Advisory Opinion No. 2004-19

Re: Albert DiFiore, Esq.

QUESTION PRESENTED:

The petitioner, legal counsel to the Planning Board and Zoning Board of Review for the Town of West Warwick, independent contractual positions, requests an advisory opinion as to whether he may advise these boards in connection with matters in which his private law clients appear.

RESPONSE:

It is the opinion of the Rhode Island Ethics Commission that the petitioner as an independent contractor is not subject to the Code of Ethics and, therefore, is not constrained by its conflict of interest provisions. See R.I. Gen. Laws § 36-14-4.

The petitioner makes the following representations: He has been retained as legal counsel to the Planning Board and Zoning Board of Review for the Town of West Warwick. He is neither elected nor appointed to these positions, but serves in both capacities as an independent contractor. He is not a Town Solicitor or an Assistant Solicitor and has no association with either position. He is not an employee of the Town Council. He is not eligible for municipal employee benefits. The Town of West Warwick affords him no secretary, staff or office space. Pursuant to his agreement with the Town, the petitioner receives a monthly stipend in the amount of $1000 as well as an hourly fee for legal representation not included in his agreed upon duties.

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. However, independent contractors of a state or municipal government are neither “employees” nor appointed officials subject to the provisions of the Code of Ethics. In 2003, the petitioner requested an advisory opinion regarding whether he, as legal counsel to the East Greenwich Planning Board, could represent clients before other boards and commissions in the Town of East Greenwich prior to the expiration of one year from the termination of his position. Based upon the petitioner’s representations, the Commission concluded that the petitioner was an independent contractor and, therefore, was not subject to the Code of Ethics. See A.O. 2003-41. See, e.g., Gemma v. Rhode Island Ethics Commission, No. PC94-3404 (R.I. Super. Ct., 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)); A.O. 2001-60 (finding that the petitioner, the District Solicitor for the Union Fire District of Wakefield and legal counsel to the State Labor Relations Board, was an independent contractor and not subject to the Code of Ethics); A.O. 2001-34 (finding that the petitioner, legal counsel to the Rhode Island Ethics Commission, was an independent contractor and not subject to the Code of Ethics); A.O. 99-18 (finding that the petitioner, a private attorney retained by the Town of Glocester as a certified planner, was an independent contractor and not subject to the Code of Ethics); A.O. 98-85 (finding that the petitioner, legal counsel to the Cranston Housing Authority and legal counsel to the Narragansett Bay Commission, was an independent contractor and not subject to the Code of Ethics).

Here, the petitioner informs that he is neither elected nor appointed to his positions, but serves in both capacities as an independent contractor. As such, he does not fall under the jurisdiction of the Ethics Commission and is not subject to the Code of Ethics. See R.I. Gen. Laws § 36-14-4.

The petitioner is advised, however, that this opinion solely addresses whether the Code of Ethics prohibits him, in his capacity as an independent contractor, from advising municipal boards that have contractually retained him in connection with matters in which his private law clients appear. This opinion does not, and cannot, address whether the Rules of Professional Conduct or any other statute, charter, ordinance, ruling or policy prohibit such conduct. The Ethics Commission does not exercise jurisdiction over those other provisions of law and, therefore, is not empowered to issue advisory opinions addressing or interpreting their effect.

Code Citations:

36-14-4

Related Advisory Opinions:

2003-41

2001-60

2001-34

99-18

98-5

Related Case Law:

Gemma v. Rhode Island Ethics Commission, No. PC94-3404 (R.I. Super. Ct., Sept. 17, 1994)

Keywords:

Code jurisdiction