Advisory Opinion No. 95-91

Re: Anthony B. Sciarretta, Esq.

A. QUESTION PRESENTED

Whether a former Providence Probate Court Judge, who resigned on June 30, 1995 and currently serves as an Alternate Acting Providence Probate Judge, may serve as Co-Executor of an estate and appear before the Providence Probate Court concerning other matters within one year of his resignation from the same.

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that a violation of the Rhode Island Code of Ethics will occur if Anthony B. Sciarretta, Esq., former Probate Court Judge and newly appointed Alternate Acting Judge in the Providence Probate Court, were to bring private clients before the Probate Court during his tenure as an Alternate Acting Probate Court Judge. This holding is based on the fact that as an appointed member of the Probate Court, Mr. Sciarretta's appearance before said Court would be in violation of Code provisions prohibiting a public official from representing anyone before a municipal agency of which he or she is a member or by which he or she is employed pursuant to R.I. Gen. Laws § 36-14-5(e)(2).

Although Mr. Sciarretta would not be compensated for his service to the Providence Probate Court in his capacity as Alternate Acting Probate Judge, he would nonetheless be a associated with that governmental entity in an official capacity. Under the circumstances, the fact that Mr. Sciarretta would have a relationship with the presently sitting Clerk/Acting Judge as a colleague simultaneously affiliated with the same Court, would constitute, at a minimum, an appearance of impropriety. However, once the petitioner leaves his appointed position in the Probate Court, he may appear before said Court on behalf of private clients concerning matters that arise subsequent to his departure date; such appearances, pertaining to matters of public record in a court of law, are not subject to a one year prohibition.

C. DISCUSSION

1. Facts

Anthony B. Sciarretta, a Providence Probate Judge before his resignation on June 30, 1995, is presently employed as an attorney in private practice. One month subsequent to his resignation, he was appointed by the Mayor of Providence to serve as an Alternate Acting Probate Judge. The petitioner requests an advisory opinion as to whether he may act as Co-Executor of an Estate and appear before the Providence Probate Court concerning other matters within one year of his resignation from the same. The petitioner advises that he was appointed to serve as an Alternate Acting Probate Court Judge should the Clerk/Acting Judge be required to recuse or is unavailable to preside over current cases. According to attached correspondence from the Mayor of Providence, Mr. Sciarretta receives no compensation for his service. He will fill the position until the Providence City Council selects a new Probate Court Judge in September or October 1995.

Mr. Sciarretta has been named Executor in the will of a decedent who died on or about July 20, 1995. The petitioner advises that the will must be probated in the Providence Probate Court in a timely manner due to the fact that the estate assets are primarily rental real estate in the City of Providence.

The Commission notes that at the September 13, 1995 Open Session Meeting, Mr. Sciarretta advised that he planned to resign his position as an Alternate Acting Probate Judge on the Providence Probate Court in order to appear before that body as an Executor. The petitioner also indicated that documents in the matter will not be filed with the Probate Court until after his resignation.

2. Analysis

This advisory opinion request concerns the issue of whether a recently resigned Providence Probate Court Judge subsequently appointed as an Alternate Acting Probate Court Judge may act as Co-Executor of an estate and appear before the Providence Probate Court concerning other matters within one year of his resignation from the same. Provisions of the Code of Ethics relating to this question include the following:

R.I. Gen. Laws § 36-14-5(a), prohibiting a public employee or public official from having "any interest, financial or otherwise, direct or indirect, or engag[ing] in any business, employment, transaction or professional activity, or incur[ring] any obligation of any nature, which is in substantial conflict with the proper discharge of his or her duties or employment in the public interest..." in which "a substantial conflict in the discharge of...[one's] responsibilities," is defined as "a direct monetary gain" or "a direct monetary loss" that accrues, by virtue of the public official's or public employee's official activity, to himself or herself, a person within his or her family, any business associate, or any business by which the public official or public employee is employed or represents pursuant to R.I. Gen. Laws § 36-14-7(a);

R.I. Gen. Laws § 36-14-5(b), prohibiting a person subject to the Code from "accept[ing] other employment which will either impair his or her independence of judgement as to his or her official duties or employment or require him or her, or induce him or her, to disclose confidential information acquired by him or her in the course of and by reason of his or official duties;"

R.I. Gen. Laws § 36-14-5(d), prohibiting a person subject to the Code from "us[ing] in any way his or her public office or confidential information received through his or her holding any public office to obtain financial gain, other than that provided by law, for himself or herself or any person within his or her family or business associate or any business by which the person is employed or which the person represents;"

R.I. Gen. Laws § 36-14-5(e)(1), prohibiting any person subject to the Code from "[r]epresent[ing] himself or herself before any state or municipal agency of which he or she is a member or by which he or she is employed;"

R.I. Gen. Laws § 36-14-5(e)(2), prohibiting a person subject to the Code from "[r]epresenting any other person before any state or municipal agency of which he or she is a member or by which he or she is employed;"

and R.I. Gen. Laws § 36-14-5(e)(4), prohibiting a person subject to the Code from participating in any of the activities prohibited by 36-14-5(e)(1) and (e)(2) until one year following his or her departure from the official position unless the activity involves matters of public record in a court of law.

It is the opinion of the Rhode Island Ethics Commission that a violation of the Rhode Island Code of Ethics will occur if Anthony B. Sciarretta, Esq., former Probate Judge and newly appointed Alternate Acting Judge in the Providence Probate Court, were to bring private clients before the Providence Probate Court during his tenure as Alternate Acting Probate Court Judge. This holding is based on the fact that as an appointed acting member of the Probate Court, Mr. Sciarretta's appearance before said Court would be in violation of Code provisions prohibiting a public official from representing anyone before a municipal agency of which he or she is a member or by which he or she is employed pursuant to R.I. Gen. Laws § 36-14-5(e)(2). Although Mr. Sciarretta would not be compensated for his service to the Providence Probate Court in his capacity as Alternate Acting Probate Judge, he would nonetheless be associated with that governmental entity in an official capacity. At a minimum, his appearances before said Court on behalf of private clients while he is so affiliated would constitute an appearance of impropriety.

In previous holdings, the Rhode Island Ethics Commission has allowed former Probate Court Judges to appear before the Courts to which they had been appointed concerning matters that had arisen subsequent to their departure from the Court in question: for example, allowing the former Probate Court Judge for the Town of Narragansett, who served until November 1992, to represent clients before the Narragansett Probate Court concerning matters that arise subsequent to November 1992; and allowing the former Probate Judge from the Town of Westerly, who served until November 1992, to represent clients before the Westerly Probate Court regarding matters arising after November 1992. See Advisory Opinions 93-38 and 93-39. In his advisory opinion request, Mr. Sciarretta makes reference to Advisory Opinion 93-57, which allowed the former Municipal Court Judge for the Town of Westerly to represent private clients before the municipal court regarding any matter which arises subsequent to his departure from his official position.

However, the facts presented in Mr. Sciarretta's advisory opinion request are distinguishing in that subsequent to his resignation form the Providence Probate Court, he was appointed by the Mayor of Providence to serve as an Alternate Acting Probate Court Judge. Under the circumstances, the fact that Mr. Sciarretta would have a relationship with the presently sitting Clerk/Acting Judge as a colleague simultaneously affiliated to the same Court disqualifies him from appearing before the Probate Court on behalf of private clients. Such appearances would be a violation of R.I. Gen. Laws § 36-14-5(a) and 36-14-5(e)(2) as outlined above. Should the petitioner opt to resign his appointment or upon his departure from his present official position, he may appear before the Probate Court concerning matters arising subsequent to his departure date as such appearances, pertaining to matters of public record in a court of law, are not subject to a one year prohibition.

Keywords

Acting as Agent

Post-Employment