Advisory Opinion No. 2005-12 Re: Edward R. McCormick, III QUESTION PRESENTED: The petitioner, the Chairman of the Cumberland Zoning Board of Review, a municipal appointed position, requests an advisory opinion as to whether he may be appointed to and serve as the Cumberland Assistant Town Solicitor, given that the Assistant Town Solicitor serves as legal counsel to the Zoning Board of Review. RESPONSE: It is the opinion of the Rhode Island Ethics Commission that the petitioner, the Chairman of the Cumberland Zoning Board of Review, a municipal appointed position, may accept appointment to and serve as the Cumberland Assistant Town Solicitor, upon his resignation from the Zoning Board of Review, notwithstanding the fact that the Assistant Town Solicitor serves as legal counsel to that public body. The petitioner advises that he has served as a member of the Town of Cumberland Zoning Board of Review for the past five years, presently serving as its Chairperson. The Cumberland Town Council is the Zoning Board of Review’s appointing authority. The petitioner informs that the Mayor’s Office recently nominated him for appointment to the vacant position of Assistant Town Solicitor and the Town Council voted to approve his appointment on February 16, 2005. He represents that the Assistant Town Solicitor serves as legal counsel to the Zoning Board of Review, attending Board meetings and providing legal opinions on applications before the Board. The petitioner inquires whether he may be appointed as Assistant Town Solicitor and, if so, whether the Code of Ethics imposes any limitations on the services he may perform for the Town. He represents that he will not serve as legal counsel to the Zoning Board of Review prior to his receipt of an advisory opinion from the Commission. Under the Code of Ethics, a public official may not represent himself or any other person before any state or municipal agency of which he is a member or by which he is employed. R.I. Gen. Laws § 36-14-5(e)(1), (2). This prohibition applies not only during the period of employment or public office, but is extended for a period of one year after he has officially severed his position with said state or municipal agency. R.I. Gen. Laws § 36-14-5(e)(4). Pursuant to Commission Regulation 5006, no elected or appointed official may accept any appointment by the body of which he or she is a member, to any position which carries with it any financial benefit or remuneration while a member of the body and for a period of one year after termination of membership on said body, unless the Ethics Commission shall give its approval of such appointment. Regulation 5006 further provides that the Commission shall not grant such approval unless it “is satisfied that denial of such employment or position would create a substantial hardship for the body, board, or municipality.” In an analogous context, the Commission previously opined that a member of the Jamestown Planning Commission could accept employment as the Jamestown Town Planner and act as an advisor to the Planning Commission, provided that she resigned her position with the Planning Commission. A.O. 97-125. There, the Town Council served as the appointing authority for the Planning Commission and the hiring authority for the Town Planner position. The Commission concluded that Regulation 5006 did not bar her acceptance of the Town Planner position, given that the Planning Commission had no involvement in the hiring process. Further, the Commission found that section 5(e)(4)’s prohibitions did not apply to her role as advisor to the Planning Commission, representing the interests of the Town of Jamestown, as opposed to the representation of any private financial interests. Similarly, the Commission concludes that the instant petitioner may accept appointment to the position of Assistant Town Solicitor and, upon his resignation from the Zoning Board of Review, act as legal counsel to the Board. Such an appointment would not run afoul of Regulation 5006 since the Mayor and the Town Council act as the appointing authority for said position. Further, in his new capacity as Assistant Town Solicitor, the petitioner would be representing the Zoning Board of Review as its legal counsel, rather than representing himself or any other person before that public body. His role as legal advisor to the Board would not place him in a conflict of interest situation or present the possibility of improper influence, primarily because his role is to serve the interests of the Town of Cumberland, not some private financial interest. Accordingly, 5(e)’s prohibitions do not bar his acceptance of and service in the position of Assistant Town Solicitor. Code Citations: 36-14-5(e) 36-14-5006 Related Advisory Opinions: 2001-3 2000-58 97-125 Keywords: Appointing Authority Revolving Door