Advisory Opinion No. 98-98

Re: Judge G. Scott Nebergall


The Petitioner, the Municipal Judge for the Town of Tiverton, a municipal appointed position, requests an advisory opinion as to whether he may preside over and adjudicate a complaint alleging violations of the Home Rule Charter of the Town of Tiverton by members of the Town Council given that he receives appointment to his position through a majority vote of the Council to a term concurrent with that of the Council members.


It is the opinion of the Rhode Island Ethics Commission that the Petitioner, Municipal Judge for the Town of Tiverton, a municipal appointed position, may preside over and adjudicate a complaint against members of the Town Council that appointed him. The mere fact that a public official presides over and/or decides a matter involving his or her appointing authority does not constitute a violation of the Code of Ethics without additional evidence implicating the specific prohibitions set forth in R.I. Gen. Laws § 36-14-5. Here, the Petitioner’s term of office is coterminous with that of the Town Council. Having already received appointment from the Council as Municipal Court Judge, the next regular juncture at which that appointing authority could affect him would be in considering his appointment to a successive term. Before that, however, town elections will take place, with all Town Council seats up for election. The election constitutes an independent, intervening event that effectively insulates the Petitioner from potential conflicts of interest involving his appointing authority.

The Petitioner, as a Municipal Court Judge, is subject to the Code of Ethics. R.I. Gen. Laws § 36-14-2(2), (4)(b). As such, he may not have an interest or engage in any employment or professional activity which is in substantial conflict with the proper discharge of his duties in the public interest. See R.I. Gen. Laws §§ 36-14-5(a), 36-14-7(a). The Petitioner also is prohibited from using his public position or confidential information received through his position to obtain financial gain, other than that provided by law. See R.I. Gen. Laws § 36-14-5(d). The Code also prohibits the Petitioner from representing himself or any other person before the agency of which he is a member or by which he is employed and for one year after leaving the public position. See R.I. Gen. Laws §§ 36-14-5(e)(1), 5(e)(2), and 5(e)(4).

None of these specific prohibitions bar the Petitioner from presiding over and adjudicating the complaint lodged against members of the Town Council. Because the current Council does not have the ability to affect the Petitioner’s private interests, including his possible reappointment and compensation, until after the intervening event of an election, no conflicts of interest are present.

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