Advisory Opinion No. 2004-20

Re: William Dimitri, Esq.

QUESTION PRESENTED:

The petitioner, a Municipal Court Judge for the Town of Johnston, a municipal appointed position, requests an advisory opinion regarding whether the Code of Ethics prohibits his private legal representation of a Town Councilor's brother.

RESPONSE:

It is the opinion of the Rhode Island Ethics Commission that the petitioner, a Municipal Court Judge for the Town of Johnston, a municipal appointed position, is not prohibited by the Code of Ethics from providing private legal representation to a Town Councilor's brother.

The petitioner is one of two Municipal Court Judges in the Town of Johnston, having been appointed by the Town Council in 1997 and reappointed every two years thereafter. In his private capacity the petitioner is a practicing attorney. In or about 1998, Joseph Wells was elected to the Johnston Town Council. In 2001, the petitioner represented Councilman Wells' brother in a criminal matter pending in the United States District Court for the District of Rhode Island. Councilman Wells was not a party or a witness in that matter. Beginning in January 2004, the petitioner began representing Councilman Wells' brother in a different criminal matter pending in the Rhode Island District Court. Councilman Wells is neither a party nor a witness in this matter. Although this case was initially dismissed by the prosecutor, the charges have since been refiled. The petitioner asks whether the Code of Ethics prohibits his continued legal representation of Councilman Wells' brother, given the facts represented above.

Pursuant to the Code of Ethics, a public official may not accept other employment which will either impair his independence of judgment as to his official duties or employment, or that will require or induce him to disclose confidential information acquired by him in the course of and by reason of his official duties. R.I. Gen. Laws § 36-14-5(b). The Code further provides that a public official is prohibited from in any way using his public office or confidential information received through his office to obtain financial gain, other than that provided by law, for himself, his family, his business associates or any business by which he is employed or which he represents. R.I. Gen. Laws § 36-14-5(d). Moreover, a person subject to the Code is prohibited from having any interest, direct or indirect, or from engaging in any employment or transaction that is in substantial conflict with the proper discharge of his duties in the public interest. R.I. Gen. Laws § 36-14-5(a).

A substantial conflict of interest occurs if the public official has reason to believe or expect that he or any family member or business associate, or any business by which he is employed or represents will derive a direct monetary gain or suffer a direct monetary loss by reason of his official activity. R.I. Gen. Laws § 36-14-7(a).

None of these provisions of the Code of Ethics appear to be implicated by the facts as represented by the petitioner. The mere fact that the petitioner, in his private practice of law, represents the brother of a member of the Town Council (petitioner's appointing authority), does not lead to a conclusion or likelihood of impairment of the petitioner's independence of judgement as to his duties as a Municipal Court Judge. Similarly, these facts do not indicate that the petitioner is using his public office or confidential information obtained through that office to obtain any type of financial gain for himself or others. Finally, we can find no substantial conflict of interest between the petitioner's Municipal Court duties and his private representation of a person who is the brother of a Town Councilor. For these reasons, it is the opinion of the Commission that the Code of Ethics does not prohibit the petitioner's continued representation of a Town Councilor's brother.

Code Citations:

36-14-5(a)

36-14-5(b)

36-14-5(d)

36-14-7(a)

Keywords:

Private Employment