Advisory Opinion No. 98-67

Re: William L. Bernstein, Esq.

QUESTION PRESENTED

The Petitioner, the Burrillville Assistant Solicitor, a municipal appointed position, requests an advisory opinion as to whether, if appointed, he may serve simultaneously as a part-time municipal court judge for a proposed regional municipal court for the Towns of Burrillville and North Smithfield.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Petitioner, the Burrillville Assistant Solicitor, a municipal appointed position, may not serve simultaneously as a part-time municipal court judge for a proposed regional municipal court for the Towns of Burrillville and North Smithfield.

The Petitioner advises that the Towns of Burrillville and North Smithfield are considering the establishment of a regional municipal court to handle matters within the general jurisdiction of municipal courts. There also exists the possibility that a third town, Gloucester, may join the regional municipal court. As Burrillville Assistant Solicitor, the Petitioner’s duties include the prosecution of misdemeanors and other violations in District Court division of the State court system. He also represents and advises the Town and its various departments on various matters. The Petitioner indicates that were he to receive appointment as a judge of the regional municipal court, if required, he would recuse on all matters concerning Burrillville.

The Commission concludes that the Petitioner may not serve as both Assistant Solicitor and as a judge for a regional municipal court that would include the Town of Burrillville. Under the Code of Ethics, the Petitioner may not accept other employment which would either impair his independence of judgment as to his official duties or induce him to disclose confidential information acquired by him in the course of and by reason of his official duties. R.I. Gen. Laws § 36-14-5(b). We conclude that simultaneous service as counsel for the Town of Burrillville and the component parts of its municipal government and service as a municipal court judge with jurisdiction over matters involving that town per se would constitute such employment. Accordingly, the Petitioner may not act as a regional municipal judge and hear matters that may directly or indirectly impact Burrillville while he is simultaneously employed as Assistant Solicitor for the same municipality. The Petitioner’s proffered recusal on all Burrillville matters would be insufficient, as decisions concerning North Smithfield also would have the potential to impact Burrillville and/or future matters involving that town and its residents. Additionally, recusal on a substantial number of matters before the court would seem to defeat the purpose of a regional court. The Petitioner is advised that may not accept an appointment to such a court while continuing to serve as Assistant Solicitor. In the alternative, he may resign from his position as Assistant Solicitor and accept such an appointment.

Code Citations:

36-14-5(b)

Related Advisory Opinions:

96-17

96-22

95-85

Keywords:

Dual public roles