Advisory Opinion No. 97-71

Re: Donald J. Packer, Esq.

QUESTION PRESENTED

The Petitioner, New Shoreham Town Solicitor, a municipal appointed position, and an attorney who occasionally provides services to the Town of Foster Zoning Board, requests an advisory opinion as to whether he may 1) represent private clients before the New Shoreham Zoning Board, and 2) represent clients before the Foster Zoning Board.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, New Shoreham Town Solicitor, a municipal appointed position, and an attorney who occasionally provides services to the Town of Foster Zoning Board, may not represent private clients before the New Shoreham Zoning Board. R.I. Gen. Laws § 36-14-5(e) provides that persons subject to the Code of Ethics cannot represent themselves or other persons or entities before an agency in which he/she is a member or is employed. Additionally, Commission Regulation 36-14-5008 provides that public officials cannot act as agent or attorney before any agency over which they exercise fiscal or jurisdictional control. The Petitioner states that as New Shoreham Town Solicitor he represents the Town in land use and other administrative matters including advising the Zoning and Planning Boards. Based on these representations, previous advisory opinions, and the revolving door provisions, the Petitioner cannot represent private clients before municipal agencies including the Zoning and Planning Boards or other agencies over which he has fiscal and jurisdictional control. This prohibition extends to one year from the severance of his and his law firm's position as Town Solicitor. See R.I. Gen. Laws § 36-14-5(e)(4).

In the Foster matter, the Petitioner represents that he sits as legal advisor once or twice a year when the Foster Solicitor has a conflict of interest on a particular matter. The Commission in a previous advisory opinion, A.O. 89-36, concluded that an attorney who was engaged by Barrington for a particular matter because the Town Solicitor had a conflict could not then appear before the Barrington municipal agencies that he represented for one year after his last appearance. Therefore, if the Petitioner has an ongoing relationship with the Foster Zoning Board, he cannot represent private clients before the Board until one year following the severance of this relationship with the Foster Zoning Board. Additionally, the Code of Ethics prohibits the Petitioner from representing private clients before other Foster agencies over which the Zoning Board has fiscal and jurisdictional control. The Commission concludes that an ongoing relationship may include one where an attorney represents a Board once or twice per year, particularly if it is reasonably foreseeable that future representation will occur.

Code Citations:

36-14-5(a)

36-14-5(e)

36-14-7(a)

36-14-5008

36-14-6001

Related Advisory Opinion:

97-10

96-88

96-22

91-88

89-73

89-36

89-24

88-8

Keywords:

acting as agent

revolving door