Advisory Opinion No. 99-144

Re: Frederick G. Tobin, Esq.

QUESTION PRESENTED

The petitioner, the Coventry Assistant Town Solicitor, a municipal appointed position, requests an advisory opinion as to whether he may represent private clients before various municipal boards and agencies in the Town of Coventry, as well as in criminal cases brought by the Coventry Police Department, given that his sole responsibility as an Assistant Town Solicitor involves representing the School Department.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics prohibits the petitioner, the Coventry Assistant Town Solicitor, a municipal appointed position, from representing private clients before the Coventry Zoning Board, Planning Board, Tax Assessment Review Board and the Town Council, given that said boards are advised by the Town Solicitor and/or other Assistant Solicitors. His representation of a private client before the Office of the Town Solicitor, including bodies advised by individual Assistant Solicitors, may impair the petitioner’s independence of judgment as to his official duties in the public interest. See R.I. Gen. Laws § 36-14-5(b). The Code further prohibits him from representing private clients in criminal matters brought by the Coventry Police Department given that the Office of the Town Solicitor has jurisdiction over such matters. This opinion is based on the appearance of impropriety, the use of office to achieve financial gain, and the reasonable likelihood likelihood that the private employment will either impair the petitioner’s independence of judgment or induce disclosure of confidential information. R.I. Gen. Laws § 36-14-5(a), b)& (d).

The petitioner wishes to represent clients in his private law practice before the Coventry Zoning Board, Planning Board, Tax Assessment Review Board and Town Council while serving as one of three Assistant Solicitors within the same municipality. He also wishes to represent private clients in criminal cases brought by the Coventry Police Department. He advises that the Solicitor appoints the three Assistant Solicitors, subject to the Council’s approval. He indicates that his sole responsibility involves handling School Department matters and he is paid from School Department funds. He represents that he is not associated with the other two Assistant Solicitors, who prosecute criminal manners brought by the Police Department and advise the Zoning and Planning Boards, respectively. He indicates that the Solicitor advises the Council on all matters.

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. See R.I. Gen. Laws §§ 36-14-5(a) and 7(a). The Code further provides that he shall not engage in any employment that will impair his independence of judgment as to his public duties. See R.I. Gen. Laws § 36-14-5(b). He 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 Commission concludes that the petitioner may not represent private clients in matters before the Coventry Zoning Board, Planning Board, and Tax Assessment Review Board while also serving as the Assistant Solicitor within that municipality. The Assistant Solicitors advise these public bodies on behalf of the Office of the Town Solicitor. For the petitioner to represent private clients in matters before municipal bodies advised by the other Assistant Solicitors who, in effect, are part of the same public office, that of the Town Solicitor, likely would impair the petitioner’s independence of judgment as to the discharge of his official duties in the public interest, thus triggering the prohibitions contained in R.I. Gen. Laws § 36-14-5(b). The Code further prohibits the petitioner from representing private clients in criminal cases brought by the Coventry Police Department. Here, another Assistant Solicitor, again a member of the same public office, acting on behalf of the Office of the Town Solicitor, represents the Town in criminal cases brought by the Police Department. Similarly, the petitioner’s representation of private clients in such matters likely would impair his independence of judgment as to his public duties. See R.I. Gen. Laws § 36-14-5(b).

Finally, the petitioner is prohibited from representing clients before the Town Council and/or any other municipal bodies for which the Solicitor serves as legal counsel. In A.O. 98-55, the Commission opined, inter alia, that the Central Falls Solicitor may present applications for zoning variances on behalf of the City to the Central Falls Zoning Board of Review if the Assistant Solicitor acts as the Board’s advisor. There, however, the Solicitor neither hired nor exercised any supervisory responsibilities for the Assistant Solicitor. In the instant matter, the Solicitor is responsible for hiring the petitioner, subject to the Council’s approval. For the petitioner to appear before the Solicitor and/or the other Assistant Solicitors in adversarial proceedings would create an appearance of impropriety, and likely create circumstances that would lead to an impairment of independence of judgment on behalf of the petitioner, and/or the improper use of confidential information or office. See R.I. Gen. Laws §§ 36-14-5(b), (c), & (d).

Code Citations:

36-14-5(a)
36-14-5(b)
36-14-5(d)
36-14-7(a)

Related Advisory Opinions:

99-68
99-67
99-23
98-120
98-80
98-57
98-55
98-42
97-119
97-16
96-22
95-108
81-73

Keywords:

Acting as agent
Private employment