Advisory Opinion No. 97-40

Re: Kevin J. McAllister, Esq.

A. Question Presented

The Petitioner, a Cranston City Councilor, a municipal elected position, requests an advisory opinion as to whether other members of his law firm may appear in Probate Court before a judge whom the Petitioner has appointed as a member of City Council.

B. Summary

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, Cranston City Councilor, a municipal elected position, or other members of his law firm cannot appear in Probate Court before a judge whom the Petitioner has appointed as a member of City Council. This opinion is based on Commission Regulation 5008 given that the Petitioner has fiscal and jurisdictional control over the Cranston Probate Court in his position as City Councilor. Additionally, the limitations of Commission Regulation 5008 extend to other members of his law firm and they may not stand in the place of the Petitioner.

C. Discussion

1. Facts

The Petitioner is an elected member of the Cranston City Council. As a member of City Council, the Petitioner appoints the municipal probate judges who serve for a two year term. Additionally, the City Council approves the budget for the Probate Court.

The Petitioner advises that a client of his law firm has a probate matter pending. He asks whether other members of his law firm may represent this client and appear before the Probate Judge, given that he has appointed the Judge.

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 municipal service. The Commission Regulation 5008 states that no municipal 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... for any person..in any particular matter in which the municipality has an interest or is a party... The regulation provides for certain exceptions, such as appearing before a state court of public record or a matter requiring only ministerial acts. We note that a municipal Probate Court does not fall within the exceptions provided in Regulation 5008.

While not ruling on this particular situation in previous advisory opinions, the Commission has found other circumstances preventing members of a public official's law firm from appearing before other municipal boards or entities. This is based on the attorney/public official having a financial interest in the professional activities of his partner and/or associates thereby constituting a business associate relationship under the Code of Ethics. See A.O. 92-64 (concluding that neither Westerly School Department attorney who is appointed by Town Council nor other law firm members can appear before other municipal agencies within Westerly) and A.O. 96-57 (finding that a candidate for Town Council, if elected, nor other members of law firm cannot appear before other Town boards, agencies and courts). See also A.O. 96-22, A.O. 95-108 and A.O. 90-83 where the Commission has concluded that where the petitioner, an attorney, is precluded from representation, his business associates, law firm partners/members are also prohibited from such representation as they stand in the place of the petitioner/attorney.

The Commission has not ruled, with regard to Commission Regulation 5008, whether recusal would cure any potential violation of the Code. (The Commission has ruled, however, that recusal was not possible to defer potential violations of the revolving door prohibition found in Section 5(e) of the Code, see A.O. 96-57). This would require recusal on all matters concerning the Probate Court. Given that the Petitioner has already participated in the appointment of this Probate Judge, recusal is no longer even an option.

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, a Cranston City Councilor, a municipal elected position, or other members of his law firm cannot appear in Probate Court before a judge whom the Petitioner has appointed as a member of City Council. This opinion is based on Commission Regulation 5008 given that the Petitioner has fiscal and jurisdictional control over the Cranston Probate Court in his position as City Councilor. Additionally, the limitations of Commission Regulation 5008 extend to other members of his law firm who may not stand in the place of the Petitioner.

Code Citations:

36-14-5(e)

36-14-5008

Related Advisory Opinions:

96-22

96-57

95-108

92-64

90-83

Keywords:

acting as agent