section 5(e)’s revolving door restrictions do not extend to his having substantive involvement in matters before other municipal departments or entities within the City of Warwick, such as the City Council.); A.O. 96-84 (opining that the prohibitions of R.I. Gen. Laws § 36-14-5(e) do not apply to a former Jamestown Planning Board member appearing before the Jamestown Zoning Board since he was not a member of that Board nor was he appointed by the Zoning Board to his position on the Planning Board). The Petitioner is advised, however, that this opinion solely addresses whether the Code of Ethics prohibits or otherwise constrains his private appearance before the Zoning Board of Review as an expert witness. This opinion does not, and cannot, address whether 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: 36-14-5(e) Regulation 36-14-5016 Related Advisory Opinions: 2002-7 96-84 Keywords: Revolving Door [1] The Petitioner advises that he is a long standing member of the Hopkinton Planning Board and has received a number of prior advisory opinions from this Commission. See A.O. 2005-63; A.O. 2003-21; A.O. 92-13; A.O. 86-26