Advisory Opinion No. 2010-58 Rhode Island Ethics Commission Advisory Opinion No. 2010-58 Re: Samuel D. Zurier, Esq. QUESTION PRESENTED The Petitioner, a member-elect of the Providence City Council, a municipal elected position, requests an advisory opinion regarding whether, upon taking office, the Code of Ethics would permit his continued legal representation of the Providence Water Supply Board in a pending litigation matter. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not prohibit the Petitioner, a member-elect of the Providence City Council, from continuing to provide legal representation to the Providence Water Supply Board in a pending litigation matter, provided that the Petitioner recuses from participating in certain City Council discussions and voting as set forth in this opinion. The Petitioner was recently elected to the Providence City Council and is scheduled to be sworn into office in January 2011. In his private capacity the Petitioner is an attorney. The Petitioner represents that prior to the election he was hired by an insurance company to represent and defend the Providence Water Supply Board ("PWSB") in connection with two consolidated personal injury cases that are pending in the Superior Court. The Petitioner notes that the cases involve wrongful death claims by six (6) individuals who collectively are seeking damages in excess of twelve million dollars ($12,000,000). Since the City of Providence is named as a codefendant, the City Solicitor's office is also providing legal representation in coordination with the Petitioner. The Petitioner states that, although he was selected by the PWSB's insurance company, his client is the PWSB. Furthermore, the Petitioner informs that he submits his bills to the insurance company, but his payments come from the PWSB which then obtains full reimbursement from the insurer. The Petitioner describes a relationship between the PWSB and the City Council in which the City Council exercises some level of both fiscal and jurisdictional control over the PWSB. The Petitioner states that the PWSB is an "enterprise fund" of the City of Providence, with operations governed by the Providence City Charter. It has seven (7) members, two (2) of which are elected by the City council, four (4) of which are appointed by the Mayor, and the seventh is the City's Director of Finance serving ex officio. The City Council approves the PWSB's budget, but the Petitioner represents that the Rhode Island Division of Public Utilities regulates the PWSB and imposes a policy of preventing the generation of a profit for the City at ratepayers' expense. Given all of the above, the Petitioner asks whether the Code of Ethics permits his continued representation of the PWSB following his swearing-in as a member of the City Council. If permitted, the Petitioner states that for the duration of his representation of PWSB he would recuse from all matters that come before the Council involving the PWSB, including: (1) the Council's election of PWSB members; (2) the Council's review and approval of the PWSB budget; and (3) any general Council oversight of the PWSB. Additionally, because of the involvement of the City Solicitor in the lawsuit, the Petitioner states that he will recuse from any Council discussions and voting concerning the appointment or re-appointment of the Solicitor. Commission Regulation 36-14-5014 ("Regulation 5014"), entitled "Municipal Official Revolving Door," generally regulates the ability of a municipal elected official to engage in employment with an agency that is part of the municipality in which he serves. The regulation reads, in pertinent part: No municipal elected official or municipal school committee member, whether elected or appointed, while holding office and for a period of one (1) year after leaving municipal office, shall seek or accept employment with any municipal agency in the municipality in which the official serves, other than employment which was held at the time of the official’s election or appointment to office or at the time of enactment of this regulation, except as provided herein. Id. (Emphasis added). For purposes of Regulation 5014, “employment” includes “service as an independent contractor[.]” Id. Here, although the provision of legal services to a municipal agency would clearly constitute "employment" as that term is defined in Regulation 5014, it is equally clear that the Petitioner's engagement falls within the exception for employment held at the time of the official's election to office. Accordingly, the Petitioner's continued legal representation of the PWSB does not offend or violate Regulation 5014. The Petitioner may not, however, take on any new representation of the PWSB or any other Providence agency while he serves on the City Council and for one year after leaving office. See Regulation 36-14-5014(a). Although his representation of the PWSB in this particular matter may continue, the interaction between the Petitioner's private legal representation of the PWSB and his public duties on the City Council implicate other provisions of the Code of Ethics. Under the Code of Ethics, as a member of a City Council the Petitioner may not participate in any matter in which he has an interest, financial or otherwise, which 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 he has reason to believe or expect that he or any family member or business associate, or any business by which he is employed, 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). Additionally, pursuant to section 36-14-5(b), the Petitioner shall not accept other employment which will either impair his independence of judgment as to his official duties or require or induce him to disclose confidential information acquired by him in the course of his official duties. In Advisory Opinion 2008-72, the Commission opined that a towing company owned by a newly-elected member of the East Providence City Council could continue to be listed on the City's tow list and could continue to provide towing service to the City, consistent with Regulation 36-14-5014, given that the company's work for the City predated its owner's election to the Council. Although the Council member was permitted to continue providing towing services to the City, he was cautioned that he would be required to recuse from any Council matters involving his company, any of the other companies on the towing list, and any issues or matters relating to towing within the City. See also A.O. 2007-3 (opining that a Charlestown Town Council member could retain his part-time employment as a custodian at the Charlestown Senior Center, a municipal employee position, because it was municipal employment held prior to his election to the Town Council). As in these prior opinions, it is our opinion that the instant Petitioner must be diligent in identifying matters that come before the City Council that trigger a need to recuse. We note with approval the Petitioner's planned recusal from matters involving the election of PWSB members, the review and approval of the PWSB budget, the general oversight of the PWSB, and the appointment or re-appointment of the Solicitor. Other matters may arise before the Council that also require recusal, and the Petitioner is advised to recuse in such instances or to seek further advice from the Commission. Notice of recusal should be filed with both the City Council and the Ethics Commission pursuant to section 36-14-6. Finally, we caution that this opinion relates only to the application of the Code of Ethics, and we offer no opinion whatsoever as to whether the Petitioner's work for the PWSB comports with any other code, statute, regulation, ruling, charter, ordinance, bylaw, policy or provision of law. Code Citations: § 36-14-5(a) § 36-14-5(b) § 36-14-6 § 36-14-7(a) Commission Regulation 5014 Related Advisory Opinions: A.O. 2008-72 A.O. 2007-3 Keywords: Contracts Private Employment