Advisory Opinion No. 99-29

Re: Hugo L. Ricci, Jr., Esq.

QUESTION PRESENTED

The petitioner, a legal counsel for municipal boards and commissions and the Salary Review Commission in the Town of North Providence, municipal appointed positions, requests an advisory opinion as to whether he may represent a private client in a civil action against the North Providence School Department given that the matter would require him to present a claim before the Town Council.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a legal counsel for various Town of North Providence municipal boards and commissions and its Salary Review Commission, municipal appointed positions, may not represent a private client in a civil action against the North Providence School Department. Specifically, because the Salary Review Commission exercises fiscal control over the Town Council, the Code of Ethics prohibits the petitioner from presenting a claim before the Council.

The petitioner advises that he was appointed by the mayor as legal counsel to all North Providence municipal boards and commissions, with the exception of the School Committee, School Department and Town Council. The Town Council recently appointed him to serve as legal advisor to the Salary Review Commission, which considers the salary and benefits packages received by members of the Town Council and School Committee. He represents that he has no vote and advises the Commission as to procedural matters and precedent. He further advises that he receives no remuneration for his role as legal advisor. He indicates that he wishes to represent a private client in a personal injury action against the North Providence School Department. The representation would involve an initial presentation of claim to the Town Council’s Claims Committee. If the claim is denied, the matter would then proceed through the courts.

Under the Code of Ethics, the petitioner may not have an interest or engage in any employment or professional activity that is in substantial conflict with the proper discharge of his duties in the public interest. R.I. Gen. Law § 36-14-5(a). He may not use his public position or confidential information received through his position to obtain financial gain, other than that provided by law. R.I. Gen. Law § 36-14-5(d). Further, the Code prohibits him from accepting other employment which will impair his independence of judgment as to his official duties. R.I. Gen. Law § 36-14-5(b). The Code prohibits him 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. R.I. Gen. Law § 36-14-5(e). Finally, Commission Regulation 36-14-5008 prohibits the Petitioner from acting as attorney or agent for compensation before agencies over which he exercises fiscal or jurisdictional control.

Here, the petitioner received his appointment as legal counsel for North Providence municipal boards and commissions through the mayor. His duties in that capacity do not include acting on behalf of the School Committee, School Department or Town Council, nor does he otherwise exercise any control or authority over those entities as municipal legal counsel. Therefore, his status as legal counsel to those boards and commissions does not preclude him from representing a private client in a personal injury action against the School Department.

Also, however, the petitioner recently was appointed as legal advisor to the Salary Review Commission. The fact that he received his appointment from the Town Council does not per se prohibit him from appearing before the Council’s Claims Committee, absent some indication of the potential for improper influence. However, the petitioner's advice to the Commission, which has the responsibility for reviewing the salary structure of, inter alia, members of the Town Council, is part and parcel of his role as a public official. Providing advice to it constitutes "official activity" as that term is used in the Code of Ethics. Since the petitioner advises the Commission on issues pertaining to salary and benefits for Town Council members the prohibitions set forth in Regulation 5008 are triggered. Therefore, the petitioner may not present a claim before the Council while serving as legal advisor to the Salary Review Commission as the Commission exercises fiscal control over the Town Council members’ salary and benefits. Finally, since the petitioner is neither a member nor an employee of the municipal body before which he wishes to appear, the prohibitions set forth in R.I. Gen. Laws § 36-14-5(e) do not apply.

Code Citations:

36-14-5(a)

36-14-5(b)

36-14-5(d)

36-14-5(e)

36-14-5008

Related Advisory Opinions:

98-120

98-80

98-39

97-119

97-16

96-88

96-10

93-32

Keywords:

Acting as agent

Litigation

Private employment