Advisory Opinion No. 99-18

Re: Peter D. Ruggiero, Esq.

QUESTION PRESENTED

The petitioner, a private attorney who also is retained by the Town of Glocester as a certified planner, requests an advisory opinion as to 1) whether he may represent clients and testify as a planner before municipal boards and commissions in the City of Warwick, if he wins election as Warwick Democratic City Committee Chairman; and 2) whether he may represent clients before municipal boards and commissions in the Town of Glocester.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a private attorney who also is retained by the Town of Glocester as a certified planner, may represent clients and testify as a planner before municipal boards and commissions in both the City of Warwick and the Town of Glocester given that he would not be subject to the Code of Ethics as either 1) Warwick Democratic City Committee Chairman or 2) an independent contractor for the Town of Glocester.

The petitioner advises that, as a private attorney, he represents clients before municipal boards and commissions in the City of Warwick. He represents that he also testifies before said boards and commissions as a certified planner. He indicates that he is seeking the position of Warwick Democratic City Committee Chairman. The petitioner further advises that in 1998 the Town of Glocester retained him as an independent contractor to revise the Town’s Comprehensive Plan. He wishes to represent private clients before Town boards and commissions on matters unrelated to his duties as a planner.

The Code of Ethics provides that state and municipal elected officials, state and municipal appointed officials, and employees of state and local government, boards, commissions, and agencies are covered by the Code. See R.I. Gen. Laws § 36-14-4. An employee is defined as any full-time or part-time employee in the classified, non-classified and unclassified service of the state or of any city or town within the state, any individual serving in any appointed state or municipal position, and any employee of any public or quasi public state or municipal board, Commission, or corporation. See R.I. Gen. Laws § 36-14-(2)(4). Here, since the Warwick Democratic City Committee is not a governmental agency, the petitioner would not be subject to the Code of Ethics. Accordingly, the petitioner may represent clients and testify as a planner before municipal boards and commissions in the City of Warwick if selected as Committee Chairman.

Further, the Superior Court has held that independent contractors are not employees, as the term is defined in the Code of Ethics. See Suzanne Worrell Gemma, et al. v. Rhode Island Ethics Commission (C.A. No. 94-3404, filed Sept. 17, 1994) (concluding that an attorney contractually retained by the State was not an employee, but an independent contractor and, accordingly, was not subject to the revolving door provisions set forth in R.I. Gen. Laws § 36-14-5(o)). Based on that ruling, the Commission concluded that vendors hired by City of Newport for property inspections were independent contractors and not employees and, accordingly, were not bound by the conflict of interest provisions in the Code of Ethics. See A.O. 97-147 (advising the City of Newport Tax Assessor that the City could accept bids for property inspection services from vendors that had testified and may testify in proceedings before the Board of Tax Appeals and/or the Superior Court on behalf of litigants whose interests were contrary to those of the City of Newport since the vendors, as independent contractors, were not covered by the conflict of interest provisions contained in the Code of Ethics).

Consequently, independent contractors do not fall under the jurisdiction of the Ethics Commission and are not covered by the conflict of interest provisions contained in the Code of Ethics. Therefore, the petitioner may represent clients before the Town of Glocester since, as an independent contractor, he is not subject to the conflict of interest provisions set forth in the Code.

Code Citations:

36-14-2(4)
36-14-4
36-14-5(a)

Related Advisory Opinions:

98-107
98-49
97-147
97-141
96-78
95-51
88-47

Related Case Law:

Gemma v. R.I. Ethics Commission, (R.I. Sup. Ct.,
C.A. No. 94-304, filed September 17, 1994)

Keywords:

Code jurisdiction
Political activity