Advisory Opinion No. 95-108

Re: William J. Gallogly, Esq.

A. QUESTION PRESENTED

Whether the Special Solicitor appointed by the Hopkinton Town Council or other members of his law firm may represent a private client before the Town Council concerning a subdivision application.

B. SUMMARY

In addition, another member of petitioner's law firm may not represent clients before the Town Council. With this finding, the Ethics Commission hereby amends Advisory Opinion 89-45 which allowed the Coventry Assistant Town Solicitor's law firm to represent private clients before the municipal agencies which the petitioner serves as legal counsel. The Commission finds that allowing such a representation, by the petitioner's "business associate" as defined by R.I. Gen. Laws § 36-14-2(8), before the same agency that appointed and compensates the petitioner is little different than allowing the petitioner to do the same. First, the monetary gain accruing to the business associate from carrying out the representation ultimately accrues to the petitioner. Second, the unfair advantage which the petitioner would enjoy were he to represent his private client before the very body he serves in an official capacity may also accrue to the petitioner's business associates. Therefore, both of the real and potential consequences of allowing a business associate to represent the petitioner's private clients would violate R.I. Gen. Laws § 36-14-5(a). Thus, the Commission's finding in Advisory Opinion 89-45 is limited to the holding of this Advisory Opinion.

C. DISCUSSION

1. Facts

William J. Gallogly, the Special Solicitor appointed by the Hopkinton Town Council, requests an advisory opinion as to whether he may represent a private client before the same Town Council. Petitioner advises that he was initially appointed Special Solicitor to provide legal counsel concerning an appeal filed by the Chariho Regional School Committee to the Commissioner of Education regarding the 1995-1996 school budget. During a conversation with a member of the Commission staff, the petitioner advised that the Town Council approves his bills for payment, and that he has recently received an additional request for service from the Hopkinton Town Council concerning another matter related to the school system.

Prior to his appointment as Special Solicitor, the petitioner represented a client concerning her subdivision application. The Town of Hopkinton's Planning Board granted provisional approval of the proposed subdivision application pending approval from the Department of Environmental Management (DEM) concerning the modifications to certain wetlands required by the subdivision request. The Town's subdivision ordinances require the final approval for any subdivision to be granted by the Town Council. Mr. Gallogly advises that since his appointment by the Town Council as Special Solicitor, he has not appeared before the Planning Board or the Town Council concerning his private client's subdivision application as DEM has not yet responded. At present, his private client is reconsidering her initial plans to subdivide her property. If the client proceeds with her revised plan, it would not require creating any additional lots.

2. Analysis

At issue in this advisory opinion request is whether special counsel appointed by the Hopkinton Town Council or other members of his law firm may represent a private client before the same Town Council. The Code of Ethics provisions relevant 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)(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 public official from participating in the activity in described in R.I. Gen. Laws § 36-14-5(e)(2) above "for a period of one year after he or she has officially severed his or her position with said state or municipal agency; provided, however, that this prohibition shall not pertain to a matter of public record in a court of law."

It is the opinion of the Rhode Island Ethics Commission that the Special Solicitor for the Town of Hopkinton, appointed and compensated by the Town Council, may not appear before the same body on behalf of a private client. Such an appearance would involve representing another person before a municipal agency the petitioner serves in an official capacity in violation of R.I. Gen. Laws § 36-14-5(e)(2). The Commission's conclusion is based on a previous finding prohibiting the special counsel to the Town of Barrington from representing an individual client before the municipal agency he served until one year had elapsed since his last appearance before said agency. See Advisory Opinion 89-36. That the petitioner should fall within the Commission's jurisdiction was established with a previous holding which provided that since special legal counsel "are appointed by the governing body of municipal government and since they perform governmental functions...[they are] subject to the provisions of the Rhode Island Code of Ethics." See Advisory Opinion E87-10.

The Commission further holds that another member of petitioner's law firm may not represent clients before the Town Council. With this finding, the Ethics Commission hereby amends Advisory Opinion 89-45 which allowed the Coventry Assistant Town Solicitor's law firm to represent private clients before the municipal agencies which the petitioner served as legal counsel. The Commission finds that allowing such a representation, by the petitioner's "business associate" as defined by R.I. Gen. Laws § 36-14-2(8), before the same agency that appointed and compensates the petitioner is little different than allowing the petitioner to do the same. First, the monetary gain accruing to the business associate from carrying out the representation ultimately accrues to the petitioner. Second, the potential for unfair advantage, which is the cornerstone of the broad prohibitions of subsection 5(e)(2) and which the petitioner would enjoy were he to represent his private client before the very body he serves in an official capacity, may also accrue to the petitioner's business associates. Therefore, the prohibitions set out in subsection 5(e)(2) necessarily extend both to the petitioner and to the members of his law firm. See also R.I. Gen. Laws § 36-14-5(a). Thus, the Commission's finding in Advisory Opinion 89-45 is limited to the holding of this Advisory Opinion.

Keywords

Acting as Agent

Business Associate