Advisory Opinion No. 2014-25
Approved: August 19, 2014
Re: Zaida Rivera
The Petitioner, an administrative aide at the Rhode Island Commission for Human Rights, a state employee position, requests an advisory opinion regarding whether the Code of Ethics prohibits her from representing herself before the Commission for Human Rights relative to a charge of discrimination that she filed against a private employer.
It is the opinion of the Rhode Island Ethics Commission that the Petitioner, an administrative aide at the Rhode Island Commission for Human Rights, a state employee position, is not prohibited by the Code of Ethics from representing herself before the Commission for Human Rights relative to a charge of discrimination that she filed against a private employer.
The Petitioner is currently an administrative aide at the Rhode Island Commission for Human Rights (“CHR”), where she has worked for over nine years. The CHR is a board comprised of seven members who are appointed by the Governor, with the advice and consent of the Senate. R.I. Gen. Laws § 28-5-8.
The [CHR] enforces Rhode Island antidiscrimination laws in the areas of employment, housing, public accommodations, credit and delivery of services. Through impartial investigation, formal and informal resolution efforts, predetermination conferences and administrative hearings, the [CHR] seeks to ensure due process for both complainants (charging parties) and respondents, to provide redress for victims of discrimination, and to properly dismiss cases against businesses and individual respondents when charges of discrimination lack evidentiary support.
The Petitioner states that her duties are generally to provide administrative support to the CHR but also include translation and outreach activities. She informs that she does not have any authority to participate in the determination of charges of discrimination.
The Petitioner represents that she had outside, part-time employment with a private employer. She states that she filed a charge of discrimination against that private employer under the Fair Employment Practices Act (R.I. Gen. Laws §§ 28-5-1 to -42), which is enforced by the CHR, and under Title VII of the federal Civil Rights Act of 1964, which is enforced by the Equal Employment Opportunity Commission (“EEOC”). As a result of state law, her charge of discrimination against her private employer was required to be filed with CHR, her public employer.
The Petitioner represents that her charge was first reviewed by the EEOC, which concluded that it did not have jurisdiction under federal law. At this time, the Petitioner would like to continue to pursue this charge of discrimination before the CHR to ascertain if she has a right under state law. She states that she would like to exercise her rights at the CHR in order to have the opportunity to see the results of any investigation conducted by the CHR. She further states that it is more economical for her to pursue this charge administratively before the CHR, prior to taking any action in Superior Court.
Cognizant of the Code of Ethics, the Petitioner seeks an exception to the Code of Ethics’ prohibition on representing herself before the state agency by which she is employed in order to exercise her rights under the Fair Employment Practices Act. She represents that she would recuse herself from any CHR work related to her charge of discrimination.
Section 5(e) of the Code of Ethics prohibits public officials and employees from representing themselves before a state or municipal agency of which they are a member or by which they are employed. R.I. Gen. Laws § 36-14-5(e); Commission Regulation 36-14-5016(a)(1). Public officials and employees are similarly prohibited from authorizing another person to appear on their behalf before a state or municipal agency of which they are a member or by which they are employed. Commission Regulation 36-14-5016(a)(2). Section 5(e)’s prohibitions continue while the employee remains in office and for a period of one year thereafter. In contrast to most other Code of Ethics provisions, recusing from any related official duties is insufficient to avoid section 5(e) conflicts, absent an express finding by the Ethics Commission in the form of an advisory opinion that a hardship exists.
In the instant matter the Code of Ethics generally prohibits the Petitioner from representing herself or authorizing another person to represent herself before the state agency by which she is employed. However, section 5(e)(1) specifically authorizes exceptions to this prohibition, which the Commission has granted in certain circumstances, to allow a public employee to represent herself before her own agency upon recusal and based upon a finding that a denial of such self-representation would result in a hardship.
The Petitioner has filed her charge of discrimination with the CHR under the Rhode Island Fair Employment Practices Act, which states: “The right of all individuals in this state to equal employment opportunities, regardless of race or color, religion, sex, sexual orientation, gender identity or expression, disability, age, or country of ancestral origin, is recognized as and declared to be a civil right.” R.I. Gen. Laws § 28-5-5. Thus, the Petitioner seeks to exercise her civil rights by representing herself before the CHR, a state agency by which she is employed. We find that it would be a hardship for the Petitioner if she was prohibited by the Code of Ethics from exercising her civil rights under state law.
Therefore, it is the opinion of the Ethics Commission that the unique circumstances herein justify the application of the hardship exception to section 5(e) of the Code of Ethics. Accordingly, the Petitioner is not prohibited by the Code of Ethics from representing herself before the Commission for Human Rights relative to a charge of discrimination that she filed against a private employer provided that: (1) she recuses from all CHR work related to her charge of discrimination; and (2) she does not use her public office to obtain any confidential information related to her charge of discrimination, in accordance with section 36-14-5(d). Notice of recusal shall be filed with the Ethics Commission in accordance with section 36-14-6.
This Advisory Opinion is strictly limited to the facts stated herein and relates only to the application of the Rhode Island Code of Ethics. Under the Code of Ethics, advisory opinions are based on the representations made by, or on behalf of, a public official or employee and are not adversarial or investigative proceedings. Finally, this Commission offers no opinion on the effect that any other statute, regulation, constitutional provision, policy, or canon of professional ethics may have on this situation.
Commission Regulation 36-14-5016
 The CHR has a contract with the EEOC in which charges that are subject to the jurisdiction of both agencies are investigated by one of the agencies and then the result is reviewed and often adopted by the other agency.
 Generally, if the CHR finds that it has jurisdiction a case proceeds in the following manner. First, the CHR will investigate the charge of discrimination and attempt to settle the charges. If a case cannot be settled, a staff investigator will summarize the information and submit it to one of the Commissioners for determination of whether probable cause exists. If probable cause is found, either party can elect to have the case heard in Rhode Island Superior Court or, if neither side elects, the case will proceed to an administrative hearing before the CHR. If probable cause is not found, the complainant can appeal or, if the case has been filed within two years, request a notice of right to sue in state court. R.I. Gen. Laws § 28-5-28 provides that “any complainant, intervener, or respondent claiming to be aggrieved by a final order of the [CHR] may obtain judicial review of the order . . . in the superior court . . . .”
 It is significant to note that this is a unique situation for which there are no analogous advisory opinions because most hardship exceptions are requested by a public official or employee relative to their ownership interests in real property.