Advisory Opinion No. 98-42

Re: Edward O. Boucher, Esq.

A. QUESTIONS PRESENTED

1) The Alternate Woonsocket Municipal Court Judge, a municipal appointed position, requests an advisory opinion as to whether he may remain a member of various political committees during his tenure as a municipal judge, and under what, if any, restrictions, and 2) whether the judge, in his private law practice, may represent criminal defendants charged by and/or being investigated by the Woonsocket Police Department given that among the duties he performs as a part-time judge is conducting bail hearings in criminal matters brought before the Municipal Court by the Woonsocket Police Department.

B. SUMMARY

1) The Code of Ethics does not bar the Petitioner from belonging to political committees, or any other organization. The Code does impose restrictions on public officials, however, depending on the nature of their involvement in activities beyond their public duties. Provisions of the Code of Ethics prohibit public officials from acting to benefit financially themselves, family members and business associates. See, e.g., R.I. Gen. Laws §§ 36-14-5(a), (b), (c) and (d). Therefore, while the Petitioner may serve on the political committees, he may not take any action as an Alternate Judge which he had reason to believe or expect would result in financial benefit to one of the committees or to a member of such.

2) As to the issue of whether the Petitioner may represent individuals being investigated by or charged by the Woonsocket Police Department for criminal violations while also conducting bail hearings involving members of that Department, the Commission concludes that he may not. As a judge sitting in the Municipal Court and hearing bail matters, the Petitioner exercises considerable authority in matters involving the Woonsocket Police Department. The ability to exercise this authority would, at minimum, make his representation of individuals being investigated by or charged by the Woonsocket Police Department other employment that would impair his independence of judgment. R.I. Gen. Laws § 36-14-5(b).

C. DISCUSSION

1. Facts

On December 2, 1997, the Woonsocket City Council appointed the Petitioner to a two-year term as Alternate Woonsocket Municipal Court Judge (the “Alternate Judge”), a part-time position. The position of Alternate Judge was created by the City Council in November, 1995. The Petitioner is the first person to be appointed to the job.

The Petitioner’s private employment is as an attorney with an office in Woonsocket. In his private practice the Petitioner handles both civil and criminal matters. This has, and will continue to present him with the opportunity to represent individuals being investigated by or charged by the Woonsocket Police Department for criminal violations. In addition to his private employment, the Petitioner has been and presently is an elected member of the Woonsocket Republican City Committee, the Republican Senatorial District Committee and the Republican District Committee.

The City of Woonsocket Home Rule Charter, through which the Alternate Judge position was created, provides no compensation for the job, nor has the City Council otherwise acted to provide any sort of remuneration for the position. The Charter provides that the City’s Municipal Court shall have a Municipal Court Judge; that the City’s Probate Court Judge shall perform the duties of the Municipal Court Judge in case of sickness, absence from the City, or other disability or ineligibility of said Municipal Court Judge; and that, if the City Council deems it appropriate it may appoint an Alternate Municipal Court Judge to act for the regular Municipal Court Judge under the same conditions as the probate judge would have performed them.

Among the duties performed by the Petitioner as Alternate Judge is conducting bail hearings. The Petitioner represents that he has conducted bail hearings even though neither the Municipal Court Judge nor the Probate Court Judge is unavailable. He indicates that he may seek an advisory opinion from the Attorney General as to whether he is empowered to do so when those judges are not unavailable. Apparently the Probate Court Judge, the first alternate for Municipal Court matters, does not participate in bail hearings because he has a private criminal defense practice that includes representation of individuals being investigated by or charged by the Woonsocket Police Department for criminal violations. Members of the Woonsocket Police Department routinely appear at Municipal Court bail hearings to present matters and/or provide testimony or information.

2. Analysis

1) The Code of Ethics does not bar the Petitioner from belonging to political committees, or any other organization. The Code does impose restrictions on public officials, however, depending on the nature of their involvement in activities beyond their public duties. The Woonsocket Republican City Committee, the Republican Senatorial District Committee and the Republican District Committee are political entities. They also are associations that have a financial component. The Code of Ethics defines “business associate” as a person joined together with another person to achieve a common financial objective. While the committees referenced above obviously pursue various objectives that are not financial, the existence of a financial component is sufficient to qualify the Petitioner and his fellow committee members as business associates. R.I. Gen. Laws 36-14-2(5), (8).

Provisions of the Code of Ethics prohibit public officials from acting to benefit financially themselves, family members and business associates. See, e.g., R.I. Gen. Laws §§ 36-14-5(a), (b), (c) and (d). Therefore, the Petitioner may serve on the political committees referenced above while serving as Alternate Judge without violating the Code of Ethics. He may not, however, take any action as an Alternate Judge which he had reason to believe or expect would result in financial benefit to one of the committees or to a member of such. If and when a matter involving one of the committees of a member of one of the committees came before him in his capacity as Alternate Judge he should abide by the notice and recusal provisions of the Code of Ethics. R.I. Gen. Laws § 36-14-6.

2) As to the issue of whether the Petitioner may represent individuals being investigated by or charged by the Woonsocket Police Department for criminal violations, the Commission concludes that he may not if, as Alternate Judge, he conducts bail hearings involving that Department. As an Alternate Judge the Petitioner has the authority to conduct bail hearings presented by the Woonsocket Police Department or at which members of the department appear as witnesses. The matters brought before the Municipal Court by the Police Department include alleged criminal violations of city ordinances. As a judge sitting in that capacity in the Municipal Court, the Petitioner exercises considerable authority affecting matters involving the Woonsocket Police Department. The ability to exercise this authority would, at minimum, make his representation of individuals being investigated by or charged by the Woonsocket Police Department other employment that would impair his independence of judgment. R.I. Gen. Laws § 36-14-5(b). If, however, the Petitioner does not conduct bail hearings, that conflict of interest dissolves and, as a general rule, he may conduct a criminal practice that includes matters being investigated by or having been charged by the Woonsocket Police Department.

Code Citations:

36-14-2(5)(8)

36-14-5(a)

36-14-5(b)

36-14-5(c)

36-14-5(d)

36-14-6

Related Advisory Opinions:

96-53

96-22

86-69

Keywords:

Dual public roles

Private employment