Advisory Opinion No. 96-57

Re: Peter L. Lewiss, Esq.

A. QUESTION PRESENTED

A prospective candidate for the office of councilor on the Westerly Town Council, who is an attorney, requests an advisory opinion as to whether the Code of Ethics would allow him and/or other attorneys employed by the same law firm, to represent clients before the Town Council as well as other Town boards, agencies and courts. (Mr. Lewiss is not presently a public official and, as such, is not presently covered by the Code of Ethics. Section 36-14-11 of the Code requires that an individual be a public official in order to request an advisory opinion. Given that Mr. Lewiss has declared that he is a likely candidate for public office it is recommended that the Commission consider this matter either as an advisory opinion or, pursuant to Commission Regulation 1025, as a request for a declaratory ruling.)

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics, R.I. Gen. Laws § 36-14-5(e)(2), would prohibit a councilor serving as a member of the Westerly Town Council, as well as other members of his law firm, from representing clients before the Town Council. The Commission further concludes that, pursuant to Commission Regulation 5008, neither a Member of the Town Council, nor other members of his law firm, may act for compensation as an attorney before any board, agency or court over which the Town Council exercises fiscal or jurisdictional control, as defined in that regulation.

C. DISCUSSION

1. Facts

The petitioner, Peter L. Lewiss, is an associate attorney at the Westerly law firm of Lewiss & Bauerle. His father is the senior partner at the firm and has maintained a general practice in Westerly for more than thirty years. That general practice has included representation of clients before various boards, agencies and courts in Westerly, including the Town Council.

The petitioner has declared his interest in running for a seat on the Westerly Town Council. The Town Council exercises fiscal and jurisdictional control over a variety of boards, agencies and courts in the Town, before a number of which the petitioner's firm practices.

2. Analysis

The Code of Ethics, R.I. Gen. Laws § 36-14-5(e)(2), prohibits public officials and employees from representing another person or entity before the agency of which the official or employee is a member or is employed. The prohibition extends for a period of one year after the employee has left state or municipal service. Under the definition set forth in R.I. Gen. Laws § 36-14-2(10), an official or employee will "represent" another person or entity before an agency if "he or she is authorized to act, and does in fact act, as the other person's attorney-at-law or his or her attorney-in-fact in the presentation of evidence or arguments before that agency for the purpose of influencing the judgment of the agency in favor of that other person. (Under R.I. Gen. Laws § 36-14-2(6), the definition of "person" includes both an individual or business entity.)

The prohibitions set out in section 5(e)(2) would prohibit the petitioner from representing clients before the Town Council, were he to be elected to that body, both while a member and for a period of one year after he left the Council. In addition, this Commission has concluded in a recent advisory opinion that the prohibitions of section 5(e)(2) also extend to members of the public official or employee's law firm, stating "allowing such a representation, by the petitioner's 'business associate'... before the same agency ... is little different than allowing the petitioner to do the same." See Advisory Opinion 95-108. Therefore, the other members of the petitioner's law firm also would be precluded from representing clients before the Town Council.

With respect to other boards, agencies and courts in Westerly, Commission Regulation 5008 is controlling. That regulation provides that "[n]o 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, board, Commission or governmental entity..." In his advisory opinion request the petitioner lists a number of municipal entities before which his firm practices. Without addressing each of the agencies specifically, the general rule applicable here is that the petitioner may not represent clients before a municipal entity in the Town of Westerly if the Town Council exercises fiscal or jurisdictional control over that entity.

With respect to other members of the petitioner's law firm, the Commission has never specifically considered the question of whether Regulation 5008's prohibitions extend to members of an official's law firm. The Commission concludes that the reasoning of Advisory Opinion 95-108 applies here as well and would prohibit representation by both the official and other members of his firm before such municipal entities.

In his letter requesting an advisory opinion the petitioner inquires whether recusal might cure any potential violations of the Code of Ethics. With respect to section 5(e)(2), recusal is not an option, as the prohibition is absolute. With respect to representation of clients before other municipal entities this Commission has not specifically ruled on the question of recusals; in this instance, however, the recusals would not be limited to particular matters but would have to extend to any and all matters affecting the municipal entities at issue including appointments and consideration of the entities' budgets.

Code Citations:

36-14-2(6)

36-14-2(10)

36-14-5(e)(2)

36-14-5008

Related Advisory Opinions:

95-108

Keywords:

private employment

acting as agent