Advisory Opinion No. 97-119

Re: Neal J. McNamara, Esq.

QUESTION PRESENTED

The Petitioner, member of the East Greenwich Planning Board, a municipal appointed position that receives appointment from the Town Council, requests an advisory opinion as to whether he may act as the private attorney for home owners seeking a challenge in Superior Court to a decision of the East Greenwich Town Council, acting in its capacity as the town's Platting and Subdivision Board, that rejected a recommendation of the Planning Board, particularly given that the litigation may challenge the authority of the Town Council to act in said capacity.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, member of the East Greenwich Planning Board, a municipal appointed position, may not represent homeowners in litigation challenging the Town Councils authority to act. The Code of Ethics prohibits public officials and employees a) from having interests that are in substantial conflict with their duties and employment in the public interest, and b) having other employment that would impair their independence of judgment in the public interest. R.I. Gen. Laws § 36-14-5(a) and (b). The Petitioner has a myriad of interests, both private and public, converging here. His private interests clearly will conflict with his public responsibilities if he accepts representation of the home owners and continues to serve on the town's Planning Board.

Acting as the private attorney for the home owners seeking to challenge the action of the East Greenwich Town Council would place the Petitioner, an appointed official in the town, in an adversarial position against the town. Representing private clients in Superior Court does not implicate any previous actions taken by the Petitioner as a member of the Planning Board, and would not preclude the Petitioner undertaking the representation were he to resign his appointed position with the town. As an appointed town official, however, the Petitioner is in an untenable position if he takes on clients in his private legal practice whose interests both are contrary to the interests of the town and likely to impact actions taken by the very board of which he is a member. Simultaneously assuming both the private representation of the potential litigants and continuing to serve as an official of the town is barred by the Code of Ethics.

Code Citations:

36-14-5(a)

36-14-5(b)

Related Advisory Opinions:

95-18

93-62

93-32

Keywords:

litigation